Misuse of Drugs (Medicinal Cannabis) Amendment Bill

Thank you, Mr Chair. It’s a pleasure to speak to clause 5A of the bill this morning, a clause that talks about certification, primarily, from a medical practitioner or a nurse practitioner around the definition of “palliation”, which we’ve discussed previously, which clearly has some issues as well.

Now, it might seem easy to write into a bill, “You will have a medical practitioner or a nurse practitioner certify.” The workflow to that is complex, and it’s really important we understand the workflow in as much as if we look at the Australian scheme, for example, that’s one of the reasons why the Australians have failed. They didn’t do well on the workflow. Amongst other things, they require two certifying medical practitioners, and that’s been a substantial hindrance to them. So understanding the workflow to certification is really important, and we need a lot of detail around how that might happen. But again, I think this clause is a really good example of what the media have framed as legislative laziness around this bill and the vacuum—the void—that sits in the lack of detail.

So we’re saying that medical practitioners and nurse practitioners will certify whether a person has palliation. How does that actually work? Well probably a good starting point would be to go and ask GPs and nurse practitioners and say, “How might we do this?” So in written question No. 29033 (2018) a few weeks ago, I posed this to the Minister: “What communications, 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 …?” His reply was, “I am advised that no communications on this subject have occurred between myself and the Royal New Zealand College of General Practitioners or the Ministry … and the Royal New Zealand College of General Practitioners.” How hard could that have been to go to those people who were actually doing the certification and say, “Here’s what I’ve got in my head. How might we do that? What hurdles could befall us?”

You know, the same is going to be for the Minister of Police, because we have this issue around how we’re going to monitor how we’re going to exercise discretion or due judgment, or whatever we are going to do for people who are pulled over by police and demonstrate that they believe they have a defence under the terminal exception and statutory defence. We had police tell us this was going to be challenging for them. So, again, you’d think, “Well, why don’t we ask police what works for them? What certification might fit into the scheme?”

So written question No. 29032 a few weeks ago to the Minister of Police, the Hon Stuart Nash, asked: “What communications, 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 …?” Here’s the reply from the Minister of Police: “Neither I nor Police have had any communications with the Royal New Zealand College of General Practitioners … around certification requirements for the terminal exception and statutory defence”. You’d think you’d have that discussion. The workflow is hard. Get the workflow right. Things would be a lot easier just to reach out to the two main certifying bodies. “How is this going to work?” would be very useful.

Now, what we know, because we’ve done a lot of detail on the scheme—we can describe how it might actually work, and then what I want to come to in a moment is talk about how we could navigate all of this with a medicinal cannabis card. So what I want to talk to, first of all, is we know, because we’ve done a lot of work on it, that we can make this easy for GPs, particularly, to certify. How you’d do that is this: there’s a mechanism on every GP’s desktop where if you want to do what’s called a special authority, you enter the patient’s name, all their details are lifted out of the file, you enter whatever you’re requiring, and it automatically goes to the ministry. It’s called a special authority. This would work well for a medicinal cannabis scheme. This would work well for certification. It would achieve a lot of our goals, and it just demonstrates the workflow. When you think about it, GPs could do this. I’ve spoken with them; their hurdle is like the Australians had: if it’s too cumbersome in its compliance, they just won’t do it. So we’ve thought through the workflow that would make certification happy.

What we’ve also thought through, and I want to come to the topic now, is a medicinal cannabis card, because it gets past the issues we’re talking about around certification, around what sort of certificate you’re actually going to produce. We produced a Supplementary Order Paper. That isn’t sitting on the Table, as it was indicated to us that there may be other mechanisms to discuss this. Our thinking is to have a medicinal cannabis card, which a large number of jurisdictions have—a large number of jurisdictions have. What happens here, and it partly draws on some of the work that member Swarbrick brought to the Table several months ago—certainly earlier this year—around the issue of the complexity of GPs deciding what’s in or out. In our hands, what we decided was a GP, on the advice of a specialist panel, would decide eligibility. A GP is actually just saying a person is eligible or not; they don’t actually have to say “Yes, I’m going to give you medicinal cannabis. Here’s the dose—whatever, whatever.”, and that was part of what member Swarbrick brought in her bill to sort of help GPs get over some of the hurdles they have around medicinal cannabis. Certainly, all the feedback we’ve had is that that would work.

I just want to go over that again. Eligibility criteria for the scheme decided by experts—we’ve already had this discussion with the Minister previously. We shouldn’t be here in the Chamber defining what the criteria are, and all we ask is of the certifying GP or nurse practitioner, as this clause is requesting, is they’re just saying that, yes, this person is eligible, not actually prescribing the dose form or anything else. We think this would substantively help the certification process. What we also discuss around a medicinal cannabis card is that the details then go to the ministry, who issue a card. That card can then be presented to a dispensing pharmacy. It can then be presented to police if you should be pulled over. Furthermore, we also talk about a carer card, recognising those people who may be too frail to travel.

Now, there is a huge appetite for a medicinal cannabis card in the population, in as much as an omnibus survey that’s been conducted by Horizon Research, soon to be published, asked exactly this question. What the preliminary results show is that the card is well supported by New Zealanders: well over 50 percent are in support and agreement of a medicinal cannabis card that would resolve the certification issues that we’re talking about here in clause 5A—a medicinal cannabis card instead of some nebulous sort of paper that the Minister is suggesting, that we don’t know, and that he’s had no discussion on with any of the actual certifying bodies. If you ask who might be opposed to that, well, the survey also showed that only 17.9 percent said, “No, a medicinal cannabis card wouldn’t work for us.”

So we have a solution. So what we’re saying is the certification as it stands in the Minister’s hands, as it’s written in clause 5A, has a lot of flaws and the workflow, in particular, may be enough to bring the whole scheme down, both the terminal exception and the medicinal cannabis scheme—again, I’d use the example of poor workflow in the Australian scheme. We created a solution. Our solution was a medicinal cannabis card. The access to that was through the special authority software mechanism that GPs have, and we have run this past the sector and have some agreement and feedback with them. What I’m also presenting is evidence that the New Zealand public is in support of a medicinal cannabis card.

So the challenge I’d put to the Minister is: why have there been no discussions with the main certifiers? Clause 5A talks about certification. Why have there been no discussions? Is he concerned that the workflow may be so much of a hurdle that the scheme falls over? Will he consider other certification mechanisms, such as special authority through GP software and a medicinal cannabis card? I think if we could have some answer to that, that would be most enlightening. Again, it stands to our underlying platform that there’s just not enough detail in this bill. Thank you.

Firstly, I’ll address briefly the certifying issue, and then I’ll clarify for the House what this clause is about. Dr Reti has raised the issue of how the certifying process would work and has managed to speak to a number of Supplementary Order Papers that were ruled out of order in the House, carefully under the guise of talking about the workflow and so on.

This will be the subject of consultation as the regulations are developed. Dr Reti has obviously talked to a few clinicians, as have I, about how this might work and has developed a thesis. What is important, in my view, is that there is actually a proper consultation on the regulations, that we ask the professions for their judgment, the experts for their judgment about how best this should work, and develop a mature view on how best to make this work. He doesn’t mention nurse practitioners, which are explicitly outlined in here. I don’t think his proposal even considered nurse practitioners.

But the underlying point is that when it comes to how the process will work, there will be a full consultation process to ensure the regulations are fit for purpose, and that’s how good legislation and regulation is developed. It’s not about parliamentarians coming forward with the thesis after having spoken to a few GPs, though that would be a good starting point. Dr Reti’s starting point is, you know, worthy of itself in that respect.

What I would say about clause 5A, though, more generally, just to clarify for the House, is that the provision we are debating now is a provision that moves the exception provision for people requiring palliation to be able to possess and use cannabis to section 8 of the Misuse of Drugs Act, which would make the location of the exception consistent with other similar provisions set out in section 8 of the principal Act. Essentially, what we’re doing here with this clause is making the Act easier to navigate and understand. So this clause is really about consistent drafting—that is the purpose of this clause. It’s not really a great substantive debate, as I see it, but I did want to address the issues Dr Reti raised.

Thank you, Mr Chair. I appreciate the Minister’s clarification on that. I did hear, I think, him say in respect of the licensing regime and details like the card that there would be a comprehensive consultation process, and that that’s how good law is made. I would disagree, actually. That’s how lazy law is made, because we are the lawmakers, and what we are doing with this bill is we are delegating the responsibility for creating a groundbreaking new regime entirely to people who are unelected officials. Actually, one of the things that we would be doing as a party if we had confidence that we could get our two really important—I don’t want to call them bottom lines, but they are—bottom lines across the line, and they are a sunset clause on the terminal exemption and much greater detail about the licensing regime in the bill, then we would avoid the need for coming back, because Parliament would have scrutinised what that framework would have done—it would have done so this morning—and we would have a much better framework in place.

So I just want to reiterate where we’re at now. In respect of clauses 5, 5A, and 6, it’s really important that we put a time limit, as the Government has said in its explanatory note is the purpose, and, secondly, that we have more detail around the licensing regime. We’ll come to that later on. Now, Dr Liz Craig talked last night about the reason why the end date for this clause is not necessary by referring members to clause 8—the fact that there is going to be a review. It’s not a review of this clause. It doesn’t even specifically mention the terminal exemption; it just says there’s going to be a review of the Act two years later and that it should be concluded within 12 months. That is an entirely insufficient response to concerns by my party and the public that this is a stalking horse for the decriminalisation of cannabis. There has to be an end date because that’s, indeed, what the purpose of this clause is.

Now, I want to ask the Minister about a reconciliation between this and the licensing regime. I may have missed it last night, so it will be necessary for the Minister to clarify this point for me. It’s very important. That is on the question of whether the licensing regime, and the lack of detail means that we can’t rule this in or out yet by the 59 words in the initial bill—whether, indeed, any of the approved medicinal products that will be produced under the licensing regime could be loose leaf and smoked. Yeah, and the Minister is nodding, and I did miss it last night, so I do beg his indulgence, because it goes to the heart of the question that I have, which is, respectfully, how will one tell the difference between whether a product being ingested is an illicit substance under the Misuse of Drugs Act or a legal substance under the licensing regime that this bill would create? Indeed, it’s going to be really hard to tell the difference, and what that could potentially do is create a criminal matter—a Crimes Act matter or a Misuse of Drugs Act matter—to a prescribing technicality.

Actually, again, if loose leaf is part of the licensing regime, we are definitely—definitely—in this House this morning considering the decriminalising of illicit cannabis, because it seems to me that it will be impossible for a police officer to act on the smoking of cannabis when the defence is no longer then “Well, I have an exemption because I’m terminally ill”. It’s going to be “Well, I got a prescription from my doctor”. They’ll say, “Well, OK, show us the prescription.”, and he’ll say, “Well, I haven’t got it, because I used it.” They’ll say, “Well, we’ll go to your pharmacist.”, and he’ll say, “Well, actually, I didn’t quite tell the whole truth. I borrowed a prescription from my mate”—or the output of that prescription—“because I, too, was feeling like I needed some medicine.”

Now, I’ve borrowed Voltaren; I’ve lent Voltaren. It was a prescription medicine, and it’s probably not the best thing to do, but it’s not a hanging offence. We could be normalising loose-leaf cannabis to become a medicine in the same way that an illicit drug could be ingested. So I think this distinction needs to be very clearly made, because if loose leaf is going to be part of the licensing regime, this clause could not only become functionally obsolete but it could actually decriminalise cannabis use more generally.

Tēnā koe e Te Heamana. Tēnā koutou katoa. It’s nice to take a call on this new clause 5A, which is included in Supplementary Order Paper (SOP) 177, the Minister’s SOP. But I want to make the point that it actually wasn’t part of the Health Committee’s deliberations, and, in fact, it has come about through the intervention of New Zealand First. I want to acknowledge my colleague Jenny Marcroft, who is in the House today, because, in fact, it was also in response to 74 submissions that we received that actually said that the exemption should be premised on a doctor’s or nurse practitioner’s certification of palliation. So that’s really important, because the context of this particular amendment is actually all about verifying that the person who is using cannabis for a medicinal purpose is doing so because of palliation.

It’s really interesting—I’ve been listening to a lot of the debate about what palliation is. Well, in fact, our Ministry of Health in 2017 produced a palliative care action plan, and it is actually quite clear within that plan what palliation is, and I’m assuming that doctors and nurse practitioners around Aotearoa New Zealand have read it. So if people want a definition of who possibly would benefit from this particular clause: “Palliative care is for people of all ages with a life-limiting or life-threatening condition. It aims to: optimise an individual’s quality of life until death by addressing the person’s physical, psychosocial, spiritual and cultural needs; support the individual’s family and whānau and other caregivers where needed, through the illness and after death.” And, in fact, that is exactly what we heard in the Health Committee. When I look at that select committee process, we actually had, of the 1,786 submissions, 584 that dealt with the exception and statutory defence provision that, in fact, is included in this new clause 5A. Those submitters came to us because of pain. Those submitters came to us because they were experiencing cancer, epilepsy, multiple sclerosis—a number of debilitating conditions. So the responsiveness that we’ve seen within this clause, I think, must be commended.

I guess the other issue I wanted to really highlight is that the purpose of verification is to ensure that until the medicinal cannabis scheme, through regulation, has been constructed—and it will be constructed, from our perspective, with the medicinal cannabis advisory committee, whose sole purpose is to consider the current prescribing process for medicinal cannabis products and information needs for clinicians. It is incredibly important. The reason I highlight that is it seems that the other side are pre-empting what we actually believe the public deserve a right to be involved in. When I say “the public”, we are talking about health practitioners, interested parties—i.e. those who came to the select committee, those who actually are using cannabis in a medicinal manner because of their debilitating illnesses.

We heard very clearly from Māori—for example, Hāpai te Hauora when they presented—who were very clear that the composition of this medicinal cannabis advisory committee must include those that this bill is relevant to. So Māori, Pacific, the growers, clinicians—having everybody that has a vested interest in ensuring through regulation that our medicinal cannabis scheme is fit for purpose is incredibly important.

I make these points because we were really clear through our deliberations that it wasn’t for us to set regulation, and, in fact, it isn’t for Parliament to set regulations. Regulations are not done by Parliament; they’re done by and through processes such as developing this medicinal cannabis advisory committee. So if the National Party want to participate in that process, ka pai. Write a submission, be actively engaged in the next phase, but let’s be very clear that this new clause 5A is all about verifying that people who are currently using cannabis for medicinal purposes will be able to do so without prosecution. Kia ora.

Thank you, Mr Chair. There are a few questions coming from that, certainly from the previous speaker, Louisa Wall. Their empty medicinal cannabis scheme is not fit for purpose. To the Minister’s last reply—

💬 Louisa Wall: It will be.

Well, we don’t know; we can’t see it.

CHAIRPERSON (Adrian Rurawhe): Order! Members should not wander around the Chamber interjecting. Don’t do it.

Thank you. To the Minister’s last reply, where he describes discussing with a few doctors, I suggest he put that to the Royal New Zealand College of General Practitioners, if their representation is just a few doctors. I don’t think they’ll be very happy with that.

The bill talks about smoking. We’re having this discussion around smoked loose-leaf. The question I want to ask the Minister and I’d like a response to is: we’ve already heard that smoked loose-leaf will be part of a full medicinal cannabis scheme; will smoked loose-leaf be able to be smoked in public? How does that align with the Smoke-free Environments Act? I would be very interested to hear that discussion and a response from the Minister. I’ll phrase the question again: will smoked loose-leaf, under a full medicinal cannabis scheme, be able to be smoked in public? Thank you.

Thank you, Mr Chair. I want to, firstly, add my call to the question that Dr Shane Reti has just asked, about where, how, and in what circumstances the so-called “patient” who has been prescribed what is presently an illicit substance, somehow for their benefit, is going to be able to take that. I can imagine somebody standing outside the Westfield shopping mall smoking a joint and using the defence that they were taking their medicine. In fact, what would stop them from doing it inside the mall? Well, the answer is: well, probably a regulation.

Louisa Wall made an extraordinary comment, not on the face of it wrong, that shows the ridiculous circularity of the argument that we’re now having. She said, I think, paraphrasing, that Parliament is not involved in the development of regulations—and that is true. That is technically correct, with the corollary, obviously, that the Regulations Review Committee is there for a reason. Parliamentarians, generally, are not. But the reason we’re having this discussion is because we are debating a bill which creates a regulation-making power with absolutely no detail about what that power is. We are delegating that—and this is my point—to unelected officials, and that is not acceptable to the National Party.

We are the lawmakers, for better or worse. We stand or fall by the decisions we make in this House. It is not acceptable, even in a regulation-making framework—so, for example, there are plenty of regulations that the New Zealand Transport Agency make under transport legislation, but that transport legislation is carefully crafted to give the officials the sorts of criteria that is needed to do things like setting speed limits or things like that. We maintain, using that analogy, for example, the prerogative and the power to decide what the blood alcohol limit should be in drink-driving conditions. We don’t delegate that to officials, because it is an offence regime and it is something that, quite rightly, sits within this House.

So the whole point of the debate we’re having is not that we should have regulation-making power that we don’t have, but that we shouldn’t be delegating all of that power to unelected officials, particularly now that we know that the delegation could include this committee—what was it called? This medical advisory committee of some sort will now decide—and I think this is why the Minister is quiet, but he could clarify this for us—whether loose-leaf smoked cannabis becomes a medicine in the future. How on earth—

💬 Louisa Wall: It already is in Canada, Michael.

—it could possibly—well, we’re not in Canada, Miss Wall; we’re in New Zealand, and we decide. In fact, we’re having a conversation this week about sovereignty, and this party believes in the sovereign decision-making ability of this Parliament. We’re not going to delegate it out to people who don’t live in this country. So the question is: how on earth—and I hope I’m right on this, because it’s actually the only saving grace, that the officials, the so-called medical advisory committee, might have greater nous than the Minister and his Government have about whether or not to delegate away this power.

I can’t for the life of me see how loose-leaf smoked cannabis could possibly be described as a medicine. It fails just about every test of dose control, of THC limit, and of the ingestion process. The blimmin method would be worse than the cure. We are heading towards smoke-free. It is a ridiculous situation.

I can’t believe we’re actually debating how loose-leaf cannabis is going to become a medicine. It should be simply ruled out, and that’s what Dr Reti’s very good member’s bill and his Supplementary Order Paper that we’ll continue to debate in clause 7—the famous 59-word clause. This is fundamental to the regime we’re setting up. Otherwise, there is no retort to the real accusation that what we are doing this morning is decriminalising cannabis. As I have said on a number of occasions, we’re going to have that conversation, but we have to be careful not to conflate the two, and that’s exactly what we’re doing.

E Te Mangai, tēnā koe. Tēnā koutou e Te Whare. I just wanted to refer to the debate that I believe we’re supposed to be having with regard to new clause 5A.

Tim van de Molen: I raise a point of order, Mr Chairperson. Now, earlier in this year, we had an instance where that member had her laptop on the top of the table with an offensive slogan on it and it was ruled inappropriate for this Chamber. That slogan remains on the laptop and is again presented in this Chamber. I would ask you to confirm that does not happen anymore. Thank you.

CHAIRPERSON (Adrian Rurawhe): I thank the member for immediately remedying that issue. Thank you.

CHLÖE SWARBRICK: You’re welcome, Mr Chair. That had been the reason that I’d oriented my laptop away from the member, who seemed to be offended by the slogan. I just wanted to refer to clause 5A, which obviously amends section 8. This is actually the clause which is regarding certification of a person requiring palliation, which I believe the Minister has clarified—

💬 Hon Michael Woodhouse: I raise a point of order, Mr Chairperson. I do apologise for the slight delay, because I was reflecting on what the member had just said—that Mr van de Molen was offended by the ruling. Now, Mr van de Molen was very clear that it wasn’t an offence. There is no advertising allowed in this House and I think that should be pointed out to Ms Sroubek, who was, frankly, challenging your ruling—

CHLÖE SWARBRICK: Did you just call me Sroubek?

💬 Hon Michael Woodhouse: Swarbrick, sorry. [Interruption]

CHAIRPERSON (Adrian Rurawhe): Order! I thank the Hon Michael Woodhouse. He is correct and I should have addressed the issue. I didn’t quite hear exactly what the member said, but, really a final warning: do not comment on rulings of the Chair, thank you.

CHLÖE SWARBRICK: Understood, Mr Chair. So, bringing back the debate to—

💬 Hon Clare Curran: A point of clarification.

CHAIRPERSON (Adrian Rurawhe): No.

💬 Hon Clare Curran: I raise a point of order, Mr Chairperson. Sorry, Mr Chair. I’m seeking a point of clarification.

CHAIRPERSON (Adrian Rurawhe): No. Points of order are not for clarification. If you have a point of order, please come to the point of order.

💬 Hon Clare Curran: Certainly, Mr Chair. I’m trying to understand, with your permission, what the original ruling was that the member was commenting on. Was it the fact that a slogan, a party slogan, which is basically as we’ve got here, was being displayed on a computer screen?

CHAIRPERSON (Adrian Rurawhe): Order! The member can read the Hansard records.

CHLÖE SWARBRICK: Thank you, Mr Chair. So bringing the debate back to new clause 5A, amending section 8 regarding certifying that a person requires palliation. I just wanted to clarify a few points that were raised particularly by members of the Opposition. Many times I heard referral to loose leaf. Loose leaf is not mentioned anywhere in this draft legislation in this piece of legislation. It is not mentioned anywhere at all. With regard to their concerns about the potential inclusion of it, that is something which will be discerned by the expert group that will be created with regard to the delegated powers to the Ministry of Health. I’d also like to point out that I’m somewhat confused by the National Party’s assertions that on the one hand they want to allow experts to create these regulations but on the other hand they want politicians to create these regulations. So if that could be clarified for me; that would be incredibly useful.

I would also like to state that there seems to be the need to reconcile the points around a medicinal cannabis card and certification from a medical practitioner. I also just wanted to refer to the submission from the Medical Council of New Zealand whereby they provided a statement on medical certification and stated that “As a doctor you’re expected to sign a variety of medical certificates that range in purpose from confirming sickness to certifying death and are required by receiving agencies which include employers, insurers, ACC, and Government departments.” It seems therefore to be a matter of course that doctors and nurse practitioners provide certification about the state that patients are in. Notably, this clause is not about certifying that someone can use medicinal cannabis. It is about certifying that somebody requires palliation, and that then serves as a criminal defence for using medicinal cannabis.

I also wanted to speak to the points raised around smoking in public and around the fact that we’re somehow decriminalising medicinal cannabis. I wanted to refer the members who raised such concerns to the submission of the New Zealand Police at the select committee stage, at the Health Committee, who stated that they use their discretion presently in going about prosecuting people who are using medicinal cannabis. But, notably, unfortunately the most recent statistics that we have on the consumption of cannabis in this country come from, I believe, the 2012-2013 Ministry of Health survey, which demonstrates that 400,000 New Zealanders are consuming cannabis on an annual basis and 42 percent to 43 percent of those are using it for medical purposes already. We currently have a state of play whereby this is existing in the shadows. Do we not want greater medical oversight of this situation? So I’d love to hear the member’s responses to those points.

Thank you, Mr Chair. I will respond to several of the points, noting that the clause is a very narrow one about the location of an exception to make it consistent with other similar provisions in the principal Act at section 8. But issues have been raised from the members and I wish to respond to them in good faith.

The first is the notion that people in the final stages of life who are in palliation will suddenly fill our malls with smoke. The reality is, of course, that most people who are in the final stages of life and using medicinal cannabis products are using sprays or oils—I say that for the members’ benefit—and it’s unlikely, of course, that they will be necessarily in social settings. I say that out of compassion to those who are dying. This part of the bill is really about making sure—sorry, not this part, but the part that refers to palliation really is about making sure that there is a compassionate response and that people are allowed to use illicit cannabis products in the final stages of life.

There was a substantive point raised—again, maybe not directly related to this clause but about the review—and the Hon Michael Woodhouse was making the case that delegation to experts to make the regulations was somehow lazy law. I think that’s a little bit cute, but he was making an argument and I will make the opposite argument that I think that it is better law and better regulation when we have wide consultation with the public. But I do want to push back on his suggestion that somehow in the review that would happen after two years, the main thrusts of the Act would be left out of scope. They won’t be. Implementation of the exception and defence provisions, for example, will certainly be reviewed.

Thank you, Mr Chair. This is an interesting section. Unfortunately, this is the first opportunity I’ve had to speak on this bill, but I’d have to start by qualifying that, actually, I’m a very liberal person in this space. I’m not personally against the consumption of cannabis, particularly for medicinal purposes, but I think that we need a good framework to deal with it, and I don’t believe this is. I think this bill is really akin to a legislative blank cheque, and I think that’s been well covered by my colleagues to the left of me—in their seating, not necessarily in their political spectrum.

But what I don’t get in this clause 5A is it says that a person who requires palliation “may procure, possess, consume, smoke, or otherwise”. It is my understanding that the main thing for a code of ethics for a medical practitioner is to first do no harm—“Primum non nocere.” So on the basis of that, how does smoking get into this bill? If we’re talking about medicinal purposes, while I accept that things like chemotherapy certainly do do some harm, on balance, when all the evidence is looked at, while it does some harm to the body it is actually doing more good than harm, therefore it is a medicine, and therefore it is able to be used in a considered way. But when you’re smoking loose-leaf cannabis, where is the balance in this to allow it?

I’m not a medical practitioner, but I’m not aware of any medicine being delivered by smoking. My question to the Minister is: what work did he do, or his department do, to put smoking into this clause, with that main thought being what potential harms that smoking does? We spend an inordinate amount of money in New Zealand trying to get people off smoking tobacco because of the harm it does, and there’s new evidence coming out now that smoking cannabis also does quite a lot of harm to the body, so where was the work done on this to put that into this clause? I think that we as legislators also have a duty of care, and we should not be passing laws that allow people to do harm, in effect, to try and treat another harm—that is, their medicinal use for them in the first place.

Now, my colleague talked about a medicinal marijuana card or cannabis card. Certainly, the places I’m aware of that allow medicinal cannabis all require a medicinal cannabis card, and I think that it seems crazy that we wouldn’t have one. To have it handed over to a bunch of officials, who may well consult with the public—we don’t allow other regulations to be made in that source. We give a steer to those regulation-making powers so that they fit within a framework that Parliament has considered.

Now, I know one of the previous speakers said, “Well, it should go out to full public consultation.” Well, this is the first part of public consultation, with the elected members in this Chamber. It is our role to try and get something in the legislation that is fit for purpose and that gives a good steer on how this might be managed, and I don’t believe this bill does that at all. I was very, very green on this space. I didn’t really know a lot about it until Dr Reti put his particular bill up, and we all had an opportunity to learn a great deal because of the work that Dr Reti has done in this space.

As I said, I’m quite liberal on this, but I think if you’re going to make a law, you’ve got to make a good one. It should be incumbent on us to actually first do no harm, ourselves, and I think that this bill is actually leaving it wide open for us to do a lot of harm, and particularly when we are sanctioning and saying, “OK, don’t smoke tobacco. We’re spending a lot of money to stop you smoking tobacco because it’s going to do you a lot of harm, but, actually, in this case here, we’re going to send you another message: the public, please, if you’re feeling you need medicinal cannabis, it’s OK to smoke it.” We are, effectively, sending a mixed message and I don’t approve.

There was one point in that contribution that related to the bill, and arguably not to this clause, but I will reflect for the member that, regarding the issue of smoking products, while I’ve said that that’s very uncommon in the final stages of life, this compassionate exemption that’s in the bill to allow people to consume illicit cannabis products for a limited period of time is in there because people are dying. We are not particularly worried about the harms caused from smoking should they wish to consume the products in that manner in the final stages of life. This is a compassionate clause. It’s a temporary thing until we have better supply of products. This has been well canvassed in the media and well canvassed in the House. I do urge the member to have a close look at the bill.

Thank you, Mr Chair. Not for the first time, I agree with every word of the Minister’s last intervention, and that’s why, were we able to secure an end date to what the Government, in their own words, describe as a temporary exemption, we could support this clause. But we now know—and in his previous intervention, the Minister used what I thought was quite a revealing comment—that this part of the bill, the terminal exemption, is actually the main thrust of the change. It’s not, actually. Those were the words that the Minister used. He’s shaking his head. He might be able to take another call. I heard him say, “The main thrust of the Act”—and I’ll check the Hansard—“is the terminal exemption.” Now, that is a quite remarkable comment. I would have thought that the main thrust of that would be the licensing regime. And my criticism of the famous 59 words is predicated on the licensing regime being the main thrust of the bill.

He then went on to talk about the review and my commentary on the review being—I can’t remember the words he used, but they were unfair. Actually, I maintain that reviews are sometimes necessary and appropriate, but if the purpose is to have a finite period of time, then tighter, better legislation is to say “Put the time frame in and then come back to Parliament if that time line needs to be extended.”, not leave it open-ended, have a review, and then, maybe, at the prerogative of the Government of the day, decide to give effect to the temporary nature of this part of the Act. It’s completely around the wrong way.

Now, I want to just touch on one other thing the Minister said, and that was in respect of a somewhat, I admit, extreme example of a person who is smoking cannabis in a mall, and he did indeed say—because we are talking about people who are terminally ill—that they’re unlikely, of course, to do that. Those were his words: they might use a spray or an oil. But, indeed, we don’t make laws for the most; we make laws for every situation, and, therefore, if an Act is silent on those sorts of things, it may well give rise to those sorts of offences, not only to the Misuse of Drugs Act but to the Smoke-free Environments Act.

I’ll touch on smoking now, because Ms Swarbrick said in her intervention that there is no reference to loose leaf in this bill. Actually, that is true, but in this clause we’re talking about proceedings for an offence against stuff that is smoked, and in the next clause, new clause 5A, the tools for smoking plant material. The clear inference is that this stuff will be smoked—which is OK. As the Minister said in his last intervention, these people are at end of life. If they choose to take comfort from a psychoactive THC-based cannabis product because they believe that it eases their burden, more power to them, I say. And, indeed, as Richard Chambers, the assistant commissioner of police, has said, that’s probably happening now and they’re not being rounded up and arrested and jailed.

So we don’t have a problem of that nature, if indeed legitimising that behaviour is a temporary goal pending the development of a licensing regime. If it is, let’s just put a date on it. We’ve suggested “30 months and a day” or something. We can debate that and change it, but to create an open-ended exemption, which goes on even after the medicinal cannabis regime is in place, completely undermines the purpose.

Well, the Minister was shaking his head and he said, “Actually, it’s not the main thrust of the bill. The main thrust of the bill is to have a medicinal cannabis regime.” That’s OK. This clause, if it’s not time bound, will completely undermine the regime. Why would people switch over? Why would they? It’s a technical offence then—“Oh, well, you know, I got it from the guy down the road, but I could have equally got it from the pharmacist.” Cannabis use then becomes a technical breach of a pharmaceutical framework, not the Misuse of Drugs Act. It’s really important. And, again, Ms Swarbrick talks about, “Well, the National Party wants to write the regulations.” No, we don’t, but it’s not unusual to have a belts and braces approach to the criteria that officials then use to go away to write those regulations. And there’s a particularly good clause in here both on sunset and on non-use of loose leaf.

I move, That the question be now put.

Thank you, Mr Chair. I too would like to comment on Chlöe Swarbrick’s message that loose leaf is not mentioned in the bill—and it’s not. But it’s quite clear that one is able to smoke plant material. So let’s be honest about it: we are talking about loose leaf.

My point today is that I am disappointed, and I know others are disappointed, with this bill, because the general public—well, my constituents—expected medicinal cannabis to be able to be used for pain relief; to be considered—and I’m talking about the tablets and the oils and the sprays—as a regular medicine to be prescribed by a doctor or a nurse practitioner, perhaps. Ms Swarbrick talked about medicinal cannabis, that people were smoking it already—43 percent of them apparently—for medicinal or medical purposes. That seems like a very large number, and I’m not sure where she got the numbers from.

But my point is that if it’s good enough for a terminally ill person to smoke loose leaf for compassionate reasons, as the Minister has said—“for compassionate reasons”; he’s said that a couple of times—why can we not be compassionate for those who are in pain, immense pain and enduring pain, who can’t get up in the morning, are restricted to a wheelchair or a bed and find it difficult to move around the room, but are not in a terminable space—they’re not in a terminable space? So if—if; it’s a hypothetical—it’s good enough for a terminally ill person, why is it only good enough for a terminally ill person, on compassionate grounds, to smoke loose leaf? I say that this is just a foot in the door.

The problem here is that the scope—the terminally ill will, of course, be able to smoke loose leaf on compassionate grounds, and then, next week or the week after, it’ll be able to be used for someone with debilitating pain, for example.

💬 Marja Lubeck: What’s wrong with that?

Well, if there’s nothing wrong with that, put it in the bill. The reason you can’t put it in the bill is because the general public will not accept loose leaf generally for medicinal purposes. They will accept a regime that is tested and tried and monitored and regulated so that the doctor or nurse knows what their patient is receiving when they prescribe. To me, if you promote and accept that medicinal loose leaf is OK for compassionate grounds, then get it out there. Let the doctor do their job and prescribe the stuff on compassionate grounds. But we know that’s unacceptable to the public. We know that that would just legitimise the smoking of loose-leaf cannabis in the malls, as Mr Woodhouse has said—in the malls; on the streets—because they’ve got a back pain, they’ve got debilitating pain. And that’s why this loose-leaf option is a problem.

Compassionate grounds is not a good enough reason to allow loose leaf. Compassionate grounds—we should be using a certified, regulated, measured, and qualified tablet, oil, or spray that’s been produced by certified growers, if you like—producers; manufacturers—and is able to be prescribed by a doctor for any purpose. Let the doctors do their job. Rely on them to say, “You’ve got this condition, sir or madam. These are the options: we can use medicinal cannabis in tablet form or spray form, or we can use some other type of painkiller or medicine or penicillin”, or whatever it might be—I’m not a doctor. There’s lots of options available. Let the doctors do their job, but don’t let loose-leaf cannabis out legitimately on the grounds of compassion, because if it is for compassion, I say let it be for compassion.

I move, That the question be now put.