Misuse of Drugs (Medicinal Cannabis) Amendment Bill

Thank you, Mr Chair. This clause very clearly talks about possession of a pipe, and the purpose of that is for using any plant or plant material. So, if the discussion of loose-leaf was ever out of the discussion before, clearly it’s in here. The Minister indicated last night that smoked loose-leaf is part of a full medicinal cannabis scheme; so that’s just a given. Let’s just accept that and talk to it as it is.

And we heard what he said. You heard from our side that there may be some misunderstanding around the use of smoked loose-leaf in the terminal exception. I made the point last night that if you start people on smoked loose-leaf under the terminal exception without sunsetting it—without putting an end to it—you will not ethically be able to pull it away when a full medicinal cannabis scheme comes in. So there is some understanding of why smoked loose-leaf is in a full medicinal cannabis scheme. Let’s just accept it, the Minister agree, move on, and talk to that. I would also note that the Minister is studiously avoiding the question I put previously around smoked loose-leaf: whether, in a full medicinal cannabis scheme, smoked loose-leaf could be smoked in public—studiously avoiding that.

Coming back to the terminal exception that you’ve already heard has some agreement and understanding—certainly some understanding, I’ll put it, on our part—but studiously avoiding the issue of smoked loose-leaf in public. And I let that stand there as an ongoing question: will he allow some regulations around the smoking of loose-leaf in public? Is that such a bizarre statement to make? Is there something odd about that? If it is, why is that the law in New York? Why does the New York medicinal cannabis scheme say you will not smoke loose-leaf cannabis? Thirty million to 60 million—it’s one of those. It’s good enough for them to say, “Yes, we understand medicinal cannabis is important,”—as do we; that’s why we’re here trying to progress this along, but then to also say—“but we can’t allow loose-leaf to be smoked in public.”—for all the reasons that we have as well.

There are reasons of quality. There are reasons and concerns around contamination. Cannabis is a very good plant for drawing contaminants out of the soil. In fact, in a number of areas, it’s used for what’s called phytoremediation—that is, used to plant to clear the soil. That’s great. It comes out of the soil, into the plant—and then you smoke that? Really, you’re going to let that happen uncontrolled in public? We’ve already raised those concerns around how smoked loose-leaf in public, under the Minister’s full scheme, will normalise the smoking of loose-leaf cannabis. We would contend there’s a different forum for that discussion. That may be in the referendum; it may be in other places. But it is not, and should not, be under the guise of medicinal or medical need. That truly is legalisation. It is legalisation by stealth and legalisation by stealth under the guise of medical need.

Some might say, “Well, look, we need loose-leaf because of the dose-time response. It’s the only way we can get a quick response.” I agree: tablets and other sorts of formulations can take three or four hours, sometimes even longer. Smoked loose-leaf does have a quicker hit, but there are other mechanisms to achieve that, and, indeed, through our suggestions and our Supplementary Order Papers and legislation, we were talking about how you could be vaping a solution which will give you exactly the same dose-time response, that would give you all the quality factors you’re looking for, and that, in a well-manufactured regime, would achieve everything you’re looking for from a physiological perspective and be accessible and affordable. It was all of those things that we have created in the scheme that we are putting forward.

Now, some might say, “Well, what about Bedrocan?” Well, for those of you who don’t know, Bedrocan’s a form of standardised loose-leaf. The problem with Bedrocan is several things. First of all, it’s very expensive, and, secondly, it doesn’t get past some of our issues around normalising loose-leaf in the community. So, again, we’re putting on record, if we haven’t already before, that the National Party will not be supporting the smoking of loose-leaf cannabis in public or the smoking of loose-leaf cannabis under a full medicinal cannabis scheme. Certainly, this clause here very clearly talks to that. It talks to the utensils. It all just gets scarier as you read this further. It talks to the utensils that you’ll have to use. It talks to the plant and plant material. It’s already a given that smoked loose-leaf is in the full scheme, and now let’s just talk about the merits of that: why it should be or why it shouldn’t be. Very clearly, we’re putting a stake in the ground: we will not support the smoking of loose-leaf cannabis under the guise of a full medicinal cannabis scheme. Thank you.

Thank you, Mr Chair. I just wanted to, obviously, respond to the debate points that have just been raised but also to refer to clause 6—which we’re, obviously, debating—which I would note is an extension or, rather, a clarification of the criminal defence which is offered to those who are in palliative care or in palliation. So I just want to actually bring this back to what the crux or the purpose of this piece of legislation is, which is around addressing the issues of access and affordability of medicinal cannabis, and the purpose for that is to try and explain why it is important that we have this criminal defence.

This criminal defence, as has been elucidated by the Minister of Health a number of times, is a stopgap. It exists for the purpose of compassion for those who are presently in palliative care—obviously, formerly, in terminal illness. I would note, of course, as well that the Green Party advocated for this to be extended for any who may need it for medical necessity, but, unfortunately, we didn’t manage to get that across the line.

I also wanted to clarify for the sake of, I believe it was Alastair Scott, who raised the figures, and who wasn’t sure where I got my figures from with regard to the 43 percent of 40,000 New Zealanders who are consuming cannabis on an annual basis, using it for medical purposes. That was from a Ministry of Health cannabis use survey from 2012-13, which, notably, obviously, was, of course, when the National Party were in power.

So I think that that’s important to note, because this is already happening. We need to provide greater safeguards for New Zealanders who may be going down this track. But this is not a prescription-based scheme, when you’re looking at a criminal defence. That’s why it’s important to realise that this is simply a compassionate stopgap to ensure that those who are literally on their deathbed are not being successfully prosecuted and sent to jail.

So I just wanted to clarify those points and simply state that this is not the decriminalisation that has been heralded by some. This section solely concerns those who have been given certification by a medical practitioner that they are in palliative care, and that acts as a criminal defence—i.e., that they would still be put through a prosecution process—albeit, notably, the police, in their submission to our Health Committee said that they are already using their discretion in choosing who they decide to prosecute. But I just really want to quell the moral panic here, because what this clause focuses on is solely those who have been given certification from a medical practitioner that they are in palliative care, and that certification acts as a criminal defence in a case where they are being prosecuted for the use or possession of cannabis or cannabis-related utensils.

Thank you, Madam Chair. I want to touch on this point on utensils, which clearly brings into question the smoking of loose-leaf cannabis. I want to touch on a point that the Minister used in justifying why the smoking of loose-leaf cannabis should be OK as one approaches near the end of life. But before I touch on that in substance, I just want to respond to a point that Chlöe Swarbrick, the member who’s just resumed her seat, made.

This claim that an offering of a defence means that a criminal trial process still continues is complete hogwash. It’s a claim that was made yesterday, as well. Here’s the reality of the situation and the criminal process: if the police believe that the person in front of them has and meets the test for a legal defence to the crime, they simply won’t press the charges. To stand in this House and say “This doesn’t make any great change. It’s still going to go through the courts, but when they are on trial, then they’ll be OK—they’ll get off.” is a nonsense, and we shouldn’t have the public going to sleep at night—or, indeed, during the day as they listen to this—thinking that that might possibly be the case.

The real substance I wanted to talk about was a contribution the Minister made when we were talking about this permitting the smoking of loose-leaf cannabis, and clause 6 certainly does that, through the use of utensils. The Minister made a comment—and he may wish to stand and say that he thinks differently under this clause, but I suspect it would be the same—that “It should be OK because it is nearing the end of life, and what’s the harm if people are going to smoke a joint? They are terminal.”—so, the harm that it would cause is not going to have a material effect on their life at that point. Well, my issue with that—and I feel that the Minister didn’t accurately respond to the question that was raised under that clause—is it doesn’t explain why we are permitting in this bill to introduce a gross inconsistency in the area of how people are able to take otherwise illegal substances.

He didn’t explain why either this bill, or, particularly, this substance, is somehow so greater, better, or otherwise that it should be—in the end of your life, it’s OK to have a law that says you can smoke loose-leaf cannabis because we have other otherwise illegal substances that are used routinely to ease pain or suffering in end-of-life conditions. The most obvious ones are opiate-based products, which are very regularly used in our health profession—very regularly used for people in great pain, and particularly people who are perhaps nearing the end of life, as well. To my knowledge, and, certainly, in recent times, there has been no question that we would pass a law that would say “Well, you’re nearing the end of your life and you’re in a terminal condition, so you can smoke opiate.” Certainly, you can be prescribed opiate-based products—absolutely. It’s a fundamentally—well, maybe “common” might not be quite the right word but it is definitely a part of medical treatment in New Zealand, including for people suffering great pain and nearing the end of their lives. But we’ve never entertained the idea that we would suddenly say, “Well, because you’re almost near the end of your life, you can smoke opium.”, so why would we have a law that says you can smoke marijuana?

In fact, our contention is that the use of medicinal marijuana or medicinal cannabis products should be regulated, should be a medical grade of product and should be properly treated, and certainly not a loose-leaf product. If the governing parties would just pause and actually consider, they still have time to support elements, at least, of the Supplementary Order Papers that Dr Shane Reti has put forward that would put in place the very regime they want to create, and which wouldn’t require even a transition period to permit the smoking of loose-leaf cannabis. That would be good for New Zealand, and it would certainly make this bill a better bill.

Minister Clark, how about you stand and tell us why—what is so different about marijuana, or cannabis, that, nearing the end of the life it’s OK to smoke that, and yet we wouldn’t entertain an idea that says, in the same situation, “We’ll just allow you to smoke some opiate.”? In the context of what the Government is saying this bill is about, it’s the same thing. Palliation—it’s about easing suffering, or easing pain, and helping people to get through those final parts or times of their life. So, arguably—and, I think, in a very logical sense—in that sense, one could argue they are the same. But we wouldn’t entertain saying let’s have the smoking of opium, so why on earth should we entertain this idea of permitting the smoking of loose-leaf cannabis?

Madam Chair, a number of the arguments and issues canvassed in this clause are ones that were covered last night in the debate, but I appreciate not all members may have been following that closely, so, with your indulgence, I’ll just repeat some of the material I introduced to the debate last night, just to cover off those concerns.

Mr Hudson just immediately before was raising the issue of why this illicit product should be legalised and not others. I think the answer was contained in the material he presented himself, in terms of the lack of affordable prescribed products; whereby, with opiates, there are prescribed products available. There are not affordable prescribed products in the cannabis space, and, primarily, this is a compassionate response in the interim—a stopgap, as the member Chlöe Swarbrick put it. The criminal defence is there as a stopgap to stop the prosecution of those who are literally on their deathbed.

The Green Party did advocate, as Ms Swarbrick mentioned, for a wider adoption. I appreciate it’s not directly relevant to this clause, but just noting that New Zealand First put forward a very sensible extension to palliation—which does feature in my Supplementary Order Paper 177—here at this point. Rather than simply the terminally ill, it does extend it a little further but it’s in line with the international use of products in respect of palliation. I want to thank New Zealand First for that initiative.

Going back to Dr Shane Reti, he raised again the issue of smoked loose-leaf being part of this scheme. He repeated his argument from last night on the earlier clause 5, so I will just repeat my answer from last night to the issue when he raised it on clause 5. The extending of the scheme—for example, to those who might have a palliative benefit from smoked loose-leaf—will be dealt with in the review that comes forward eventually if that’s an issue, but the fundamental point is that the scheme itself is concerned about the quality of the product, not the form. Loose-leaf, as we know, can be taken in a vaporiser under this scheme on script if it is considered to be of benefit to the patient. So that’s to cover off Mr Reti’s point.

I will stress that this clause is about the defence provision; it’s not about the types of products that may be available on the market. Though members, I can see, have enjoyed discussing those things, this is about the defence provision.

The question was put that the amendments set out on Supplementary Order Paper 177 in the name of the Hon David Clark to clause 6 be agreed to.