Misuse of Drugs Amendment Bill

Part 2 of the Misuse of Drugs Amendment Bill contains clauses 12 and 13. These clauses deal with amendments to the 2005 amendment to the Misuse of Drugs Act. Essentially, clauses 12 and 13 amend section 31 of the Misuse of Drugs Amendment Act 2005 by repealing “Paragraph (b)(v) of the definition of substance” so that hazardous substances as defined in section 2(1) of the Hazardous Substances and New Organisms Act 1996 are no longer excluded from the definition of “substance” for the purposes of the 2005 amendment Act. That essentially means that at the current time a substance cannot fall under both the Misuse of Drugs Act and the Hazardous Substances and New Organisms Act, but this change allows substances to be able to come under the purview of both Acts.

I suppose, to be honest, this was not a part of the bill that attracted an awful lot of attention from submitters to the Health Committee. In fact, only three of the submitters at the select committee referred to clause 13, and nobody referred to clause 12. One was in favour of clause 13 and two were opposed. Those who were opposed to clause 13 were concerned that this provision would give the Environmental Risk Management Authority the ability to regulate substances listed in the schedules of the Misuse of Drugs Act. Submitters were, I suppose, concerned that the Environmental Risk Management Authority lacks expertise in this area, and would apply unduly strict criteria with high barriers to entry, which would mean that no legal products would meet the requirements to be approved as being safe.

I suppose that is very much part of the debate we have been having about how to actually determine that a product is safe, and how new substances are to be determined to be safe. However, that is not actually what this change does. Clause 13 does not propose to give the Environmental Risk Management Authority the ability to regulate psychoactive substances. Rather, the clause seeks to remove the exclusion that a hazardous substance cannot also be a restricted substance under the Misuse of Drugs Act. I suppose, given that that is the case, in fact what is actually occurring is probably in line with what the submitters would have liked to see. Essentially, the provision just smoothes the path for substances to be able to come under the purview of both of these Acts.

Under the Hazardous Substances and New Organisms Act a substance is “any element, defined mixture of elements, compounds, or defined mixture of compounds, either naturally occurring or produced synthetically, or any mixtures thereof:”, and I suppose that is exactly what Kronic, Dream, Spice, and the other synthetic cannabis products are. They are products that are made up of both synthetic and naturally occurring substances. From that point of view, that is the sort of thing that some submitters were concerned about: that in trying to establish whether something like Kronic is actually safe to come to market, if it had fallen under the Hazardous Substances and New Organisms Act, then that might not have been the most appropriate way to determine the safety of such a substance. Of course, that is not what clause 13 does. The submitters can rest assured that that is not actually how the system will work. In fact, we do not know exactly how the system will work at the moment, but that is for the Minister to work on, hopefully with some speed, to come up with a solution to that question.

I acknowledge the member who has just resumed his seat, Iain Lees-Galloway. I am tempted to say his explanation of what has actually happened is far too charitable. He tried to imply a degree of rationality in the processes that led to this change. In fact, what we are doing is correcting a cock-up; let us put it as bluntly as that.

When the Hazardous Substances and New Organisms Act was passed a change was made that meant that, in effect, a substance designated as a hazardous substance under the hazardous substances and new organisms legislation could thenceforth not be designated as a restricted substance under the Misuse of Drugs Act. Some arguments were advanced at the time that things should be dealt with under their own particular bits of legislation. I have been back to have a look at the Health Committee’s report from 2005. It had in mind keeping things like ordinary commercial or household products that are also psychoactive, such as butane gas, from being further brought under the control of the restricted substances framework. It overlooked, of course, that the consequence of being very specific in that area effectively made the restricted substances regime unworkable. So, we had a situation in which we have had the capacity to designate substances as restricted substances for some time, but until this amendment is passed it has actually not been possible to do so, given the almost countervailing provisions of the Hazardous Substances and New Organisms Act.

Although I appreciate the very lucid explanation given by the member who spoke earlier, and his charity in trying to apply some logic to the position that had developed, I think it is fair to say this is a technical amendment to clear up a mistake that was made way back in 2005. The mistake was not actually seen at that time as significant, because the rationale was actually about a different category of products. It was only when we started to look at a range of substances like the Kronics of this world, for instance, that we realised there was actually a problem, and that needs to be corrected. That is what this amendment does. It is very straightforward, and, as I say, I do not think it need delay the Committee for any great period of time. I appreciate and acknowledge the member’s very kind summary of the situation when he could have been far more vicious.

Taloha ni, Mr Chair. I thank the Minister in the chair, the Hon Peter Dunne, very much for being so frank about the motivation behind this part. I do not want to take up a hell of a lot of time in terms of speaking to Part 2 of the Misuse of Drugs Amendment Bill, but for those who are tuning in—and I think there actually will be quite a few people interested in this bill, given the relevance of the announcement made yesterday—there are some clarifications we want to seek.

While they are being sought, we thought it might be useful just to reinforce what my colleague Iain Lees-Galloway has said, and just to lay out exactly what Part 2 pertains to. It amends the Misuse of Drugs Amendment Act 2005 in just two technical clauses. Clause 13 repeals the definition of “substance” in section 31 of the 2005 Act, which claims that a substance “(a) means any mixture, preparation, or article that is manufactured for the primary purpose of being administered, ingested, inhaled, or injected in order to induce a psychoactive response; but (b) does not include any … (v) hazardous substance (as defined in section 2(1) of the Hazardous Substances and New Organisms Act 1996):”. Referring to that Act, under section 2(1), a hazardous substance means “unless expressly provided otherwise by regulations, any substance—(a) with 1 or more of the following intrinsic properties: (i) explosiveness: (ii) flammability: (iii) a capacity to oxidise: (iv) corrosiveness: (v) toxicity (including chronic toxicity): (vi) ecotoxicity,”. I am no scientist, as I have pointed out before in the debate on the Royal Society of New Zealand, but I know that that is definitely one of the clauses in the Act.

I guess when we are talking about substances that have those properties and we want to correct “a cock-up”—a direct quote from the Minister—

💬 Michael Woodhouse: A very technical term!

It is a very technical term and maybe we will come back to it tomorrow when we debate the Royal Society of New Zealand Amendment Bill again. But in looking at Part 2, and at the Minister correcting this legislation, I guess that when we are dealing with those properties this is a positive move—which we will support, as we are supporting this bill in its entirety and the Supplementary Order Paper the Minister has put forward.

I would just like to make a comment. I have mentioned this before in the Chamber, but I would like to reiterate it. I was speaking to an old member of Parliament—sorry, a member of Parliament who had been here a while ago—who is older than Mr Chair Robertson, of course, and we were talking about the Committee stage. I bemoaned the fact that during the Committee stage what was happening was that Labour members were putting a lot of questions out there. I felt that the vast majority were relevant to the Minister in the chair, and the Minister in the chair at the time was just sitting there reading, and not even taking any notice whatsoever.

But do I note that whenever Associate Minister of Health the Hon Peter Dunne—and I would like to commend him on this—is sitting in the chair, whether it is on a tax bill or this sort of health bill, if Labour members ask questions or make comments, he always stands up and addresses the questions or comments. Some of them are rather banal, I must admit, but he always addresses them, and I think that is in the true spirit of the parliamentary process. It just shows that the Minister has been around for a while. He respects the House, even if sometimes we are in major disagreement with regard to some of the policies that he advocates. I would like to thank the Minister for doing that, because I think it is in the true spirit of what the Committee stage is about—absolutely.

As everyone said, in rather unparliamentary terms—I am surprised, Mr Chair, being the stickler that you are for process, that you have not pulled up members for the use of the word “cock-up”—

💬 Hon Member: Be careful!

The Minister used it, and, as the Minister said, the clause seeks to remove the exclusion that a hazardous substance cannot also be a restricted substance. When we get to bills a lot of these issues are about semantics, and when we go through the Committee stage on a lot of bills, I suspect that those who are listening, or the person who is listening, must sit there and go: “Goodness me! This really is semantics.” But when it comes to law, it really has to be quite tight, and these sorts of bills and these sorts of amendments are required just to make sure the law gets it right, because it has to provide direction, first, to the public, second, to the judiciary, and, third, to the industry or business that is dealing in this sort of carry-on.

As the Minister mentioned—and it has been very topical recently; I think Iain Lees-Galloway has talked about this at great length, as has Kris Faafoi—we are faced with numerous toxic substances these days, and people will do whatever they can to alter their mind—

💬 Kris Faafoi: Ecotoxic.

That is a good word—“ecotoxic”. I think it is important that we do send a very clear message to the people of New Zealand, to the youth of New Zealand, but also to the industry that Parliament will not tolerate this sort of behaviour. We need to send the message that it will not tolerate this sort of industry, and I suppose this bill is a step in closing a lot of it down. Am I right, I ask Mr Lees-Galloway? This bill is just a first step. There is much more work to be done; of that there is no doubt. It is a shame that it was not done a little earlier, and it is a shame that the Minister did not act a little faster. That is a conversation for another day, so maybe it will be in a third reading speech—or it might have already been had.

We are supporting this bill, but I would like to thank the Minister very much for getting up and clarifying a lot of this stuff. We support this bill. As I said, it does not go far enough, but it is a start. Thank you very much.

The question was put that the amendment set out on Supplementary Order Paper 259 in the name of the Hon Peter Dunne to clause 13 be agreed to.