Misuse of Drugs (Medicinal Cannabis) Amendment Bill

Thank you, Madam Chair. Clause 5 is now quite different in the Supplementary Order Paper (SOP) that the Minister has introduced from that which was introduced and which the select committee dealt with. Now, this is what we’ve now euphemistically called “the terminal exemption”, and it’s this that—despite the fact that the purpose of the bill is actually to create a framework for the production and supply of legitimate medicinal cannabis products, we seem to have been dominated by the question of whether or not there should be an exemption from prosecution for those who use illicit substances. Indeed, it is an amendment to the Misuse of Drugs Act, and so this is quite significant.

We have debated already in the committee of the whole House the change from the definition of “terminal illness” to that of “palliation” in clause—I think—4, so I’m not going to relitigate that. But what the amendment that the Minister has introduced does is quite a significant change in terms of the judicial process, and I would, I think, benefit, and the committee would benefit, from the Minister explaining what is a semantic but potentially quite significant change. When the bill was introduced and considered by the select committee, clause 5 at (2A) states that a person who contravenes the Misuse of Drugs Act “does not commit an offence” if they have a terminal illness. Now, not only have we changed the definition of “terminal illness” to “palliation”, as described in the previous clause, we’ve now actually deleted, by the SOP, subclauses (1), (2), and (2A) from the bill, and what we are left with is an amended subclause (3). Rather than use the terms “does not commit an offence”, subclause (3A) now says that the defendant has a defence if at the time of the possession or use the defendant has been diagnosed with a condition that requires palliation.

Now it may seem a little bit pedantic, but actually—and I’m no lawyer; I’m not good enough to be a lawyer. I’m a humble chartered accountant—just a lawmaker now. But it seems to me that there is a quite significant difference between “does not commit an offence” and “has a defence”. So I would be grateful for an understanding, and I think the committee would benefit from an understanding, of why this change was made, because it appears, on the face of it, to be quite a significant change. I’m sure there’s a reason for it—to take out subclauses (1), (2), and (2A), and simply amend (3A). “No offence” has been changed to “has a defence”. So what that suggests to me is there seems to be a tightening, not a softening, of the provision that makes it clear that even if the person is terminally ill, they are still committing an offence, but they have a defence.

Now, I might be barking up a tree, but I think this is quite significant, and in order to inform the future debate on this clause, I’d be grateful if the Minister could explain the nature of that change.

I call the Hon David Clark. Just as I do, I just remind the Government whip—I can’t find anything in Standing Orders about whistling, but I do think it is an interjection, and he was actually walking around making that interjection, and I’d ask him to cease.

To clarify and respond to the member’s question, the change is simply moving the exemption to section 8 of the Act. That offence was always there.

Thank you, Madam Chair. Well, clause 5 very clearly starts to talk to loose-leaf. We can see that it actually talks about smoking, it talks about smokes, and it then leads itself to a topic under the terminal exception and statutory defence of smoked loose-leaf. There can be no doubt that this is included in this bill. We know this for any number of reasons. First of all, written parliamentary question 489 to the Minister: “Will terminally ill cannabis users be able to possess and use cannabis leaf under the Misuse of Drugs (Medicinal Cannabis) Amendment Bill?” The Minister replied: “The Bill will not restrict the exception and defence to the possession and use of cannabis to any particular dosage form.”

Secondly, in July, the Hon Paula Bennett asked the acting Prime Minister and New Zealand First leader in the House: does he support loose-leaf cannabis being available through the Government’s medicinal cannabis bill? He declined to refute that. Her next question was the same: does he support loose-leaf cannabis being available through the Government’s medicinal cannabis bill? And again he declined. If there was any further doubt, we see, in other clauses, that we are authorising, or being asked to authorise, utensils such as pipes. So absolutely no question: the temporary terminal exception and statutory defence authorises loose-leaf cannabis.

The question we have, and I’d challenge the Minister on this, is: if a patient is started on smoked loose-leaf cannabis under the temporary terminal exception, and the exception then concludes, and the patient has had relief, will the medicinal cannabis scheme stop smoked loose-leaf cannabis? I would contend that that’s unethical. If you do a drug trial and a person benefits from the drug, you can’t stop the drug. Therefore, the contention is that smoked loose-leaf cannabis will extend into the full medicinal cannabis scheme, and the National Party cannot and will not support that.

The issues of smoked loose-leaf are quite clear: we’re concerned for quality, we’re concerned for decontaminants, we have some concerns about normalising loose-leaf in the community—the referendum will speak to that. Access and affordability have been a concern in our hands. We spoke to that across several parts of a medicinal cannabis scheme. Some would say that medicinal cannabis products have a slow dose time response curve that might be a matter of hours, say, for tablets. Correct, and smoked loose-leaf may give you that, but so will vaped solutions. In fact, if we look overseas at New York and their medicinal cannabis scheme, they forbid smoked loose-leaf; so there’s certainly international precedent for this.

I need to make it very clear, and we should have clear visibility on this, that New Zealand First is supporting loose-leaf cannabis—be in no doubt. On several grounds, New Zealand First is supporting loose-leaf cannabis. We raised this specifically with New Zealand First at 8.15 on 22 May in a formal meeting with Fletcher Tabuteau, where I formally met with him for the purpose of discussing their party’s approval of loose-leaf cannabis in the medicinal cannabis scheme. I gave him all the documents from the Health Committee that it was appropriate to give him, all the written questions that showed smoked loose-leaf was permissioned in the terminal exception and was highly likely to be permissioned in the following medicinal cannabis scheme. At the end of that meeting, Clayton Mitchell came and indicated to Fletcher that he had a following meeting next door. Be in no doubt, New Zealanders who are watching this, and the Hansard records it: New Zealand First is supporting loose-leaf cannabis both in the terminal exception and, as I’ve explained, through to the medicinal cannabis scheme.

The questions I then have for the Minister are these: again I reiterate, patients who are started on smoked loose-leaf under the terminal exception who receive relief—will the full-blown medicinal cannabis scheme stop the smoking of loose-leaf cannabis for those patients? And the second related question: can the Minister promise that a full-blown medicinal cannabis scheme—and here’s the pity of not knowing any framework or anything about that—will not have smoked loose-leaf? I think those are very important questions for New Zealanders that answer the question that member Swarbrick raised about decriminalisation or legalisation by stealth. This is a clear example of that legalisation of cannabis by stealth under the guise of medical need. Thank you, Madam Chair.

Thank you, Madam Chair. I’d just like to take a brief call on clause 5, which, as we know, outlines the defence for possessing and using illicit cannabis. I just want to talk to Supplementary Order Paper (SOP) 177 that the Minister’s put forward and the impacts of the changes on that.

As we’ve sort of canvassed already, we are proposing that we’re changing the definition, which was previously a terminal illness where a patient was likely to die within 12 months. What that SOP is proposing is that we take that broader approach to palliation, and it’s a person requiring palliation “if, in the opinion of a medical practitioner or nurse practitioner, the person has an advanced progressive life-limiting condition and is nearing the end of their life.”

Just talking to the point that Mr Doocey was making about how do we define that, well, I think it comes back to “in the opinion of a medical practitioner or nurse practitioner”. It comes back to medical expertise, as opposed to having some broad definition, so I don’t think there are any concerns around that. The reason why we did broaden it was because we were getting that feedback from select committee—people with, say, neurological conditions that felt like their condition wasn’t recognised under the previous definition, so we did move in response to that.

But the other question we’ve had raised is, is it still too narrow? And a range of people have submitted that chronic pain and other conditions—it should be broadened out much more loosely. We actually queried some advice at select committee about that and why we couldn’t broaden it, and I guess the feedback that came back was that what you’re weighing up is that compassionate approach versus—what you’re actually then otherwise saying is that you’ve got a defence for using illicit cannabis, where that cannabis isn’t created with any safety standards; we haven’t got any idea of what the THC component is in that cannabis, so you could have any concentration of psychoactive properties in that cannabis, and the person using it wouldn’t know until they experienced the effects. We do know that some of those effects can be anxiety, psychosis, etc. So it was about weighing up the potential benefits versus the harms, and that’s why the call was made.

But the problem we’re hearing a lot is that there seems to be a bit of confusion. What we’re not talking about in that definition is who can be prescribed medicinal cannabis, because this bill in no way changes what a doctor can prescribe. A doctor can always still prescribe, as under the current regime, medical cannabis for any condition that they feel the patient may benefit from. So people can still access cannabis at the moment by prescription for any condition, not just those with a palliative condition.

The issue, though—and this is what this bill is trying to do, and will do—is it’s trying to make products available that doctors can then prescribe safely, having that security that they know that it’s produced to an effective standard. So what we’re talking about here is just a temporary measure that we’re putting in place until such time as that medical cannabis scheme is up and running. Just taking the point that—

💬 Chris Bishop: How long’s that going to take?

Well, what we’ve said is that we’ll put those regulations in place within one year.

But the other issue we’ve got is that Mr Woodhouse was talking about the fact that we needed a sunset clause. What we’ve got in the bill at the moment—and it was there right the way through select committee—is an undertaking that this would be reviewed within a 24-month period so that the legislation would be reviewed, in terms of the statutory defence, because it was only ever a temporary measure.

So, as Minister Clark was saying, what we’ve got is a two-year period where we then review it, and then, if the scheme is up and running, that defence may well be looked at and removed. But we’ve got to have the regime in place to have that, so that people can access medical cannabis that is produced to a high standard. Therefore, I support the SOP that’s being proposed by the Minister. Thank you.

Thank you, Madam Chair—didn’t have to work so hard this time. Look, this bill is a throw-together, lazy shambles of a bill. We’ve done a lot of work on our bill, and this Government could’ve taken on board some of the pearlers that we’ve got in our bill—

💬 Kieran McAnulty: Clause 5.

—and made a really good piece of legislation.

CHAIRPERSON (Hon Anne Tolley): Thank you—that’s my job.

But I see that you have the carve-out for requiring palliation, and you have to be certified by a medical practitioner or a nurse practitioner. I mean, we understand all that, but this is just going to allow smoking of cannabis, consumption of cannabis. It just provides a defence against consumption and possession of cannabis. So it’s too simplistic, and it’s de facto decriminalisation, so why don’t you just come out and say it? We’ll just call it and let’s have a referendum on it if that’s what you’re going to do, because that’s, effectively, what the bill will do.

I say this because the police—

CHAIRPERSON (Hon Anne Tolley): Order! Don’t bring me into it. I’m not saying that.

I’m sorry, Madam Chair—nothing to do with you, sorry. It’s the good people across the Chamber there.

💬 Hon Michael Woodhouse: She is from Gisborne!

Ha, ha! You’re from Gisborne; I’m from Northland—we know all about this drug!

I say this because I find the police will find this fraught with difficulties. You stop a car full of people with cannabis in it; one person produces a certificate, and then all the others get off. That is, effectively, what you’re going to have: a lot of unintended consequences. So I can tell you now that police will steer a wide berth because of this, and it will be de facto decriminalisation. If that’s what’s intended, let’s come out and have a referendum on it.

We’ve lodged a member’s bill. It has a comprehensive medicinal cannabis regime put together by the Hon—not the honourable yet, but Shane Reti. He’s done a lot of work in this area, and it’s a clear, workable alternative—an alternative that can be enforced and policed and I think the Government bill fails on both these tests. It’s only minor improvements. It’s also totally silent on how a medicinal cannabis regime would operate in practice.

Now, how do the people that have the certificates, that are near the end of their life—and we’re not denying treatments to people nearing the end of their lives; our medicinal cannabis regime would have brought that out. We’re not denying that—I’m for that—but how does that person obtain that cannabis lawfully? They’ve got a defence if they have it in their possession, but they’ve got to commit an offence to get it, and the person selling to them is committing an offence, so how does that take place? And what happens if the police come upon a transaction taking place? So none of that’s been thought through. So the buyer produces a certificate and walks, and the seller gets locked up for possession for supply, or possession, or supplying, which is a relatively serious offence. So how does that work? This bill doesn’t cover any of that.

The Government has said that it will work out the details later, and, as the previous speaker said, they will think through the controls and the consequences later and talk about it later—maybe a year from now, maybe two years. So that’s typical of this Government. It’s not acceptable. We’ve got a comprehensive alternative. I don’t understand why the good people across the Chamber cannot get together with our people—Shane Reti and co.—and work out a good bill that will have everyone supporting it, and we’ll all be happy, and the good people out in TV land will be cheering as well.

We’ve met with the majority of the people in the Health Committee, and we’ve talked to them. We’re fine-tuning and we’ve got feedback. I know there’s a lot of confusion out there about cannabis. It means different things to different people. For some people, it’s loose-leaf cannabis; to others it’s cannabis-based products that have undergone rigorous testing. Our regime is more the second lot. We’re not for loose-leaf cannabis. I don’t see how you could operate having possession of loose-leaf cannabis—it’s not going to work.

So this bill is too simplistic, poorly thought-out, and a lazy piece of legislation with many unintended consequences. This Government has said that they would be bipartisan with things, and they’re always asking us to come and work with them. We did that with the mental health thing—we tried. We’re just imploring—

CHAIRPERSON (Hon Anne Tolley): Now we need to get back to clause 5.

Sorry, Madam Chair. We’re imploring the Government to work with us, take on board some of these things, and let’s get a good bill together, and let’s all vote on it and pass it through unanimously. Thank you.

Thank you, Madam Chair. I want to thank also the Minister David Clark for his explanation of my question to the change in clause 5 and the difference between “does not commit offence” to “has a defence”. In fact, his answer was that it’s being brought into section 8, and, indeed, that’s occurring in clause 5A, which is the new exemption from section 6 and 7 of the Misuse of Drugs Act where a person has a certificate already, but, actually, that’s not what the base clause 5 was doing. It was providing for some kind of defence against prosecution in an ex post facto situation.

I’m not going to ask the Minister to re-explain that, the difference—which is still in section 7 of the Misuse of Drugs Act. It’s still a change—“does not commit an offence” to “has a defence”—because in subclause (3), it’s still an amendment to section 7(3) of the Misuse of Drugs Act, not section 8. However, the point I’m making is that that actually underscores the confusion of all of this, which is that we have very clear reasons for prosecution that this bill is going to cut right across. When I talked about it, I think, in clause 1, I described it as an island of immunity in an archipelago of offending, where the growing, the selling, the distribution, and the transportation of these illegal substances is still unlawful under the Misuse of Drugs Act, but the person who gets that when they’re terminally ill won’t be prosecuted or will have a defence.

Now, that is about as untidy as it gets. It is a completely nonsensical provision, particularly one which is unnecessary, because police told us that they’re not out there rounding up, arresting, and jailing terminally ill people who are smoking a joint. It just isn’t happening. But what they did say in answer to my question in the Health Committee—which was that, OK, so the poor person with stage four cancer who is dying with less than 12 months to live isn’t going to be prosecuted, but might the police be interested in finding out where they got the substance from, that it might be part of a supply chain that is part of a much more sinister offence against the public? The answer that Mr Chambers gave us was that, well, yeah, he couldn’t rule that out, the possibility that, indeed, the police would be interested and would nevertheless question the person who has been caught with these substances. So rather than being less pursued by police, once this provision is changed, the terminally ill person could be more pursued by police, which underscores what a nonsense this terminal exemption is.

Despite all of that, we had our caucus in a position where it would be prepared to swallow not a big rat—a relatively small mouse—if the greater good could be served, and that was a better framework for the licensing of medicinal cannabis, but we didn’t get it. Now, we’re going to talk about that in, perhaps, the clause after next, clause 7—the famous 59 words, which, apparently, is all that’s needed to tell the health authorities and Medsafe how to go out and set up a groundbreaking new regime.

CHAIRPERSON (Hon Anne Tolley): Well, could we debate that when we get to it?

Yeah—well, it’s a condition of agreement with this clause, the terminal exemption clause, that we actually had a bill that was going to do what it intended to do, which was to create a safe regime. We could’ve lived with this provision, but it needed to do what the preamble to the bill and the general policy statement said, which was that it’s intended as a compassionate measure until affordable, quality products are available.

Now, the corollary to that is that when affordable, quality products are available, the terminal exemption would be redundant, but as Dr Craig points out and makes the point that I’ve been making all along, the bill doesn’t do that. The bill provides for a review of the Misuse of Drugs Act in two years, in respect of this provision, which means what? It means we have to come back when we’re in Government in two years’ time, despite Dr Clark’s—Madam Chair? Well, I’ll seek the call, Madam Chair, even if the bell doesn’t go. Madam Chair?

CHAIRPERSON (Hon Anne Tolley): Oh, I beg your pardon—I beg your pardon.

Thank you. Even if—

No, I haven’t called. I do have to allow the Minister to take a call.

There was a substantive point raised about four speeches ago, in Dr Reti’s last contribution, which I do think is worth responding to. I’ve been collecting substantive points as we’ve gone through the debate. It was in part addressed by Dr Liz Craig’s contribution, and that is—

💬 Chris Bishop: No, it wasn’t.

The member says, “No, it wasn’t.” He doesn’t even know what the point is that I’ve raised, which is a little inane, but anyway—let’s move on.

Dr Reti did raise, I think, an interesting question about loose-leaf cannabis. He wondered whether the scheme would be extended—sorry. Will loose-leaf cannabis be allowed in the scheme if it is shown to be producing benefit for palliative care? I think that was a legitimate question to ask. To clarify, the scheme is concerned about quality of product, not the form. So loose-leaf cannabis can be taken by vaporiser, as I’m sure Dr Reti knows, under the scheme on script if it is considered the patient may benefit. The nuances around that could be dealt with via a review, which is, indeed, provided for in my version of the bill, as opposed to—I guess, it’s an argument against Dr Reti’s own Supplementary Order Paper, which suggests that the Parliament should do that, because it would require expertise and expert opinion to feed into it. So I just wanted to cover that off, because I think this is a point worth covering off.

Thank you, Madam Chair. I’d like to thank the Minister of Health for that clarification. As I understood it, what we heard was that, yes, smoked loose leaf—when you said that’s agnostic to form—would be permissible or available in the full medicinal cannabis scheme, and that’s something that we’ll all need to think about and that New Zealanders will need to think about also.

Clause 5 talks about certification as well, and I’m very interested in certification because I think it’s a great example of the legislative laziness of this bill. So not only are doctors and nurse practitioners going to be diagnosing palliation, and whether it’s advanced, progressive, life-threatening, or near the end of life, but they’re also going to be doing these certificates. They’re going to certify. Well, that’s kind of interesting. What does that look like? I know, why don’t we ask the people who are going to certify how they would go about doing that whether that work flow is actually manageable?

So I asked Minister Clark exactly that in a written question several weeks ago: “What communication, if any, has the Minister or his Ministry had with the Royal New Zealand College of General Practitioners … around certification requirements for the terminal exception and statutory defence under the Misuse of Drugs (Medicinal Cannabis) Amendment Bill,”—

CHAIRPERSON (Hon Anne Tolley): Order! Dr Reti, isn’t that clause 5A—the certification?

Does clause 5 also not talk about—

CHAIRPERSON (Hon Anne Tolley): I’m just looking at it, and it’s talking about a certificate from a medical practitioner or a nurse practitioner.

Correct—I’m talking about the same.

CHAIRPERSON (Hon Anne Tolley): So we are still on clause 5.

Oh yes, indeed—I’m talking about how that certificate might eventuate and who’s going to do it—

CHAIRPERSON (Hon Anne Tolley): That’s right.

—and how’s the practitioner going to do it—correct.

CHAIRPERSON (Hon Anne Tolley): That’s right. So that would really come under clause 5A.

More than clause 5?

CHAIRPERSON (Hon Anne Tolley): Yes.

OK, Madam Chair. Thank you.

The question was put that the amendments set out on Supplementary Order Paper 177 in the name of the Hon Dr David Clark to clause 5 be agreed to.