Misuse of Drugs Amendment Bill (No 3)

I rise to speak at the second reading of the Misuse of Drugs Amendment Bill (No 3). Since the first reading of this bill, some quite substantial changes have been made. Most of those have occurred because of the inclusion of Supplementary Order Paper 298, tabled in the Health Committee in the name of the Hon Jim Anderton. The original bill included provisions to change the amount of a drug that a person could have in his or her possession before being legally presumed to be in possession of that drug for the purpose of supply. In this bill we are looking specifically at methamphetamine. The original bill also proposed to add a Ministry of Justice official to the Expert Advisory Committee on Drugs, in order to bring a justice perspective to that committee, which has been primarily charged with the health concerns regarding drugs and any new substances that come into that category.

At the first reading we were looking at a bill that created two new importing and exporting offences for precursor substances. It included new powers for search and seizure without warrant for ephedrine and pseudoephedrine, and also had some interesting provisions to allow what are called controlled deliveries, so that the police can establish who is involved, beyond the border control issues, with the manufacture and supply of illegal drugs. I think that that is a very good thing. When we are trying to look, in particular, at the organised crime scene around drugs, it is important that we allow the police to have those kinds of powers to investigate and follow through on controlled deliveries.

The first reading of this amendment bill included a revised approach to offences related to the possession of needles and syringes. The Ministry of Health funds the Needle and Syringe Exchange Programme, which has been set up to reduce the spread of HIV/AIDS, hepatitis C, and other blood-borne viruses among injecting drug users. Currently, those caught by the police in possession of needles and syringes have to prove that the equipment was indeed supplied by the needle exchange or through some legal means. The outcome is that it has been a very time-consuming matter for those staffing the needle exchanges, who spend unreasonable amounts of time in court as defence witnesses. This amendment reverses the onus of proof requirements, so that the prosecution must now provide evidence that the equipment was not legally obtained.

There was some discussion in the select committee about considering—and even in the last few days there have been calls by the New Zealand Drug Foundation to do this—an extension of those provisions. Some would prefer to see needles and syringes eliminated from being able to be used evidentially. My caucus and I looked again at the request of the New Zealand Drug Foundation—

💬 Peter Brown: I raise a point of order, Madam Speaker. There are people chattering all over the place. I can hardly hear the member speak.

💬 Madam DEPUTY SPEAKER: Would members please keep the chatter down.

I was just talking about the consideration given to the issue of whether general equipment like needles and syringes should be able to be used evidentially in court cases. One concern we in United Future had is that although there may be some purpose, particularly from a health perspective, in making sure that somebody cannot receive an additional charge when he or she is charged with the possession of an illegal substance, a person should be able to face an additional charge of being in possession of a needle and syringe when that relates to the other end of drug offences—when people are being charged with the offence of supply. When the police—and we did discuss this with the police when they were at the select committee—discover, for instance, a box of syringes and needles in a place they are searching, and when the offence is the supply of drugs and the supplier is obviously well geared up to facilitate the drug use of his or her clients, then we felt, and the police certainly believed, that the police should be allowed to use needles and syringes evidentially as part of their case. We certainly support that. I think the majority of the select committee members felt that just changing the onus of proof was a sufficient measure, and that we would still like to leave the police some flexibility in that regard.

The new Supplementary Order Paper was received with mixed feelings by the United Future caucus. In our opinion, the intention of the Minister to respond quickly to the call from many community agencies to at least regulate, or to ban, new party pills and products as they come on to the market was a noble gesture. The Supplementary Order Paper the Minister has tabled certainly allows Parliament to respond with speed. However, we were concerned that the more substantial legislative work that needs to be done to regulate substances deemed by the expert advisory committee to be of a low risk would have been better served by a more comprehensive legislative model, put in place separate from the Misuse of Drugs Act. Our concerns were heightened when we realised that, by creating a new class of drug under the Misuse of Drugs Act, with all its existing Order in Council provisions, there was a very real possibility that substances like cannabis could be downgraded by those same Order in Council provisions in the future. We considered that to be a very real threat. I certainly do not believe, and United Future certainly does not believe, that that was ever the intention of the Minister, so we moved to have discussions with the Government around that issue.

We are very pleased to see that some limitations have been put into the bill on the power of the Order in Council provisions, so that full public and parliamentary scrutiny would be required before any such changes took place. However, we accept that there is a place in this bill for Orders in Council. The Regulations Review Committee cautions us about the overuse and misuse of Order in Council provisions, but we see a place for them. When a crisis arises that the police are aware of and want Parliament to respond to quickly, Order in Council provisions are an appropriate way to allow the Government to respond by bringing in some controls on substances that cause concern.

Having secured those changes, United Future is pleased to see this legislation advance, but we certainly want to be in discussion with whoever is in Government after the election. We want to see the continuation of the ongoing legislative work that needs to be done to have a separate restricted substances Act put in place, to give legal and regulated substances their own legal framework separate from that for illegal substances. The committee’s commentary on the bill suggests that that work should be done, and we are very much in support of that. Given the speed at which the new social tonics are being developed and marketed, I believe that our next Government needs to make that work a priority. We support the second reading of this bill.

I am pleased to take a call in the second reading debate on the Misuse of Drugs Amendment Bill (No 3). I thank the members of the Health Committee. This was a very complex bill that came before the committee. I think its complexity comes from the fact that we are dealing with a drug-regulating regime that was established in 1975 by the Misuse of Drugs Act and subsequently amended by the Misuse of Drugs Amendment Act 1978. That is 30 years ago, and we are now finding that we do not always have the right framework in current legislative provisions to deal with the issues that we are dealing with in this bill.

The committee was quite happy with the amendments in the bill, which address matters like presumption of supply levels being amended by Order in Council. We spent a lot of time on that. We looked at thresholds for presumption of supply in relation to methamphetamine. It was of great concern to us that although the drug had been reclassified in a previous amendment to the Act, the thresholds had been set at the wrong level, so we needed to reconsider the threshold. We did not have any problem with this.

The bill also strengthens the provisions for offences of importing and exporting the horrible precursor substances, ephedrine and pseudoephedrine, that are now used in manufacturing P. That problem has caused us a lot of concern.

The trends we have seen in pill shopping at pharmacies have changed, and we needed to move our eye to the importing and exporting of precursors. We needed to make a shift to strengthening the powers of the Customs Service in the monitoring of importing and exporting.

Supplementary Order Paper 298 added a new Part 3 to the bill, which relates to benzylpiperazine. I note that this Supplementary Order Paper came in on 9 November. This legislation is not a knee-jerk reaction to a new substance on the market. The media said we were rapidly pushing it through the House; we have not done that at all. We received the Supplementary Order Paper in November, and here we are in June debating the second reading of the bill.

We had a lot of issues to grapple with over the current construct of the Misuse of Drugs Act and what we could do about a substance like benzylpiperazine. We also asked about some other substances out there, unregulated, that are causing concern because they are being used for their psychoactive effects. These include substances like “nos”—nitrous oxide. We even looked at things like nail polish remover and hairspray—products in the commercial market that are now being used for their psychoactive effects, for heaven’s sake! We had to grapple with how we could regulate these substances.

Everybody on the committee realised that a social problem with benzylpiperazine is emerging rapidly, and we also knew of problems with other products. So we were looking at a framework for dealing with these substances as restricted substances. I thank the committee for its work.

The concern was raised—which Judy Turner talked about—that we needed a stand-alone restricted substances bill, but we were advised that simply to get officials to work on developing a stand-alone bill, and to get advice and look at the policy of such a bill, would take about 6 months, and we were aware that we just did not have enough time for that at this stage of the political cycle. I was really pleased that in the end we agreed to do our best to get benzylpiperazine put on a restricted substances schedule. I thank the committee for that. I think it was a very pragmatic decision, which supported the Minister’s intention to show that we are going to manage the substances that are out there being used now and that we need to do something about.

So we went back to expeditious scheduling, which I think was put in the original bill for the very purpose of enabling us to respond quickly rather than have to amend standing legislation. We did not support the recommendation to develop a stand-alone bill.

I believe that now we have the framework in place it will allow us to add substances to the new schedule. I am very happy that the legislation is robust. We put all sorts of restrictions in the bill about sale and regulatory provisions that will make it a lot stronger. When we get to the Committee stage we will consider those aspects of the bill.

The Misuse of Drugs Act is designed to classify drugs that do harm in our society due to addiction and death. There are three categories: A, B, and C. The expeditious scheduling of drugs was originally set up by Wyatt Creech. He developed the initial legislation in 1999, and when the Labour Government came in, the Health Committee continued that work. It shows that we can work across party lines at times for good legislation for New Zealand.

The provision for expeditious scheduling under the Misuse of Drugs Act has been used for Ecstasy and for Fantasy, which at the time were causing the deaths of young New Zealanders. We needed to be able to respond quickly to the smart chemists—the people who can change the chemical structure of a drug rapidly to escape the ambit of the Act—who prey on young people. That is why we put in place approval by resolution of the House, which is called an affirmative resolution process. That new system set up an expert advisory committee that recommends to the Minister of Health that a drug be added to the schedule, and at what level. The Health Committee then reviews that recommendation for 1 month. This process was used for Fantasy, for Ecstasy, and for P, drugs that can cause death and serious addiction. P often causes the person taking it to become incredibly violent, and in this country we have seen some serious acts of violence committed by people who are taking it.

The bill we are debating today concerns the precursors of methamphetamines. National members totally support the original bill that came to the Health Committee. We want to do all we can to curb drug abuse in this country. Of course, legislation against drug abuse is only the tip of iceberg. Getting to the cause of why our young people wish to take drugs in the first place is something we all need to battle with on a societal level. National totally supports that.

The situation with Supplementary Order Paper 298, however, is somewhat different. The Regulations Review Committee stated to us that the bill proposes moving presumption of supply matters to the schedule of the principal Act, so that they may be set or altered by Order in Council and approved by resolution of the House. Normally a bill would come to the House, then go to a select committee after the first reading, and there would be submissions from the public.

Benzylpiperazine and legal highs, as they are known as at the moment, have no regulation around them. They do not fit under the Food Act, the Misuse of Drugs Act, or the Animal Products (Ancillary and Transitional Provisions) Act—they do not fit anywhere. So it is fair enough that they need some regulation around them to stop young people, especially the under-18-year-olds, using them. The Expert Advisory Committee on Drugs said that those drugs did not cause serious or moderately serious harm, but that they just needed regulation. Is it appropriate, we ask, to use the expeditious scheduling regime to regulate those drugs? The answer that National came to was no. We should have had an actual bill before the House so that we could get it right.

We have seen what happens when Governments rush things—members will remember the sherry tax, the intent of which was to stop young people, and it totally missed the target. So we must take our time to make sure—

💬 Hon Jim Anderton: It reduced it by half a million litres.

The Minister says it works. Young people now are queuing up in accident and emergency departments at night. It has not been working at all. I say to the Minister that more and more young people in the country are drinking alcohol. He may not like that, but that is the fact. Young people are in more damaging situations and in more motor vehicle accidents. We see more 14 and 15-year-olds in accident and emergency departments. It has not hit the target in any way whatsoever. It has been an utter failure. So I say to the Minister that he should open his eyes.

I return to the bill and the Supplementary Order Paper. No one disagrees with trying to do something about those so-called legal highs, but there has to be a process whereby we get it right; otherwise, we miss the target. Many times in this House I have seen people with good intentions, but all they do is put a lot of regulations in place that miss the target and do not achieve what they are intended to achieve. The problem is that we never go back and look at whether we have actually achieved our aims. No clear research takes place to see whether a piece of legislation worked; if it did not work there is nothing that lets us change it, or get rid of it and get something else. In this case, National members agreed with the advice of the Regulations Review Committee, and we felt that the extension of the procedures currently used for amending the classification of a controlled drug should not be extended in this way to something that is considered to be of only moderate harm and needing regulation. But we said we are totally committed to properly evolved legislation, dealing with restricted drugs and substances, being brought into the House and passed within 12 months.

The problem with solvent abuse is how one can tell whether an 18-year-old is buying a can of paint to spray paint a car, or whether he or she is actually going to sniff it. We need to listen to the people in the community about how to hit our target. No one disagrees with trying to get to the bottom of those problems, but we do not want to set up something that has to come back to the House and be amended. The select committee said it wanted to see a properly developed Act.

Another change that the select committee made was that one could only increase—not decrease—classification. I think that was because it was worried about a Labour-Green coalition. I remember when I sat on the Health Committee we went all over the country listening to people as part of the cannabis inquiry. That was simply because Labour needed the Greens. We spent a huge amount of money on the inquiry, going from one end of the country to the other listening to opinions on whether we should decriminalise cannabis. I think United Future was really concerned that if a Labour-Green coalition formed, we could see cannabis reduced down the schedule by that process. In the end, it could not get the support in the committee, and the majority agreed that one could only increase, not decrease, a classification by Order in Council. This would mean that a controlled drug could not be changed to a restricted substance without the controlled drug classification being removed by Parliament first. So it would have to come through the parliamentary process.

This is what is meant by unintended consequences. We rush those things through without proper scrutiny, then we have unintended consequences. The Associate Minister of Health may not be here the next time; he may not be in a Labour-Green coalition. If the people who thought they were promoting one thing are not there, they will get something else. It is called unintended consequences and it happens all the time. I say to the Minister that he should be glad that the legislation was limited to not being able to decrease the classification of a substance. We agreed with that limitation.

I was pleased to see the change to the needle exchange provision, whereby the onus of proof is moved from the one who has it in possession to those who are prosecuting. For those who go on the needle exchange programme the risk of HIV and hepatitis is high—because they are legally given those needles on the exchange programme. The current law has been an impediment to them, so National agreed with that.

All in all, we agreed with the originally introduced bill, but not the way that the Supplementary Order Paper was developed. So we will be supporting the bill as a whole, but not the Supplementary Order Paper, which is now Part 3 of this bill.

I will take just a very brief call on the Misuse of Drugs Amendment Bill (No 3), because I think it is a common-sense and sensible bill, just like this Labour-led Government, and I commend it to the House.

The New Zealand National Party certainly supports the original Misuse of Drugs Amendment Bill (No 3), which deals with changes to legislation concerning drugs. We recognise the extraordinary harm to health and safety caused by inappropriate use of controlled drugs.

I had the opportunity to sit in on the Health Committee for a very brief period, and a gentleman who actually manufactures party drugs was making a submission to the committee. I asked him what research had been done into the long-term effects of the use of party drugs. Of course, there has been none. I think that is an extraordinary oversight. Nobody has any idea what the cumulative effect, or the combination of effects, of using those party drugs is if people are using other medications, or if people have other conditions that predispose them to being affected by the contents of those party drugs. There has been absolutely no real research into the peripheral effects of the use of party drugs.

There should have been some requirement on the manufacturers of party drugs to provide information to the House, or to the authorities, or to whomever, that determines what the long-term effects of party drug usage is, and whether it has any peripheral effects on any other existing medical conditions. It is extraordinary that we have these party drugs, but we do not require a bit more oversight in respect of their use. I guess one reason that we are going through this whole process is to put some controls around those drugs and to see where that takes us. Although we are putting controls around them, we are not requiring any research into their effects. That is something that should be looked at. Perhaps some sort of requirement on the manufacturer to do research is necessary for us to have a better understanding of what those drugs have the potential to do if they are taken consistently on a long-term basis.

Certainly, it is fairly well-known that our young ones’ bodies are not well-developed; at the age of 18 they are still developing, and their bodies may not be able to handle these types of substances, particularly if they are mixed with alcohol—certainly, with the amount of alcohol they are consuming in this day and age, with the lowering of the drinking age, which I think was one of the bigger mistakes made by this Parliament.

National members are mindful of the Regulations Review Committee’s statements that the affirmative resolution procedure should not proliferate, that it should be used only in limited and exceptional circumstances, and that any extension of the procedure in relation to the Misuse of Drugs Act 1975 should be permitted only where it is a necessary adjustment to alter the schedules of controlled drugs, and essential in order to achieve the purpose of the Act in dealing with the serious risk of emerging drug threats. Of course, if we have done no long-term research into party drugs, into legal party highs, how do we know what the effects will actually be? There could be some emerging risk from long-term usage, but we do not know.

💬 Dr Wayne Mapp: What is the Government doing about it?

Yes, the member is absolutely right—what is the Government doing about that? It did not actually come up in the select committee, and nothing has been done about it, as far as I understand.

💬 Hon Jim Anderton: That’s rubbish.

Well, the question was asked at the select committee, so—

💬 Hon Jim Anderton: Well, ask a question of me.

The Minister was not at the select committee, and he was not the person producing the stuff. I would have thought that the person producing the stuff would actually know but, no—[Interruption] There was none. The producer said there was none, so unless somebody else is doing it, well—who would know? It is certainly a question, and perhaps the Minister would like to take a call and give us an explanation of his understanding of the research into party drugs and those legal party highs. We would certainly welcome the opportunity to listen to him give that explanation.

New Zealand National is very concerned about the increasing use of benzylpiperazine, party drugs, herbal highs, etc., particularly among the 18-year-old age group. It has been an emerging problem for some years, and we believe that the response should be well-considered legislation, with the public given opportunity for full submissions, and with nothing rushed through by way of Supplementary Order Papers. Everybody should have the opportunity to participate. In actual fact, I think there is too much haste in the promulgation of law in this Parliament, and I think the process should be slowed down somewhat.

So, as per the recommendations of the Regulations Review Committee, National members consider that legislation around restricted drugs, which are often legal substances, should be covered by primary legislation. We therefore do not support the Hon Jim Anderton’s Supplementary Order Paper, but instead commit that as a Government we would ensure that properly evolved legislation dealing with restricted drugs and substances was brought into the House and passed within 12 months. I note that many of the press releases around this legislation seem to be pretty well dominated by Mr Anderton.

💬 Hon Jim Anderton: I am the Minister.

Well, he seems to be capturing the moment, yet he is presenting a Supplementary Order Paper that has not gone through the full process. I think that is a bit of a shame. I am glad that we are supporting the original bill, and are not supporting the Supplementary Order Paper. I am very pleased we are taking that position.