Misuse of Drugs Amendment Bill (No 3) Government Bill Explanatory note General policy statement The purpose of the Bill is to ensure the Misuse of Drugs Act 1975 ("the principal Act") is better able to meet its objective, which is to prevent the misuse of drugs. There are 2 main areas of amendment to the principal Act and the Misuse of Drugs Amendment Act 1978 ('the amendment Act"). The first relates to presumption of supply matters. Presumption of supply is the amount of a drug that a person would have in his or her possession to be legally presumed to be in possession of that drug for the purpose of supply. The policy objectives in relation to the amendments are to make the presump- tion of supply regime in the principal Act more flexible, responsive and accurate by- • adding presumption of supply matters to the Order in Council regime; and • amending the presumption of supply for methamphetamine; and • adding a Ministry of Justice official to the Expert Advisory Committee on Drugs' (EACD) membership. The second main area of amendment relates to concerns about the increasing prevalence of methamphetamine use and importations of ephedrine and pseudoephedrine which are believed to be destined for the manufacture of methamphetamine. Ephedrine and pseudoephedrine are key ingredients (or precursor substances) in the manufacture of methamphetamine. To address these concerns, the principal Act will be amended to- • create 2 new importing and exporting offences for precursor substances; and 186--1 2 Misuse of Drugs Amendment (No 3) Explanatory note create powers of search and seizure without warrant for ephe- drine and pseudoephedrine; and allow controlled deliveries of precursor substances (covered in Part 2 of the amendment Act). Part 1 Amendments to Misuse of Drugs Act 1975 The key changes made to the principal Act in this Part are to- • move presumption of supply matters to the schedules of the principal Act, so that they can be altered through the Order in Council regime: • provide that the presumption of supply amount for methamphetamine be set at 5 grams: . expand the membership of EACD to include a Ministry of Justice official: • create 2 importation and exportation offences for precursor substances imported into or exported from New Zealand. Those offences are- • importing or exporting a precursor substance knowing it will be used to commit an offence; and • importing or exporting a precursor substance without reasonable excuse: . create a new Part 3 of Schedule 4 and- • extend powers in sections 18(2) and (3) to enter, detain, search and seize without warrant to precursor sub- stances listed in the new Part 3 of Schedule 4;,and • list ephedrine and pseudophedrine in the new Part 3 of Schedule 4: move the defence available to the offence of possession of a needle or syringe from the Health (Needles and Syringes) Regulations 1998 into the principal Act and reverse the cur- rent onus of proof on the defendant: make consequential amendments to the principal Act and other Acts as a result of the creation of the two importation and exportation of precursor substances offences. Explanatory note Misuse of Drugs Amendment (No 3) 3 Presumption of supply matters Section 6(6) of the principal Act currently provides for a rebuttable presumption that when a person is found with a certain amount of a controlled drug, he or she possesses the drug for the purpose of dealing (by sale or supply). The onus is on the person found with the drug to prove that he or she was not supplying the drug and that the drug was intended for personal use. This presumption is referred to commonly as the "presumption of supply". Section 6(6) currently provides that presumption of supply is set at a default amount of 56 grams for all controlled drugs, except those that have a specific presumption of supply amount listed in that subsection. This gives rise to difficulties as at present the principal Act must be amended every time there is a decision to set or alter a specific presumption of supply for a controlled drug. This process can result in long delays. The principal Act will be amended to move presumption of supply matters to the Schedules of the principal Act so they can be set or altered through the Order in Council regime. This is achieved by amendments to sections 2,4 and 6 of the principal Act by clauses 4 to 9 of the Bill. The Order in Council process is currently used for the classification of drugs. The amendment will allow for a more efficient process than passing an Act of Parliament. It will allow for scrutiny by the Health Committee and the House of Representatives and for a measure of public consultation. An expert group, the EACD, will continue to give advice on how controlled drugs should be classified and the level at which any presumption of supply should be set. It is intended that there will always be a specified amount at which presumption of supply operates. It is intended that the specified amount for each drug accord with the status quo (ie, it will be the amount currently specified in section 6(6)(a) to (e) or the default 56 grams in section 6(6)(f)). For the future, amendments to the levels will be what Parliament determines following a recommendation from EACD in the normal Order in Council process. Membership of EACD The membership of EACD is to be expanded by the inclusion of a Ministry of Justice official. This will allow for the committee to have expertise in matters relating to the justice system, including matters 4 Misuse of Drugs Amendment (No 3) Explanatory note which are not solely criminal justice matters. In the Health Commit- tee' s reports to the House on both the Misuse of Drugs (Changes to Controlled Drugs) Order 2003 and the Misuse of Drugs (Classifica- tion of Fantasy) Order 2001, the committee stated that they "believe that it is essential for the Ministry of Justice to be involved in the EACD process because of the sentencing implications of the sched- uling of new drugs and the re-scheduling of existing drugs". Offences in relation to importation and exportation of precursor substances Concerns have been raised that the enforcement provisions in the principal Act available to deal with precursor substances are inade- quate. Concern has centred on ephedrine and pseudoephredrine, which are key precursor substances used in the illicit manufacture of methamphetamine. Within New Zealand these precursor substances are sourced through "chemist shopping" and theft. Due to tighter domestic policing, ephredrine and pseudoephredine are now increasingly being imported from overseas. This has highlighted the fact that at present the principal Act contains no offence relating to the import or export of precursors for the manufacture of illicit drugs, which is an anomaly. Currently the absence of specific offence provisions in relation to the illegal importation or exportation of a precursor substance has caused difficulties: when persons in possession of a precursor sub- stance are stopped at the border, authorities can lay charges for the offence of possessing a precursor. However, possession is impossi- ble to prove in cargo and mail interceptions as no person has physi- cal possession or control of the substance. When ephedrine and pseudoephredrine are intercepted by Customs through international mail, commercial cargo, or at international airports, the substances are seized under provisions of the Medicines Act 1981 and the Customs and Excise Act 1996. The penalties provided by the Medicines Act 1981 are seen as inappropriate for dealing with substances that are precursors for controlled drugs. The Government has agreed to the amendment of the principal Act to create 2 new offences- • enabling Customs officers to seize and detain precursor sub- stances imported into New Zealand or exported from New Zealand with the knowledge that they would be used to com- mit an offence against section 6(1)(b) (which is the offence of Explanatory note Misuse of Drugs Amendment (No 3) 5 producing or manufacturing any controlled drug) or an offence against the law of a country that corresponds to such an offence, with a maximum penalty of 7 years' imprison- ment; and • enabling Customs officers to seize and detain precursor sub- stances imported into New Zealand or exported from New Zealand without reasonable excuse, with a maximum penalty of 1 year's imprisonment. The second offence is a strict liability offence which will prohibit importing or exporting precursor substances without reasonable excuse. The offence, inter alia, would attract a maximum penalty of 1 year' s imprisonment. Some examples of what may constitute a reasonable excuse are provided, including that the imported or exported substance will be used for a lawful purpose. Amendment to Schedule 4 The Government has agreed that the principal Act be amended to-- • create a new Part 3 of Schedule 4 and extend powers in section 18(2) and (3) to enter, detain, search and seize without warrant to precursor substances in the new Part 3 of Schedule 4; and • list ephedrine and pseudoephedrine in the new Part 3 of Schedule 4. Police are attempting to address the increasing illicit trade in methamphetamine through targeting the precursor substances and chemical reagents used to manufacture the drug, principally, ephe- drine and pseudophedrine. The power to detain, search and seize without warrant under section 18 of the principal Act is restricted to Classes A, B l and C 1 controlled drugs. In particular, the police are concerned that they are unable to respond quickly (ie, without a warrant) when they are investigating shoppers who purchase large amounts of pharmacy-only pseudophedrine medication to pass on to illicit manufacturers (pill shoppers).