Misuse of Drugs (Medicinal Cannabis) Amendment Bill

Thank you, Madam Chair, for the opportunity to speak to the Misuse of Drugs (Medicinal Cannabis) Amendment Bill, particularly clause 2, of course, the commencement. I’d like to highlight in the first instance that, of course, as drafted currently, the Act is to come into force the day after the date on which it receives the Royal assent. In legislative terms, this is, of course, immediately, anon, forthwith, etc. So my question to the Minister will be around the time frame and, in particular, whether more time might be needed to understand the effects of this bill for those who will be affected by its provisions.

Just to reflect briefly on the debate about whether drugs are more so a justice issue or a health issue, I think it goes without saying that at least to some extent, they are both. That really leads into the first of my points in relation to the fact that this is a very significant change, and, accordingly, sufficient time should be taken by this House and, actually, more to the point, the entire nation to understand its effects before it will become the law of the land.

So I’d like to make five points in arguing that a greater period of time is needed, and I’d certainly look forward to the Minister’s comment, if he’s prepared to provide that, on those points. The first is the significance of the change, and I’ll go through these each in a bit more detail; the second being the complexity of the issues at stake from the perspective of the health issues that we will be considering in this legislation; the third is the nature of the prohibition; the fourth is the potential for uncertainty in terms of the way that the definitions of the bill are put together; and the fifth and final, the legislative history, and an argument that I’ll get to regarding the fact that there has been a lot of back and forth, if I can put it like that, in terms of the way that this piece of legislation has reached us in this committee tonight.

So the first of those five points is the significance of the change. I think it’s probably well accepted on all sides of this Chamber and, indeed, on all sides of the debate that it is a very serious topic and there has been considerable public interest in it for some time. That in itself, I would argue, is a reason for allowing the issue to reside in the public consciousness in terms of understanding the change that will be made, and it seems that the change will be made by passage of this legislation before, as I say, it has time to be effective, and therefore begin to impact on the legal and other rights of New Zealanders.

My second point goes to the complexity of the health issues involved, and it’s no trivial matter, of course, to understand, for example, what it means to have a “CBD product”. The particular definition relates to another clause in the bill, so of course I won’t go into that as a matter of substance, but just to note that there are complex issues that are thrashed out in this bill, and more than one day following the Royal assent, I think, would be appropriate for New Zealanders to be able to get a good handle on that.

The third is the nature of the prohibition. So I refer to the fact that the mechanism is, effectively, immunity from prosecution as opposed to some other kind of exemption or some other carve-out in the law. I think that even tonight, the debate that we’ve had in this committee, even in these early stages, reflects the fact that that’s a matter of some complexity for which understanding and therefore time to understand would be helpful.

My fourth point relates to uncertainty, or at least, as I say, the potential for uncertainty. That goes to issues of definition, where we talk later about, for example—and, again, I won’t dwell on it at this stage—a pipe or another utensil, and then in brackets we’ve got the fact that that’s not a needle or syringe by definition. So it’s just the ability for people, whether health professionals, those in need from a health perspective, or others who might contemplate their rights under this bill to get their head around what these definitions are and what that means in terms of what they’re able to do. So that’s my argument as to timing, as far as uncertainty is concerned.

Fifth and final is the legislative history. We’ve had a member’s bill in the name of Chlöe Swarbrick, who, of course, is contributing to the current debate. We’ve now got this bill presented on behalf of the Government by the health Minister. We’ve got another member’s bill that’s being proposed by Dr Shane Reti—not currently on the Table, of course—and various Supplementary Order Papers in relation to this. So, again, a lot of things for people to consider and understand, and more time, I think, is needed, therefore.

It’s a pleasure this evening to speak on a bill that I’m just becoming familiar with, the Misuse of Drugs (Medicinal Cannabis) Amendment Bill. I’ve been following this bill quite closely from aside—my colleague Shane Reti has been working diligently on this bill—and it’s my pleasure to talk to clause 2. Just to echo the sentiment that my colleague Chris Penk raised, I do feel that the commencement date, which is the date that it comes into force, which is, essentially, the date after it receives its Royal assent—I think that it’s too early, and I’ll outline for you the reasons why I think it’s too early.

The first is around the impacts on this market. So we will, essentially, be allowing the use of medicinal cannabis, including loose leaf, for medicinal purposes, and that will create a bit of an increase in market demand. So my sense is that the market will need time to respond to that, and so we’re going to need a little bit more time for the market to understand and get those ramifications.

The second thing, which I think my colleague touched on a little bit, but I’ll expand on a little bit more, is around the consumer side. There are some serious health risks in this bill, and we do need to ensure that the public is given a chance to have a sufficient awareness around the—

💬 Hon Stuart Nash: What, it might kill you a week earlier?

—yes, thank you, Stuart Nash—health risks of medicinal cannabis, and that’s also going to take time for an education campaign, essentially, to roll out in this bill. That means that the Government will require a little bit of money for this, and I don’t think the Government has actually budgeted any money for marketing, for preparing the public for such a bill. So that leads me to the conclusion that we need a little bit more time—somewhere around the next Budget date, where the Government would have, essentially, been able to put in the Budget some money for marketing for health awareness both from consumers but also from the market perspective as well.

Just to reiterate what my colleague said around the justice system, there are some significant implications of this bill for the justice system, and they are going to need time to take into account the changes and the potential changes from this bill. So that leads me to this fantastic Supplementary Order Paper (SOP) in the name of my colleague Dr Shane Reti, which is SOP 178. He’s got a fantastic proposal in this—

Chlöe Swarbrick: It’s not about the commencement clause.

It is. In fact, if I just go to SOP 178, there’s a fantastic recommendation by Shane to replace clause 2—

CHAIRPERSON (Poto Williams): Order! Order! Full names, please.

Which is clause 2—

CHAIRPERSON (Poto Williams): No—the member. When you’re referring to another member—

Shane Reti.

CHAIRPERSON (Poto Williams): Thank you. We’ve gotten a little slack, I have to say. I know we’re heading into Christmas, but we should honour the members with their full names and titles as appropriate. Thank you.

I totally agree. Thank you, Madam Chair. So Dr Shane Reti has proposed, in his SOP 178, that we shift the date that this bill comes into force to six months after the date which the Act receives its Royal assent. I think that this would be an appropriate time for the bill to come into force, given the issues that I’ve outlined in terms of the constraints on our Budget, given the awareness and the health issues that we have raised today, and given the justice issues that my colleague Chris Penk has raised. I think the six-months thing would mean that that would take us, essentially, to next year’s Budget.

So I would urge the Minister and I would encourage the Minister to respond to the proposal by Dr Shane Reti to shift the date into force six months after its Royal assent. So that is fantastic. Of course, we oppose this bill. It would have been great to have other—and I’m looking forward to debate on that matter.

Madam Chair, thank you. Just to respond to a couple of points. I suspect the Opposition members may be a little confused about how this will roll out, so I’m happy to clarify for the committee.

There was a suggestion that the bill should come into force a little later to allow members to get their heads around it in light of public interest—that was made by a member—and to reflect on whether drugs are a health issue or a criminal justice issue. I would reflect back to the committee, firstly, that there has been a thorough select committee process where members of the public have interacted, and I think we underestimate members of the public at our peril in terms of their engagement with this issue and with this bill.

But where I think the members may have become a little confused is that they are talking already about a Supplementary Order Paper (SOP) relating to another part of the bill, but saying that the regulations coming into effect six months later would be a good thing to allow further time for people to reflect and for this to occur. In fact, as the bill is currently drafted, with my SOP, it would be one year after, which would indeed allow people more time and also would allow for consultation on regulations more fully.

So the members seem a little confused. They’re asking for more time and then proposing a time frame which is actually likely to be less time than the regulations come into effect. Thank you, Madam Chair.

Thank you, Madam Chair. Fascinating insight on the select committee process by the Minister David Clark, who said there were fantastic submissions to the select committee—only, the Government didn’t listen. The Government paid no mind whatsoever to the very good suggestions that those submitters made. Now, not all of them we agreed with. There were a number of submissions on quite strong liberalising of the terminal exemption, for example, which comes into effect, according to clause 2, the day after this gets Royal assent. I think that’s relevant in terms of the context of how we blend this changed law into our judicial system, but I think it’s quite inappropriate of the Minister to acknowledge the submissions that he himself didn’t listen to.

Now, in respect of the licensing regime, the commencement date is less of an issue, because it’s going to take some time to get a licensing regime up and running. Now, we know how long it’s going to take, because by the Government Supplementary Order Paper (SOP), it’s going to take no longer than 12 months. Now, I don’t know what’s going to happen on day 366 if, indeed, the ministry and Medsafe don’t get the licensing regime. Is there a sanctions regime? Is there a punishment for the Government officials for not meeting the arbitrary time frame that the Government has put in place? I actually think it’s a good idea, but, indeed, it’s probably less of an issue than it is to do with the terminal exemption, because if the terminal exemption comes in on the day after this bill is enacted, then we have an issue with the justice system and with the law enforcement process, and I would be fascinated to understand from the Government and the Minister how indeed this is going to work.

What we have is—despite what Chlöe Swarbrick said in her last intervention—a regime where a class C substance is presently illegal. The day after this receives Royal assent, it will also be illegal. Regardless of whether the person might be immune from prosecution, the act is still illegal. On the day before the bill gets Royal assent, somebody could be liable for arrest and prosecution. What’s not clear to me is what happens if somebody who has been arrested and is in the judicial system facing an offence under the Misuse of Drugs Act—what happens to them on the day after this bill gains Royal assent? Are they immune? Are they nevertheless going to have their prosecutions carried out? Are they in limbo? We need to actually understand. It’s not a straw-person argument; it’s very real.

There are hundreds, if not thousands, of prosecutions under this part of the Misuse of Drugs Act, and it could be—in fact, it’s quite plausible—that somebody who was suffering or believes themselves to be suffering a terminal illness that may result in their imminent demise could have been arrested and charged with offences under the Misuse of Drugs Act. Now, I hope they aren’t prosecuted. I hope they still have an opportunity to become immune, but what’s not clear to me is whether there is some kind of ability for the justice system to stop and say, “You were arrested the day before this bill came into effect.” Therefore, what? Is one still liable on the day after it comes into effect? Should there be a period after the bill gains Royal assent for it not to become effective, or should it be retrospective? One very plausible possibility is, actually, that it clears previous charges that have been laid but the prosecution has not been complete, so that those people who are in the justice pipeline don’t need to come out of it. They themselves can also be immune, even though their arrests and charges had taken place prior to this bill gaining Royal assent.

So I am interested in how we’re going to transition this. There are usually transitional provisions in a bill, particularly a Crimes Act bill or a Misuse of Drugs Act bill. There is no reference to that in this bill, so if the Minister could explain what will happen to anybody who is in the justice pipeline on the day after this bill gains Royal assent, I would be very grateful.

I move, That the question be now put.

Thank you very much, Madam Chair. I’d just like to speak to clause 2 of this Misuse of Drugs (Medicinal Cannabis) Amendment Bill, because I’m really interested in this commencement date. What it says is that it comes into force the day after the date that it receives Royal assent, but, actually, I think this commencement date is misleading because of the three purposes of the bill.

This commencement date is only relevant to one of them. It’s relevant to the statutory defence provided to those very sick people—in fact, those who are terminally ill—if they possess or use cannabis. Actually, just thinking about that, I’m not so sure how often this exemption is going to be used, because we talked to the police when they came to the Health Committee, and they said they are very sensitive to this issue. They said that they understand that people who are very sick or terminally ill may want to take the relief of cannabis, and that they were very unlikely to prosecute any of these people—although I do understand that it may lift the responsibility of somebody who’s ill to use cannabis.

But the second purpose of this bill is to amend the bill so that cannabidiol (CBD) is no longer classified as a controlled drug. The commencement date says that that will happen after Royal assent, but, of course, the National Party has already done that. We did that in the past Government by regulation. So this is really more a belts and braces amendment. It’s to do with the Act but, in actual fact, it will make very little difference.

The last purpose—the third purpose—of the bill is to open the door to developing a medicinal cannabis scheme, but it only opens the door. There’s absolutely no detail about what this cannabis scheme would look like, how we would manage the quality of the drugs, how we would grow them properly, how we would manufacture them, how we would process them, how they would be dispensed, and how we would actually manage that scheme. So the commencement date can’t possibly be relevant to a scheme that’s not even described. As we know, as the Minister has said, it will be at least another 12 months to develop that sort of legislation. So, again, this commencement date is totally irrelevant.

So when we look at the commencement date, I’d just like to make it very clear that there’s only a third of the bill, only the exemption for people to use it who are terminally ill—the fact that they have got that statutory defence—that this commencement date will affect. It will not affect the definition of CBD and it will not affect the setting up of a medicinal cannabis scheme. Thank you.

I move, That the question be now put.

Thank you, Madam Chair. To speak to the commencement clause is to speak to the timing of the bill—clearly, the start of when the bill comes into effect—and you’ve heard from my colleague the Hon Michael Woodhouse the concerns we have about the transitions at the boundary of that, but the commencement clause is that sort of start to the timings of the bill.

As has already been alluded to in other clauses, while we’re talking about the start of the bill, we also want to talk about some of the parts of the bill that we want to conclude through Supplementary Order Paper (SOP) 179, the sunset clause. The reason we’d want to do that while we’re discussing timings under this clause is because the terminal exception and statutory defence were always viewed as temporary. The Minister said it was temporary. We all get that. Even here today, it’s a temporary scheme. Well, if it’s temporary, it should have an endpoint. That should be part of the timings that come into this clause.

Furthermore, the Health Committee did do a lot of good work in this area, and, yes, we reached a hurdle and we all then went our separate ways at the end, but I defy any members of the select committee who are here today who do not agree that the select committee got to a point where we all agreed on a sunset clause. We all agreed. We got to that point just before we decided that, no, we couldn’t get over the ending, where we all said, “You know, a sunset clause makes sense.” I’m sure the chair of the select committee will be able to reaffirm that we were all in agreement—everyone, unanimously across the select committee—for a sunset clause.

So while we’re in the timings part of the bill, in clause 2, I want to throw some light on our SOP 179 and how we come to execute this sunset clause, which repeals the statutory defence and terminal exception. Simply, it’s like this: the bill has 12 months to be enabled—that’s 12. In the detailed discussions we’ve had with all of the major industry players, they tell us they can be from seed to sale in another 12 months—that’s 24 months. Then there’s always some delay when you’re implementing something like this, and we thought maybe about six months. We know that other jurisdictions can do it a lot quicker, but we thought 30 months would sort of encapsulate everyone and would be a reasonable time frame for a sunset clause for what everyone agrees is a temporary scheme. I’m not hearing anyone—unless there’s something different that the Minister wants to tell us about it and we’d seek his affirmation of this: that he envisages it’s a temporary scheme as well. If it’s temporary, how temporary? While we’re in the timings part of the bill, how temporary is the scheme? Put a number on it so that everyone can see and understand, because we need to understand that we’re dealing with significant liberties here, and a significant start to cannabis reform with this terminal exception. So it’s totally reasonable, for a temporary scheme that everyone agrees to be temporary—“How temporary?” is the question.

We’ve defined that. That’s the logic of how we get to this temporariness, if you like, and why it’s 30 months, and we’ve put it up as SOP 179. So we’d like some clarity from the Minister. Does he have an understanding? Does he have an agreement? The whole select committee got to an agreement on a sunset clause. Does he also agree that the terminal exception and statutory defence are temporary? And, thirdly, if it is temporary, how temporary? Is our 30 months a good starting place, in the logic we’ve given for it? If not, can he come up with another answer and another solution?

I just want to reflect on the three speakers that have spoken and just address their issues. Shane Reti, obviously, spoke about a sunset clause; not about the commencement, so I’ll deal with that when we come to the appropriate clause in the bill.

The Hon Nicky Wagner made the point that the statutory defence only applies to illicit cannabis, by her definition, and noted that the police use discretion. I think that speaks to the prior speaker’s comments, Mr Woodhouse, who raised the issue of what would happen—and it’s the only substantive issue that I’ve seen raised in this commencement debate so far—if somebody was arrested and then the law changed the next day. The way the law stands is that members of the public are subject to the law at the time of offence. It’s a fairly straightforward matter.

I move, That the question be now put.