Psychoactive Substances Bill

Part 3 of the Psychoactive Substances Bill does lots of things, actually. It is probably the most substantial part of the bill. I want to focus on just a couple of aspects of it, and I have no doubt that my colleagues will want to traverse some of the other matters contained in Part 3. Part 3 has clause 50, and clause 50, I think, out amongst the public, is probably one of the most important clauses in the bill. It is the clause that prohibits and restricts where these substances can actually be sold from. Again, this is an example of a really progressive change that was made by the Health Committee. The original bill certainly contained provisions for restricting the sale of substances and for regulation-making powers to determine where these legal high products could be sold from. But we really felt that to give the public the surety that the result would be what they anticipated, we needed to bring this into the primary legislation, and that is what we have done.

I am really, really pleased to be able to report to people who might be listening to this that once this bill is passed, from the moment this bill becomes law, regardless of any transition periods, which we will also discuss during Part 3, from day one it will not be legal to sell a psychoactive substance from a dairy, from a convenience store, from a supermarket, from a petrol station, or from a liquor store. It will not be legal to sell them from a non-permanent structure—i.e., flea markets, or at music festivals or what have you. It will not be legal to sell them from a vehicle. So, again, they cannot be sold from tents, or marquees, or vehicles. And, actually, if we have not managed to capture in the paragraphs of clause 50 all the places that we do not think they should be sold from, then we have got clause 50(1)(h), which is: “any other place or premises specified or described in the regulations.” So there is a catch-all paragraph there. So should we find that some clever person finds some other place that is not the type of place that we want these to be sold from, then regulations can be made to shut that down quickly.

I suppose the question then to be asked is where these products can be sold from. We have got a long list of places that they cannot be sold from. Where can they be sold from?

💬 Sue Moroney: Barbecues.

No, not barbecues, Sue Moroney. That would be a temporary location, so, no, they could not be sold at barbecues. I am sure that people can have cigars at barbecues, but they cannot purchase legal highs.

Actually, just yesterday I saw a very good example in Associate Minister of Health McClay’s own electorate of exactly the type of place that they could be sold from. I was visiting Rotorua yesterday. I met some excellent people, some good Labour supporters, in the Rotorua electorate, and one of the things I did was—

💬 Hon Dr Jonathan Coleman: Oh, you met Steve Chadwick.

No, I did not meet Stevie Chadwick, but I understand that she is a shoo-in to be the next Mayor of Rotorua. What I did was to go and visit a couple of places where I had been informed that legal highs were still for sale. I am pleased to say that neither of them was a dairy. It appears that if there were any dairies selling legal highs in Rotorua, they have all got out of that business. The places that I went to were exactly the places where I imagine these substances will be for sale in the future. There was absolutely no indication outside the store that legal highs were for sale inside. One of the stores was absolutely clear that it was R18, and it appeared to be enforcing that. I never once saw a youngster go into the store. The name of the store really did not indicate that it was a tobacconist or a retailer of legal highs. When you went in, all the tobacco was hidden, of course—because that is already a change that we have made—and the legal highs were not actually out on display. There was not any overt marketing. There were other products for sale there, but they were the kinds of products that go with the sale of tobacco and other psychoactive substances. There certainly was not any bread, there was not any milk, and there were not any lollies, and, as I said, I never once saw anybody go through the door who appeared to be under the age of 18. So there is that kind of responsible retailing that I think we want to support.

The only question mark that I would have had over that one particular store was its location. That is another change that we have made in Part 3, and that is to give local communities the ability to have a say about where those outlets can be. I imagine there might be some folks in Rotorua who would have a say about where that store was. Although, I have to say, from what I saw it was exactly the type of responsible retailing that we hope this legislation will support.

I just want to quickly talk about clause 51 as well, which relates to internet sales. I have to say that I am somewhat uncomfortable with the idea of psychoactive substances being sold on the internet, but alcohol is already able to be sold on the internet, and, actually, you can buy tobacco products over the internet as well. Actually, the advice that we got was that if we banned internet sales in New Zealand, all we would be doing would be opening up overseas-based sites that we would not have jurisdiction over, and it would be harder to regulate those overseas-based sites. So internet sales have exactly the same regulations applied to them for retail as permanent stores that you would find in towns.

The other area that I want to talk about is the question of possession. This is one that the committee considered at length, and I have to say that I think the committee came to what was still an inelegant solution but a solution that everybody around the table was comfortable with—until the Minister came back and told the National Party MPs to revise their position—and that was to say that possession of a substance for someone who is under the age of 18 is an infringement offence. That was on the advice of the police, who need it to be an offence in order for them to be able to conduct the type of early intervention measures that they want to be able to conduct. I must say, I was not entirely comfortable with it. I am not comfortable with the idea of possession being an offence. It is certainly an improvement that in this legislation possession of a substance—any substance for someone who is under 18, or a non-approved substance for someone who is over 18—is an infringement offence. It does not carry with it a criminal conviction. It is akin, really, to a speeding fine with a maximum fine of $500. That is an improvement on the possession offences for substances controlled by the Misuse of Drugs Act, but still imperfect, in my mind. I cannot see how criminalising possession actually helps to achieve the purpose, which is to reduce harm.

I propose that we go back to the position that the select committee reached, which is to accept—uncomfortably—the infringement offence for people under the age of 18 possessing any psychoactive substance, but to remove the offence for anyone over 18 being in possession of an unapproved substance, not only because I do not think that it helps reach that purpose of reducing harm but also because it is going to be absolutely impossible to enforce. The whole point is that the police should be able to give an on-the-spot fine. It is going to be impossible to give an on-the-spot fine if the police officer takes possession of the psychoactive substance, because they are not going to know whether it is an approved substance or an unapproved substance, and to test the substance to find out whether it is an approved substance or an unapproved substance is going to take several months. It is not possible for a police officer to deliver an on-the-spot fine for being in possession of an unapproved substance, because it will be a considerable amount of time before anybody knows whether it was or was not an approved substance. The rigmarole that people are going to have to go through to prove this does not, I think, relate to what we are trying to achieve here, which is just a simple, on-the-spot, early-intervention fine.

So I hope that members will support my Supplementary Order Paper, which would remove clause 63 and remove the offence of being in possession of a non-approved substance. We should be focused on the manufacturers and the suppliers. It is absolutely right for there to be heavy penalties for supplying or manufacturing an unapproved substance. That is where we should be focusing our attention. That is where we should be focusing the police resources. There is absolutely nothing to be gained from criminalising young people who are in possession of an unapproved substance.

I wish to take a very short call to say that certainly the substance of this bill, the Psychoactive Substances Bill, is very much contained in Part 3.

I could not agree more with Iain Lees-Galloway that clause 50—“Prohibitions and restrictions on place of sale of approved products”—is very comprehensive and over and above the various other places specified in subclause (1), where it says: “(h) any other place or premises specified or described in the regulations.”, so it gives tremendous leeway. But then we go to clause 61A—“Territorial authority may have local approved product policy”—and this is very relevant in Manurewa where a shop called High Zone is next to a doctor’s surgery, next to a shopping centre, and the people there are very, very concerned, but they now have the mechanism to be able to remove it from that area. I think that is very satisfactory. It is something that the Health Committee did indeed amend appropriately.

Lastly, I do take issue with Mr Iain Lees-Galloway in terms of clause 63. Undoubtedly, the police gave us a very constructive submission, and said it is very helpful for them to be able to have sanctions whether a person is over 18 or under 18. Surely there must be consistency, and I think it is right and proper that the Government has come up with this amendment.

I want to take a brief call here because I know that other members also want to speak on this Part 3 of the Psychoactive Substances Bill. I really want to say that this too is a very important part. This is what the public are probably most interested in. At least they are going to see on day one what changes this Parliament is about to make.

Firstly is that these products will not be available to people under the age of 18. I think that the evidence is probably becoming clearer on a daily basis that anybody who takes many of these products is being harmed. I do know from speaking to parents, and particularly mothers, around the country over the last few weeks, about the significant harm that seems to be caused to young people through addiction, through withdrawal, and through all sorts of other horrible things we would not wish upon any family at all. So on day one no under-18s will be able to possess these or have them sold to them, and I think that is very important.

Secondly is where people will get hold of them. So there will be very strict restrictions around availability. We have heard other members speak in the debate earlier, so there will be no more dairies and no petrol stations selling them. There is a very exhaustive list, and I think the Health Committee has done a good job here in helping define where these products cannot be sold.

Most important, also, are some rules around labelling. Any product that is approved will have to have clear information on it. Yesterday in Dannevirke a mother gave me the empty packets of a 6-week supply of this product, which her young son had been consuming. These ones I am holding are the ones she could find, and there were probably 70 packets. She told a heartbreaking story about a bright young man who was very engaged in school, a good academic student who loved sport, and whose life had changed so very quickly. He sold everything and stole everything and could not stop this. Sadly, when that mother went down to the dairy to tell the dairy owner, who did not really know he was doing anything wrong, of the harm that was being caused, there was a suggestion that the boy owed $45 and that his mum should stump up. Well, actually, quite quickly the dairy owner realised the harm when he spoke to others, and he went and apologised, and that community is now working through that as a community.

On one of the products this young man took it says: “Not for human consumption. Do not purchase if your health is impaired in any shape or form. Do not purchase if you are pregnant or breastfeeding. Keep the product out of the reach of children. Restricted to adults over the age of 18.” That is it—that is all that is on there, and that is just absolutely frightening. So we will ensure through this legislation that adequate labelling is there, with health warnings, with information about where to get help, but also with information about who is importing, about the manufacturer, and about who is distributing. That is going to help the Ministry of Health keep an eye on these products but it is also going to help the consumer.

There are also restrictions around promotion. Here is another product. I will not mention the name because these guys have had enough promotion as it is. It says on here: “For a limited time only send 10 empty” of these “packets to” such-and-such address, and a country, “with your name and return address details and we will send you 2 grams of this product for free.” Well, it is not actually free because it is doing harm, so that will not be possible either. So these are very important rules that we are putting in place.

One of the important areas that gives local communities a greater say through this part of the bill is an extra tool for local councils, should they wish, individually or collectively, to place further restrictions on availability. This is, again, certainly the Government but also the Health Committee and Parliament backing local communities to have a bigger say. I think that we will now see communities all over the country speaking up on this issue and local government—not only because it is election time for them—and mayors deciding that actually we need to do something about it and they need to do something about it. I would expect that there will be restriction orders consulted on and put in place quite widely, and that is appropriate because this is about local people.

Finally, I have a Supplementary Order Paper 277, which I introduced today, and I apologise to the Committee that it is so late. Last night I was at a public meeting in Invercargill, the electorate of the hard-working member Eric Roy. A couple of hundred people turned up and they were passionate and they were angry, but their anger was not directed at this House or the Government; it was directed at the people who had been harming their community, and it was about their desire to do something about it. They made a case that made me come back and actually question officials, and in consultation with parties in the House we have reached agreement. So what this Supplementary Order Paper says in the schedule is that where a product is currently on the market—if it is currently possible to sell it, so it is not illegal—an application for approval can be made and can be granted on a temporary basis. It says that as soon as practicable, after the date on which the regulation around the type of testing it will need comes into effect, information shall be given, or no later than 18 months after the regulation comes into force, and they must come forward and they must present their full application.

I think that is far too long for the mother whose son took these 70-odd products. So in agreement I am putting forward a Supplementary Order Paper that says that within 3 months—not 18 months—of the regulations coming into force, anybody who wants a temporary application must come forward with detailed information, some clinical information, so we can have greater certainty about what is in these products. I would hope we can apply a precautionary principle to this because this House wants, and has put on record to the importers, these dangerous products off our streets, out of our shops, and away from our young people. This amendment will give us the ability to ensure that any product that an importer or a manufacturer wants to bring to market is as safe as it can be and ensures that those importers and manufacturers take their responsibility seriously, and that they are doing the studies and the tests that our expert committee says are appropriate. Where they are not, we will have the ability to take it away. If they cannot do that within 3 months, then they are not serious about reducing harm and they do not deserve to be able to sell, to peddle, this muck to our young people. Thank you.

It is my pleasure to speak to Part 3,which is really about the controls around how approved substances can be purchased, enforcement matters, and regulation-making powers, particularly of local communities.

I just want to pick up on the point about clause 46 and contrast that with clause 63. I think we were all clear, from the evidence that the police presented to us, of the compelling reason why we, in the end, enabled them, through an offence, to engage with those under 18. It was primarily because if you are under 18 it does not matter whether or not the substance in your possession is regulated or unregulated. The reality is that if you are under 18 you should not have these substances at all. So that was the primary reason we created an offence with the maximum penalty of a fine of $500—to provide the police with the tools so that they could engage specifically with young people, and, hopefully, work with those young people, identify the young people at risk, and then provide the services to help them and assist them, given their age.

For the over-18s, the police again were very clear that it would be very difficult for them to determine the difference between an approved substance and an unapproved substance, which is why we did get consensus in our Health Committee to delete that particular section of the bill. And it is for the Government to determine. It wanted some congruency. I guess technically if you are over 18 and you have got an unregulated substance, then maybe it should be a fine. But the reality, from what the police told us, is that this is going to be very difficult to implement. It may be a law on the books, but actually, in practice, it is going to be very difficult to prosecute anybody, because of the testing regime.

I wanted to also highlight clause 47 of the bill. Our emphasis, again, is in the right place. If you sell to somebody under 18 and you provide that product to an under-18-year-old, you will be fined $5,000. If you sell that product and you belong to an organisation—so you are technically a body corporate—you will be fined $10,000. I think they are a very good signal to the community. It is a very good signal particularly to dairy owners, or anybody who is in possession of these substances, thinking that they can sell them after this legislation goes through. So we are obviously very pleased with those particular aspects in Part 3.

I now want to highlight clauses 52A and 53. For me, these are wonderful, because they also show some congruency with tobacco legislation. We will not let these substances become substances that are associated with sports, for example, because we will not allow them to sponsor different events, and there will be no advertising [Interruption]—Trevor, are you going to tell me that I have not got much time—of these products on TV, radio, or newspapers.

I do have a question for the Minister. Clause 53A of the bill is very, very specific, and it was put into this piece of legislation to absolutely deal with the issue that we have in Manurewa. On the main street, at the same place as a bus stop where young people travel to and from school, between two primary schools, we have a High Zone, or a legal highs shop. The advertising around that property is absolutely outrageous in the middle of our community. What this clause does is say that there is a “Restriction on retailer’s name using words, expressions, or trademarks etc, associated with approved products”. What I want some guarantee about, from the Minister, is that the day after this gets assent and becomes law, it becomes illegal for that shop to advertise the products in the manner that it does, and I want to make sure of that, not only for myself but also my community.

I want to acknowledge Angela Dalton, who is the chair of the Manurewa Local Board. I want to acknowledge Toa Greening, Colleen Brown, and Simeon Brown, who all made submissions. We are all trying as hard we can to help protect our community, so I particularly would like some comment about what tools are available to them to immediately ensure that this particular provision empowers them to shut down the advertising around that particular shop.

Finally, I do also want to highlight clause 61A of the bill, which is empowering our local communities to approve where our products can be sold. I mean, this is very much—

💬 Hon Judith Collins: Come on, we’ll never get through.

—Hon Judith Collins—in the same thinking as the local alcohol policies. I am here to support this bill, after being a member of this committee, and I thank you very much. Kia ora.

In relation to Part 2 of the Psychoactive Substances Bill, I spoke about the congruence we were seeking between the ways that we dealt with different sorts of psychoactive or recreational substances, and Part 3, indeed, provides much of the machinery for the regulation. It introduces the very, very important principle that the regulation is proportional to the harm, which is very important, and it covers off those bases that we have discussed in this Chamber in relation to alcohol—location of outlets, sponsorship, advertising, labelling, and so on. It stops short of introducing a tax on these products, but only for the reason that it was not, at this point, possible to determine what level such a tax should have. We want to come back to that in the very near future. This is the part of the bill that actually provides those tools that, again, we hope will lead to greater congruence.

I want to give most of my time, however, to this issue of possession. Paul Hutchison indicated that the National MPs decided to vote to support a possession charge after the evidence given by a couple of police officers to the Health Committee. There was an intriguing gap of some months between the police officers doing that and the National MPs changing their position to support such a possession charge. Indeed, I draw the Committee’s attention to the Green minority view on the bill, which makes no mention of the clause 63 issue and the possession charge, and that is because, up until that point, there was no possession charge in the bill. That was introduced at the very last moment by the Government MPs.

Mr Lees-Galloway has a Supplementary Order Paper that the Green Party will be very pleased to support, Supplementary Order Paper 267. We think that, as he has said, the existence of this charge does not contribute to the purpose of the bill. It does not, in any way, assist harm minimisation or the promotion of the health of the people who use these psychoactive substances. The existence of possession charges under the Misuse of Drugs Act has not contributed to any kind of reduction in consumption or addiction, nor any kind of increase in the use of treatment services by people who use those drugs. There is no evidence to suggest that it would be any different in relation to psychoactive substances. So that is point one.

The second point is, as Mr Lees-Galloway has pointed out, that infringement offences are intended to follow the actual infringement by an immediate penalty—an immediate minor penalty. That is pretty much never going to be possible in the case of clause 63, because at the very least the substance that person A, who is pulled over by the police, searched, and found to have a substance on them—the police will not know what that substance is. They will not know unless and until that substance is tested. When it is tested, in most cases, I think it is pretty clear that that substance will turn out to be an approved substance, because once we have a legalised supply of some psychoactive substances with low risk, actually, that is going to tend to be what most people have. In most cases, that is what will tend to be the case. So a person will have been deprived of their legally acquired and possessed substance for a period of some months before getting it returned in most cases.

There will be other cases where the person is found to be carrying a substance that is not an approved psychoactive substance, but the point that I want to make to the Committee is this: substances that are not approved psychoactive substances still actually constitute two categories of things. The first of those categories is psychoactive substances for which an application has been made for approval and has been declined. It is pretty clear in that case that we are dealing with a psychoactive substance that has not been approved, and I think everyone would say it is probably not legitimate for that substance to continue to be in someone’s possession. There is no legal way they could have acquired it.

But there will be other substances. If I have a powder or some pills and those turn out not to be of a substance that has ever been subject to an application, then, first of all, we do not know whether it is a psychoactive substance or not. What that means is that the police are suddenly in a position of needing to make an assessment of whether or not my powder or my pills are a psychoactive substance when, according to clause 9 of this bill, whether or not something is a psychoactive substance is determined, in fact, by the authority. They will not have done so. So what we arrive at is an absolute mess—an absolute mess in which the police cannot possibly make sensible decisions, and we cannot know from this bill what ought to happen to the person who possessed that or to the substance that they possessed, because, very likely, the substance they possessed was possessed entirely lawfully. So there is a really fundamental flaw with clause 63. This business, actually, of determining whether or not something is a psychoactive substance also applies to clause 46, and it is, in my view, a fatal flaw with this bill.

I want to just very briefly touch on clause 46 as well, just to highlight the point made in our minority view, which is that although, very reluctantly, we have come to support the inclusion of that clause in the bill, we do so with some fear that that clause may, in fact, be used to harass, in particular, young people from particular minority groups. That would be a most unfortunate consequence, which certainly the Green Party will be monitoring and will be looking for in the review of the bill. Thank you.

The question was put that the amendments set out on Supplementary Order Paper 277 in the name of the Hon Todd McClay to the proposed amendments set out on Supplementary Order Paper 268 in his name to Part 3 be agreed to.

Amendments to the amendments agreed to.

The question was put that the amendments set out on Supplementary Order Paper 268 as amended in the name of the Hon Todd McClay to Part 3 be agreed to.

Amendments as amended agreed to.

The question was put that the amendments set out on Supplementary Order Paper 267 in the name of Iain Lees-Galloway to Part 3 be agreed to.