Misuse of Drugs (Medicinal Cannabis) Amendment Bill

Thank you, Madam Chair. This clause is about a review, and, as we heard from Dr Craig in an earlier contribution, this provision in the bill makes the National Party’s call for a time limit on an exemption from prosecution somewhat redundant. Only, it doesn’t really. In fact, it’s a completely different thing. In the amendment to this clause on Supplementary Order Paper 177, new section 35E(1)(a) talks about “The Minister must, not later than 2 years after the commencement of this section, require the Ministry of Health—(a) to commence a review of the operation of sections 7(3A), 8(6A), and 13(1A)”.

Now, those sections are the exemptions from prosecution that have already gone through this committee stage, and those exemptions are for the possession or ingestion of substances or the possession of tools that could be used in the ingestion of illicit substances. So the purpose of this terminal exemption, according to the bill as it was introduced, was simply to provide a framework so that terminally ill people wouldn’t be prosecuted between when the bill passes and the introduction of a medicinal cannabis licensing regime. It’s very clear in the general policy statement: it’s “intended as a compassionate measure until affordable quality products are available”—until affordable quality products are available—“under a proposed medicinal cannabis scheme.” Now, the Minister—and I’m not sure if it’s gone through yet—in his amendment is also making sure that that licensing regime is in place within 12 months. That’s a heroic effort, I have to say, particularly if they don’t use the very good amendments that Dr Shane Reti has produced, although I have no doubt that ministry officials will be scrambling away, squirrelling away a few ideas, so that they can meet that 12-month deadline.

Now, after that, the licensing regime then has effect given to it. So while those medicinal cannabis manufacturers will probably be doing whatever preparatory work they think is necessary to get to the start line, it is, by their advice, necessary to probably take at least another 12 months to get manufacturing processes up and running, depending on the licensing of the product itself—not just the manufacturer but the authorisation of this as a medicine, which goes through another process all together. It could take the three years that the review comprises.

But then what happens? The Minister is only bound to report back to the House, and he’s not even asked by this clause to report back to the House on what happens next in respect of that exemption from prosecution. At section 35E(4)(b), it says the review must include recommendations to the Minister on “whether any amendments to those provisions are necessary or desirable.” He doesn’t even have to inform the House—although I hope he will—about whether, in his view, the terminal exemption is still necessary.

It sends a very clear signal to me that there is no intention to repeal this exemption. So what that will do is completely undermine the licensing regime. We will have people who are terminally exempt who are getting it from their—what are they called?—green fairies up the road.

Chlöe Swarbrick: Yep.

Well, Ms Swarbrick says, “Yep, that’s right. That’s what’s going to happen.” We accept that. We would have even supported it, had it had a time frame put on it, but now we know that the licensing regime will be up and running, the manufacturing process will be concluded, and the approval process for the legitimate medicines will be in place, but it’s not the Government’s intention to get rid of what they call a temporary exemption.

My question to the Minister is simply this: why—why on earth? What possible conditions would need to be in place in order for the Government to consider that that temporary exemption, after legitimate products have been manufactured and approved for prescription and sale—why would we still need this? What possible scenario could exist at that time—in three years’ time—that would warrant the continuation of the terminal exemption? I’d be very, very interested in the answer to that question.

Thank you, Madam Chair. To continue that dialogue, the report on the terminal exception—which is what this clause talks to—needs to address a number of things. Again, you can’t list everything that should appear in a report, but I think it’s quite clear there are a number of really important things that we thought might have come up as being worthy of discussion in two years’ time, and I’ll come back to that two years’ time in the top part in a moment.

But, first of all, understand that the terminal exception and statutory defence is an incredible liberty on some of the judicial processes. For example, we know that under the terminal exception and the statutory defence, procurement of loose-leaf cannabis will be illegal but possession will be legal. Wow! I mean, is that entrapment if you encourage someone? Someone has to commit a crime for you to get what you want. Is that entrapment? That must be getting awful close, surely. I think it’s another discussion to have, and maybe the report could talk to that.

I think of how well the police are able to monitor and manage the terminal exception. We had some advice from them in the Health Committee that this was going to be a challenge. In fact, what they said to us was, “We hope that we can call up GPs who will go to their database and tell us, yes, this person sits under the terminal exception or not.” Wow! Think about that work flow. How does that happen? On weekends, are you going to find the GP? Does everyone have access to all of the information all of the time? What makes you think that there’s going to be a field on a GP database? Oh, but wait, you’ve spoken with GPs—no, you haven’t. We know that answer. Oh, but wait, you’ve spoken with software developers—no, you haven’t. We know that answer. There was just, again, another sparsity of detail around what that would look like, and I think the review on the terminal exception—which is what this clause is talking to—could well talk to those things.

Now, the terminal exception is a temporary scheme—we all agree that—and this comes down to temporality. How temporary? Not even a discussion of the broader issues of when—and the report could talk to this also—the temporary scheme finishes and a full-blown medicinal cannabis scheme starts, and my colleague the Hon Michael Woodhouse identified that in an earlier clause. What happens if, under the terminal exception at the end of that period—this is the discussion we want to have; when that period is—you’re OK and you’re able to possess, but when the medicinal cannabis scheme comes in the next day, you’re not? How is that transition going to work? No discussion—I think a report could talk about that. If in two years’ time, which is in the top part here as “not later than 2 years” in new section 35E(1), they are ready to conclude the terminal exception—this may be the guidance here that, actually, it’s envisaged in two years’ time. I’m drawing some indirect conclusions, but that’s possible. It would have been nicer to have just said it, if it was.

Now look, if it couldn’t be said and put in the legislation, our Supplementary Order Paper (SOP) 179 does that. The 30 months that we’re proposing is, clearly, another six months past the two years written into this bill. So you could have a review and report in two years, draw your conclusions, and then terminate it six months later—OK? Again, how we got to that 30 months in SOP 179 was 12 months for the enabling legislation, 12 months from seed to sale—because the industry has told us that, roughly, it will take them 12 months to start cultivating, processing, and manufacturing, and then getting out into the retail environment. That’s presuming there’s a good approval mechanism through Medsafe for that to happen—unclear, and that’s exactly why we’re saying that should have more clarity. But, anyway, when you’ve done that, you’ve got to your two-year period, and then we think there’s another six months where you get slippage and some delays that are unaccountable. So our SOP 179 is totally consistent with this clause and the desire to have the report in two years’ time.

I’ve identified some of the issues that I think the report most certainly should address such as the ongoing illegal procurement of loose-leaf cannabis, but the legal possession should be addressed.

The police interface—how well have they managed that? Let’s see if in two years’ time, as we were told in select committee, GPs have a database the police can go into when they pull someone over and say, “Yes, this person meets the terminal exception.” That’s really hard. That talks to work flow. I’ve already indicated that that sort of work flow actually takes a lot of time and has a lot of unintended consequences. I would be pleased, but I’m doubtful, that that sort of work flow could be implemented in two years’ time. I’ve tried to do something similar overseas, and it’s a lot harder than it might be just to write this into the bill.

So I think, as this clause talks about review and report, we’ve put forward a solution. We’ve put forward something totally consistent with this clause, and we’d ask the Minister to consider that.

Thank you very much, Madam Chair. I’m talking to this clause 8. Really, this clause highlights the misleading nature of this bill because it focuses on reviewing the exception and defence provisions, but it doesn’t even reference the far more extensive and the far more important medicinal cannabis regime. Of course, that regime is the result of the 29 words in the original bill that opens the door for this provision to be established.

As we’ve heard, clause 8 requires the Minister to instruct the Ministry of Health to review the exemption and defence provisions—that’s the new subsections (2A) and (3A) in section 7—and they must be reviewed within two years, only once, and I assume that that “only once” recognises the temporary nature of the exemption in the bill. Although we’ve discussed that with the Minister—we’ve discussed the importance of understanding the length of this temporary measure—the Minister is not prepared to include a sunset clause. So here we have a provision to review a temporary measure that only affects a very small number of people, whereas there’s absolutely no provision to review the substantive part of this bill, which is the medicinal cannabis scheme, which is a significant, important, and long-term change to our community.

The legislation required to deliver an effective, safe, and community-supported medicinal cannabis scheme is far more complex, far more detailed, and far more important than this exemption. What’s more, the medicinal cannabis scheme will affect thousands—perhaps even hundreds of thousands—of New Zealanders and maybe even people beyond our shores.

Now, the issues that Dr Shane Reti has identified in the bill and the legislation that he has worked on illustrate the complexity and the need for review of this particular part of clause 8. For example, his legislation—his bill—covers things like application for licences, granting a licence, eligibility for the licences, who should be able to have a licence—individuals, corporate bodies—and who’s responsible for them, the safety of the location, conditions and restrictions of licences, the standard conditions, control, and staff, how you can undertake things in a specified location, storage, and the requirement to work with the Director-General of Health. It also talks about reporting on that work and it also talks about—

CHAIRPERSON (Hon Anne Tolley): Come to the debate.

—offences. But I’m coming back—and the reason that I’m telling you all this is to emphasise the fact that this is significant, complex legislation, and yet there’s no opportunity to review it. We’re reviewing this tiny little bit, which is the exemption.

So it’s really all about priorities, and I believe that Parliament needs to be very aware of how we use our resources. We shouldn’t be making work. We shouldn’t be requiring our Minister and our departments to do things that won’t make any difference, and this amendment won’t make any difference. I think we need to be responsible also for things that are important to the people in our community. We need to carefully consider and we need to closely monitor and review significant legislation that is going to change the way that our society works, and in this case, that is the medicinal cannabis scheme.

So I don’t support the reviewing of the temporary exemption, but I do support a much more parliamentary supervision over the medical cannabis scheme and over how it’s developed and how it will work to make sure that it does deliver those high-quality products that we expect at a reasonable price, so that we can keep our communities safe. This clause fails on both counts.

Thank you, Madam Chair, for the opportunity to talk to clause 8 of the Misuse of Drugs (Medicinal Cannabis) Amendment Bill. I’ve got a number of points that I’d like to make in relation to new section 35E, which is proposed to be inserted by clause 8, and, essentially, the first point I’d like to make is that this is an inserted clause which really has no teeth and really does nothing. It says that “(1) The Minister must, not later than 2 years after the commencement of this section, require the Ministry of Health—(a) to commence a review of the operation of sections 7(2A) and (3A) since the commencement of those subsections; and (b) to prepare a report on the review for the Minister.”

Essentially, this is just another working group. It’s another working group. It’s going to have a look at the operation of the sections relating to the possession of cannabis by those with a terminal illness and—as has been outlined I think quite clearly already in relation to this—this is something which would, if it remained in place, undermine the effectiveness of a medicinal cannabis scheme by essentially allowing for the continued consumption of loose-leaf cannabis by those with terminal illnesses when there are available products in place already. So, essentially, the first point is it’s a working group. The second point is it’s not really going to actually do anything.

All that’s required, then, is for this review to be completed within 12 months—12 months. It’s got 12 months to work out whether to, basically, review those two sections and to see how they’ve been operating, and it’s only to comment on whether any amendments to those provisions are necessary or desirable and how it has been implemented. So, essentially, what we’ve got here is we’ve got two sections which allow for those with terminal illness to not be able to be criminalised—a defence is to be put in place—and then that will be reviewed no later than two years after it. That review could take up to one whole year for that to take place—one whole year—and then that review gets presented to the House of Representatives. It gets tabled here in Parliament, and all it will do is make some comments. It won’t have any teeth. It won’t do anything. All it will do is provide a document which will say that this section has been working and doing this, and whether any amendments may be necessary or desirable.

On this side of the House, what we see here are two sections which essentially allow people to use loose-leaf cannabis, and no ability and no power put into this legislation to actually say, “We will allow that to happen until such time as there are proper medicinal cannabis products in place.” You’re going to end up with companies looking at New Zealand and saying, “Where’s the certainty that I’m going to actually be able to provide these products and that those people that I can provide them legally to are not actually going to be undermined, and have my market completely undermined by green fairies and other people who decide to provide just loose-leaf cannabis to those people?” They’re essentially going to look at New Zealand and say, “Well, there’s no certainty for my investment. There’s no certainty around whether I will have a proper market going forward.” Essentially, they’ll decide, “Well, I won’t go to New Zealand; I’ll invest elsewhere and look at research and growing and providing medicinal cannabis products elsewhere.”

This Government and I think the Minister in the chair needs to articulate whether he believes that this section will just essentially allow for those provisions and that defence to be kept in place for a much longer period of time. Does the Government have some intent actually to review the operation of section 7(2)(a) and (3)(a) and whether they should actually be withdrawn, and, if so, why isn’t that put in place with a sunset clause or something else to actually say that after a number of years, those sections will no longer be available because we will have a properly certifiable, Medsafe-approved medicinal cannabis regime put in place, which provides proper medicine to those patients who request and who require it, so that they can actually access the medicinal cannabis products. That, on our side of the House, is what we believe is required in New Zealand and what we are arguing for through further passage of this legislation.

Tēnā koe, Madam Chair. Thank you for the opportunity to speak to clause 8. It’s really interesting, the focus on a sunset clause by the last contributor, Simeon Brown, because, in fact, this was the alternative to the committee’s deliberation on a sunset clause. I’d like to acknowledge the Hon Michael Woodhouse, a member of our committee, who particularly pushed for that. If anyone read our Health Committee report, we did actually contemplate a five-year sunset clause to reflect the provisions that, under this particular clause, the Minister will review, in acknowledgment that the exemption for those who require palliation was, in fact, an interim measure and it was a compassionate measure.

The committee, obviously, discussed the issue, but what the Minister and the officials have decided is that a better way to assess whether or not the particular clauses around exemption for those who have palliation are necessary should be via the mechanism that is before us. Hopefully, the Minister will be able to articulate why it was better for this process to be conducted, as opposed to the bill having a sunset clause in it.

I personally think that an assessment and analysis of those who actually have benefited from the exemption would be incredibly valuable. It would be valuable to know whether or not the police did engage with people receiving palliation, and whether or not those individuals had certificates from their doctors before it was required, or whether or not, in fact, as part of the process—and this was another debatable point within the select committee: should people who require access to medicinal cannabis and the exemption because of their terminally ill status and because they are receiving palliative care have to get that certificate in anticipation that the police may engage with them and charge them, or, actually, should it be a response to the police actually finding that they were using cannabis for medicinal purposes and therefore asking their clinician to verify, essentially, that they have a terminal illness and qualify under this particular section in the Act for the exemption?

There may be debates about whether or not the sunset clause was the better option—we certainly debated it in the select committee—but it’s pretty obvious, from my perspective, that the Minister and the ministry decided that it was an important part of the process for the Minister to, not more than two years after the commencement of this piece of legislation, undertake a review, and then, within 12 months of that review, report in to the House. I actually think that some of the transparency that the Opposition has been calling for in terms of this piece of legislation—once it is enacted, it should give them reassurance, hopefully, about why the exemption was needed in the first place.

As I said before, hopefully the Minister may be able to add a bit more in terms of whether or not reports such as these are standard, because I don’t know how often they have been used in the past. Are they for transparency reasons? What is the benefit of the Minister, in a situation like this, going through a process and then actually reporting it back, given that this whole bill has been, from my perspective, about creating a regime that does, to a degree, enable a sector of society to contravene laws that other members of society can’t, because they are facing a situation where they have a terminal illness. We know medicinal cannabis is of benefit to them, so we want to be able to see how robust this process has been, including that particular clause.

I’m happy to respond to the member Louisa Wall’s request for further comment on the review process outlined in the bill. I note that the sunset clause debate has occurred in clauses 1, 2, and 4. Certainly, in my notes we’ve discussed this several times, but not every member will have been following the debate right through, and this is the substantive issue for this part of the bill, so it’s absolutely entirely appropriate, and I’m quite happy to repeat the comments I’ve made before about this.

The idea around having a review and making the Minister responsible is that the Minister is, of course, responsible to this House for his or her actions, so the Minister can be held accountable through the House for that. It seems to me incredibly important that we have experts interacting with those who have been interacting with the bill who are able to assess the maturity of the supply scheme. The issues around price and availability that sparked the need for a supply scheme, the exemptions around illicit cannabis and how they are happening in real life, and, certainly, whether there’s anything around cannabidiol or alternate seeds that were already in New Zealand—all of those things, of course, can be reviewed by the Minister and looked at by the Minister.

It’s true that most licensing regimes are administered by officials. They seek expert advice and report to Ministers in many different portfolios on the practical implications of current practice, because if things are set up in regulation, it’s easier to quickly move if there’s a change in circumstance, such as new studies that reveal some products are dangerous or interact with others and that changes need to be made. Those can then be made promptly in a process that’s set down in regulation or in respect of a review, rather than bringing it back to the House and having to pass new legislation. So I think that point is made.

In terms of the sunset clause for use of illicit cannabis by those who are in palliation, in the final stages of life, or in life-ending conditions, I note that they will have the opportunity in the review to present their case, and we will have the opportunity to review the maturity of the supply at that stage.

Having a strict sunset cut-off may mean that if there are reasons for continuing with that regime, we would need to bring it back to the House and have another debate about it, where the matter could be much more simply and effectively dealt with straight away through a review. I think that has been canvassed, but it was worth canvassing again because it is an important part of this particular clause.

I thank the Minister for his contribution, but I’m not sure if I’m confused or if he is, because when he talked about the review, he used a scenario of the potential for products that might be harmful, or some other thing. But this review process is actually on the terminal exemption from prosecution for illicit substances. It won’t, in my understanding, have anything to do with the medicinal cannabis regime that’s being put in place by this bill. So, certainly, it did seem a little bit odd.

I want to acknowledge Louisa Wall for her chairing of not only this bill but the Health Committee generally, which is a collegial place. We weren’t able to agree that this bill should proceed, but that doesn’t mean that we didn’t have a very good discussion—including the one that the chair described in her last intervention—about the sunset clause. Was it five years ago that we first started talking about this? We weren’t able to get to that because there were other conditions for the progress of the bill. But she did use the words that this was to be “an interim measure” and that it was to be “a compassionate measure”, and I agree with that—particularly the “interim” bit. But she also referred to the response from police should somebody, even after the regime has been put in place, if it becomes unlawful again—whether or not it would be appropriate in the circumstances to prosecute.

But that’s only part of the conversation the select committee had, because we actually looked at the question of whether or not this terminal exemption was even necessary in the establishment of a medicinal cannabis regime because we now know the police aren’t doing that. If anybody can come up with one example of a person who meets the definition of palliation—it’s not 12 months any more, but it’s a terminal illness with death imminent—where police have successfully prosecuted that person for the simple act of smoking a joint, I will march beside them in protest at that action. But we knew it wasn’t happening—Mr Chambers came and told us that it wasn’t happening. So we are debating the question of whether there should be a review, but there’s an equal argument for whether we even need the provision.

On the matter of the cut-off and the five years, we would have been happy—in fact, we were discussing whether or not five years was too long or too short. Dr Reti has put in an amendment—defeated, I think—for 30 months and one day. We could have framed it to say let that exemption lapse on an event or on a milestone. It is possible to say “On the day after the first products become available on the market”, so that people don’t have to rely on illicit substances. We haven’t done that, either. I do accept the point the Minister made that a strict cut-off may well be problematic for that purpose, but that doesn’t stop us from negotiating a better description and clearer articulation of the policy intent, which is that this be temporary.

So I’ll ask the Minister again the question that I asked at the start, because he, in his last intervention, said there could be good reasons for continuing the terminal exemption regime. I’d just like to hear one of them.

The member suggested that one of us might be confused. I am happy to say that I’m pretty clear on this. The palliation exemption—or the terminal exemption, as he refers to it—is a compassionate response to a shortage of supply. We know of affordable, quality products. We want to allow for the development of sufficient products of sufficient quality to address the relevant palliation circumstances and allow for the possibility that some of those palliation circumstances may not yet have sufficient quality or supply ready to address them, and that exemption may indeed need to continue. I would hope that it wouldn’t; it’s a compassionate response in the interim until the supply scheme is fully functional.

Thank you, Mr Chair. I just want to make some comments in relation to the dialogue which is taking place around this review, and just ask some further questions in relation to what the Minister of Health, who has just sat down, has said in relation to the compassionate approach and the desire to focus on quality supply issues. I would like to ask the Minister: if the purpose of the section is to ensure that there is a focus on quality of products and supply and, I guess, the price of products in the market, why is this review not focused around those terms? The terms of this review seem to be on whether these amendments are necessary or desirable. It doesn’t say anything about whether there has become enough supply or whether there have become enough quality, affordable products in the market to ensure that that exception is no longer required.

Basically, what it says here is just “whether any amendments to those provisions are necessary or desirable.” So I’d like to ask the Minister why the language is not clear in this section—saying “Let’s focus on reviewing these sections until there is enough supply, until there is enough quality, affordable products.”—and why don’t we do that on a two-year, rolling basis to ensure that that actually takes place? If the purpose of this legislation is to drive the market towards producing quality, affordable medicinal cannabis products, just having one review in two years’ time is not going to cut it—just having the one review, which is not even going to be at the point in time when, as Dr Shane Reti has very clearly outlined to the committee, the market has been able to establish manufacturers and distributors, has had time to be able to put in place regimes, where the doctors and the pharmaceutical industry are equipped to be able to distribute these products. Two years is not going to be enough time, let alone for the regulations to be put in place and debated and consulted on and discussed.

So my question to the Minister is whether he would accept, I guess, a Supplementary Order Paper which would look at amending it to something along the lines of “Every two years, this must be reviewed.”, and I would also suggest that the review period should be reduced quite substantially from taking a whole year. I’d like to know why the Minister believes that a review should take a whole year in relation to whether these two sections should be in place, and why the review would take that much time. I understand it’s a complex and important issue, but I very much question the need for that review to take a whole year for it to then come back to the Minister and then to be reported to the House.

So those questions, I think, really do go to the crux of what is actually intended with this bill. Are we intending, as a Parliament, to put in place quality, affordable medicinal cannabis products which will be provided and also given to patients who qualify for them, who require them, where doctors and pharmacists and nurses are able to be part of a conversation and able to prescribe products to assist in pain relief or other measures, or are we actually putting in place a twofold regime where, yes, we will have those products, but alongside that we’re essentially decriminalising cannabis and loose leaf at the same time? If that’s the purpose, let’s be honest about it and let’s just have a conversation. I know the Government’s going to have a conversation about that in a referendum, but let’s have those conversations openly and honestly and with some transparency.

So I urge the Minister to consider my recommendation to have the review on a regular basis—not just once, but every two years—because that would at least provide some more assurance to this House the intent of the Minister, which he’s just said is to ensure there’s a quality, affordable medicinal cannabis medicine process and market products available to the community. That would give some more assurance to his words, because at the moment this legislation, essentially, will leave two pathways—two markets of products—available in New Zealand. Thank you, Mr Chair.

I’ll just respond immediately to the member Simeon Brown’s questions. He refers to new section 35E(4)(b), in clause 8—“whether any amendments to those provisions are necessary or desirable.”—and constructs the argument: why would you have those few words when you could have many more? My view is that simple, clear legal drafting is preferable.

To his second question about why a review should take a year, if he reads closely, in subsection (2), it says “within 12 months” it must be completed. I would contend that it’s useful to have that flexibility to ensure that consultation during that review process is thorough, that the appropriate experts are consulted, and that the review is completed properly.

The question was put that the amendment set out on Supplementary Order Paper 179 in the name of Dr Shane Reti to the proposed amendment set out on Supplementary Order Paper 177 in the name of the Hon Dr David Clark to clause 8 be agreed to.