Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill

E Te Māngai, tēnā koe. Tēnā koutou e Te Whare. This is, of course, the most substantive part of this proposed piece of legislation, that being to increase the penalty for those who are supplying, or who are presumed to be supplying as a result of the threshold that they possess, synthetic substances, or rather actually all psychoactive substances—a point that has been made abundantly clear throughout this debate.

The Psychoactive Substances Act was created in 2013 for the sake of catching all substances that were not encompassed within the Misuse of Drugs Act classifications scheduling. It was an attempt to try and fill the gaps in terms of the large amount of substances that were being produced by backstreet chemists. As proposed in clause 4, it amends section 73(3)(a) of the Psychoactive Substances Act to replace “2 years” with “8 years”. There are a number of Supplementary Order Papers (SOPs) to this clause, many of which seek to provide things that must be considered by judges in their sentencing of those for eight years. A number of those are actually in the name of my colleague Dr Duncan Webb, who is obviously an esteemed former lecturer in the legal profession, so I think that he probably takes quite a bit of pride in his work on these Supplementary Order Papers. I think that they are worthy of pride because they do offer a whole lot more clarification around the purpose, I think, and the general thrust of what it is that Simeon Brown and the National Party propose that they are trying to achieve with this increasing penalties for psychoactive substances.

There is also an SOP in the name of my colleague Kiritapu Allan, which is actually, I think—even though I myself have a number of Supplementary Order Papers in my name—probably my favourite Supplementary Order Paper posed on clause 4 because it provides for the need to take into account a number of different factors in the sentencing of individuals who are prosecuted for supply or distribution, or presumption of supply or distribution. These are the factors that Kiritapu Allan proposes should be taken into account, and I would note, as well, that I think that it’s incredibly brilliant that there are Te Reo Māori names for each of these things that must be taken into account—for example, face-to-face reconciliation between the offender and the affected person. That is obviously part and parcel of a rehabilitative, restorative justice process. Appreciation and shame in respect of wrongdoing and its impact, rehabilitation, then the likes of the hauora—the physical aspect, the spiritual aspect, the family aspect, and the psychological aspect as well—and I would note that the offender’s whānau background is important. There is “the principle that we should strive for values and practices of aroha (love and compassion), manaakitanga (support and kindness), wairuatanga (the importance of spirituality), and whanaungatanga (the value of connectedness to family and community):” and we are to take into account “any wider matters that indicate that social and cultural influences may have had an impact on the offending: … and any matters drawn to the court’s attention under section 27 of the Sentencing Act 2009:”.

I think that all of these factors are of critical importance to be considered when we are looking at sentencing people for any form of criminalisation that we’ve come up with under the so-called war on drugs, because as all of the evidence and research demonstrates, particularly with regard to this Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill as it was put forward at the select committee stage, there is absolutely no evidence that increasing penalties will have a dent with regard to affordability and access of these substances, but it will only serve to increase our prison muster.

However, one thing that I do want to commend Simeon Brown on, as far as this members’ bill goes, is the point that he has raised multiple times and which I’d like to address and ask him today, and that is: does the National Party agree to not penalising drug users?

Madam Chair, thank you for the chance to speak to clause 4 of the member’s bill, which does one simple and substantive thing. It amends the principal Act and changes the penalty from two years to eight years.

This is an extremely important issue for all communities. On Monday night, I had a meeting in my own electorate office with four principals of the local college and the local health provider, all very concerned about a sudden uplift in the use of synthetic cannabis and the effect that that is having on their communities, their students, and also, obviously, from a health perspective, the medical community in our community are extremely concerned. We have seen a spike of use of psychoactive substances but also a spike in suicides from our youth. It is an issue of extreme importance to my community, so it is an issue which has to be taken seriously.

The point that I would like to make around clause 4 is that not one of those principals and not one of those health practitioners in the room once mentioned increasing the penalties to in any way make any significant difference to the harm that it’s causing in our community—not once. They did talk about the need for more health resources in the community and more support for the schools themselves who are finding themselves having to deal with issues that they may have to see within their school-grounds. But beyond the school-grounds and the bell going off, they find it very tricky to deal with. So while Mr Brown might be trying to tackle a serious issue for some time during this debate, we have argued that this is not the way to deal with it. Simply increasing the penalty by six years, evidence has shown, is going to make little or no difference to the harm that is actually happening in our community. So while this is well-intentioned, on this side of the House we seriously question why this is coming before the House in such a manner, and whether or not Mr Brown has actually done any research to get hard evidence as to whether or not this is going to make a difference.

I will reiterate that it is having a massive effect on our communities and is putting some of the most vulnerable people in our communities—especially young people—into the position where they’re thinking of taking their lives. So this is not an issue to be sniffed at, but it is an issue that if this House is going to look at how we deal and support those communities, we look at and seriously resource things that are going to make a difference. So I would ask a question in and around clause 4 of Mr Brown: where’s your evidence that this is actually going to make a difference? That is a question that I think my community deserves to have answered, if you’re seriously going to stand in the House and say this is one of the silver bullets to deal with an increasingly troubling issue in communities.

What I think they do want to see is not just increasing the penalties. They do want to see a Government that’s taking action on mental health, they do want to see a Government that is taking action on supporting young people in our community, and they do want to see a Government that is supporting vulnerable young people in our communities, and I think that’s where the focus of this debate needs to be: making sure we’re supporting those workers in our community, whether they be inside the school or out, to make sure we’re supporting those vulnerable young people in our communities who are extremely vulnerable and looking at self-harm and suicide, and who have taken that action because of their use of psychoactive substances.

So, again, just one simple question to Mr Brown: what evidence do you have that this is actually going to make a difference? If you stand up in the Chamber and give me some evidence, I’ll take it back to those four principals at my colleges who are desperate for help for their students, because they’ve seen far too much pain over a long period of time and too much talk from politicians in this House. They want to see some serious action and serious resourcing to make sure that they can back up their commitment to looking after their students with support with a health bent, not a punishment bent—because this is all we’re doing here by lifting the penalty from two years to eight years.

Kia orana, Madam Chair, and thank you very much. I always listen to the Hon Kris Faafoi with great respect. I appreciate his thoughtful contributions, and I listened to the last one. He’s the finest Minister in the current Government and probably one of the busiest, and he’s just demonstrated that he’s also an active local constituency MP. Like him, as an electorate MP, I listen carefully to what people say to me in my electorate, as well. While I don’t for a moment question that that was the feedback he’s got, I wonder whether his colleague in front of him, the former secretary of the police union, would suggest to him that police officers in this country would articulate a very different view, because it’s certainly my understanding that many in the police would suggest that increasing the penalties—particularly for these psychoactive substances—will make a very significant difference, and that is why I’m very supportive of this particular bill.

When I spoke in the second reading of this debate, I began by asking a question which provoked an outraged reaction from the member Chlöe Swarbrick, and I’m pleased to see Miss Swarbrick in the Chamber tonight. I’m not going to repeat the question that I put because I don’t want to provoke a similar reaction, but I do just want to clarify that the point that I was trying to make—and I think it has been confirmed for me, listening to a number of the contributions in this committee stage—is that to some extent, we’ve been talking across each other in this particular debate. I have no doubt at all that for many people who are addicted to these drugs or who are exposed to them for perhaps the first or second time, this is predominantly a health issue, and I don’t have any problem with treating it as such. The point I was trying to make was that this is a bill about increasing penalties for those who manufacture and, in particular, supply the drugs, and that is why I am so strongly in support of it.

In my own community and, I think, probably in communities the length and breadth of this land, the horror is at those who peddle these pernicious drugs in such a way that they do enormous harm to vulnerable New Zealanders. That is why I do believe that there is considerable evidence—and the police would back this up—that stiffer penalties will send the right deterrent message, and that is what the bill is aiming to do.

It is not about toughening up on those who are using the drugs; it is about getting tough on those who supply the drugs. That, as I say, is where I think there has been a lot of debate at cross-purposes and talking over the top of each other, and I do want to clarify that the reason I and my colleagues on this side of the House are so strongly in support of the bill that Simeon Brown has put forward is because we absolutely endorse his view that we need to send a very clear message in the community. My colleague Matt King, the member for Northland, who’s also a former police officer, has confirmed to me that it is definitely the view of his former colleagues that this bill will be effective, that it will send the right message, and that it will help to reduce the problem that psychoactive substances are causing in our community, not least because it will actually address the illogical imbalance at the moment in the way some other drugs are treated in our criminal justice system when these drugs are actually being treated in a way that is very lenient.

So as we debate clause 4 of this bill, which is all about that key provision of increasing the penalty, I am strongly in support of that. I want to acknowledge the support of New Zealand First, who I think have listened to New Zealanders as well and who are pushing in the same direction.

I strongly commend Simeon Brown for the great work that he has done. I send my aroha and sympathy to all who are suffering from the effects of these drugs in our community, and I very much hope that the House will see fit to pass this bill to send the right message to those who are involved in this horrible trade, to try to reduce the problem—we’ll probably never be able to stamp it out altogether—that is endemic in so many communities. So I commend Simeon Brown, and I urge the committee to support this bill.

Thank you, Madam Chair. Tim Macindoe, the previous speaker, talked long and hard about sending a message, and it’s right. This bill, if passed, would send a message. It would send a message that we’ve given up and we’ve stopped caring. We both agree—and Mr Brown and I were in the Justice Committee on this matter—that this is a very significant problem, but the only message that this bill sends is to the fearsome community that they should be afraid. It doesn’t send a message that there’s something that we can actually do.

We know for a fact—and the statistics are there to be seen—that increasing penalties does not have a deterrent effect for people who are in these communities. There’s a fallacy that these offenders are smart-thinking people who make calculated choices. They’re not. By and large, they are themselves addicted to substances and often mentally ill, so they are in the thrall of the very substances that we’re trying to address.

So what we need—and as my Supplementary Order Paper 170 sets out—is to, in every decision we make, ask: how can we address the root of the problem? Rather than incarcerating someone for long periods of time, we should first ask the question: is that the right response? So the first question should be: “Well, is this wrong, is this social harm, and is this cancer that blights society best addressed by incarceration or by addressing the mental health needs of this person?”

So my Supplementary Order Paper accepts Mr Brown’s eight years, but says this: when determining the length of a sentence, the court shouldn’t automatically go through their usual tariff process, which is to start at the midway mark and look for aggravating and mitigating factors. No, the first question should be: “Does the offender need the health and mental health services?”, so that we can make sure that those person’s needs—the very things that caused this social harm—are addressed so that we break the cycle and not compound the cycle, and compounding the cycle is exactly what incarcerating people for longer periods of time does. It’s exactly what we don’t want to do in this area of the law. What we need to be addressing in respect of drug law is a situation where we don’t punish people for their own, essentially, illnesses and frailties, but we address those through the health system.

The other thing that my Supplementary Order Paper would do—again, accepting if Mr Brown manages to get this eight years through—is to look at the availability, when making a sentencing decision, of access to the required health and mental health services for the offender. So if we have a humane prison framework which can address those things, then all well and good—that might be the right place—but we know that the prison system we’ve inherited is not one that has the resources needed to do exactly that. So the place for these people is in community facilities that can address their health and mental health issues.

The signal we should be sending is not “Look out, these people are dangerous. They are harmful. We need to lock them away. We need to fence off part of our society.”—and we know for a fact that this afflicts our Māori communities particularly, so there’s an element in there that Kiritapu Allan’s Supplementary Order Paper 162 looks at. We need to be able to say, “No, these people remain part of our community even if they are incarcerated.” We recognise they’re coming back into our community, and we want them to be useful, healthy members of our society. So when we make a sentencing decision in any drugs area but especially in the particularly pernicious psychoactive substances, we need to look at the offender’s needs for health and mental health, we need to look at the availability of those services, and we need to make sure we place that person in the area that’s best for them, best for the community, and best for society. That is the signal we need to send.

Thank you, Madam Chair. I just want to address the points made by the Hon Tim Macindoe with regard to the fact that we seem to be speaking at cross-purposes a lot of the time when we do address this issue. I also wanted to speak to his point around how I got quite elevated the last time that we were debating this, and I wanted to acknowledge that, because I did. I didn’t intend to come into Parliament to be an advocate for drug law reform. I managed to fall down this rabbit-hole by virtue of investigating and looking at the evidence—actually, primarily off the back of medicinal cannabis, and falling further and further into the research—of the injustices and inequities that are perpetuated by the war on drugs.

I believe that the sparring match that occurred, the verbal sparring match between myself and the Hon Tim Macindoe, was largely around his—and I don’t mean to, but for lack of a better term, I put this out there—accusation that I didn’t care about the loss of life. I understand that that may not have been his intention, but that was the way that I had perceived what he was stating, and the reason that I got so elevated in response is because I take this deeply seriously. I have had numerous debates with people who are at the front lines and at the coalface of dealing with this crisis—notably, a number of people in the police service, those who are in Housing First, and those who provide addiction mental health support services—and all of them are saying that something has to be done differently.

I work with Lifewise, which is one of the two youth housing providers in Auckland, for about three hours every Monday. They have raised that whilst the coroner’s figures approximate that about 50-odd people have died as a result of consuming synthetic cannabis in the past year, those figures are probably higher because, as the coroner’s reports demonstrate, the demographics who are largely consuming these synthetics are homeless and jobless and don’t have people to care for them.

To the Hon Tim Macindoe’s point around the police and how this was something that the police may actually want, I just wanted to refer him to page five of the Justice Committee’s report, because the New Zealand Police Association did submit on this legislation, and they asked for a difference or a change in approach. I’ll quote from the select committee report stating, “The New Zealand Police Association argued that substance use and crime are often linked, due to the high cost of a drug habit, fed by a criminal marketplace. While the association supports the intent to target suppliers, it argues that the bill is not supported by evidence that increasing penalties will deter them.” That’s the Police Association. They also stated that “The association supports an holistic approach to [dealing with] the problem.”

The police themselves, who are at the front lines, are saying that increasing penalties will not deter suppliers, and all of the evidence and research that we have accumulated from jurisdictions across the world for decades has proved that. We had all UN member States in 1998 signing up to the war on drugs. We said that if we continued to ratchet up penalties, we would have a drug-free world by 2008. But, instead, by virtue of cracking down on all people involved in the trade, we have ended up with a proliferation of harm. Substances have got more dangerous, and that’s actually what we saw and what Kevin Hague, a former Green MP, warned of when we took away the temporary licences that were put in the first version of the Psychoactive Substances Act 2013 by way of a 2014 amendment in response, again, to a moral panic. If we want to reduce harm, we have to take the issue out of the darkness and put it in the light, and we have to—we absolutely have to—treat drugs as a health issue. We have to walk the talk on that.

To Tim Macindoe’s point about how we seem to be speaking at cross-purposes, I think that’s something we can all agree on. I think, fundamentally, all of us in this House actually agree on the point that we do not want to be criminalising the people who are addicted to these substances. But, unfortunately, at present, this is what this piece of legislation does, because it does not recognise nor demarcate that often the people who end up using these substances, because they become addicted, end up actually getting involved in what can otherwise be termed a pyramid scheme. They become suppliers themselves to help feed their own habit, and, in turn, they end up cutting substances and making them more dangerous.

💬 Nicola Willis: No, it doesn’t.

CHLÖE SWARBRICK: Nicola Willis, that is what all of the evidence shows, and I can send that through to you. I would love for you to speak to the evidence, to any evidence at all that increasing penalties—I would like to hear from either the member in charge of the bill, Simeon Brown, or any National Party members that increasing penalties will have any impact on drug harm, because all of the evidence demonstrates the contrary.

So that brings me to the three Supplementary Order Papers in my name. I think that they’re incredibly valuable for sake of debate on particularly this point about reducing drug harm, which is this proposed premise of the piece of legislation that the member Simeon Brown has brought before us today. The first, Supplementary Order Paper 159, I would like to think that the National Party would support, given the position that they have put forward that they don’t want to criminalise users, because this amendment removes the criminal offence of possession of personal psychoactive substances by deleting section 71. I would love to hear from the member in charge, in follow-up to the question that I earlier posed: if the member does support a genuine health-based approach for people who are using and addicted to these substances, then will the member support Supplementary Order Paper 159 in my name?

The other two Supplementary Order Papers 160 and 161 are kind of two sides of the same coin. Supplementary Order Paper 160 changes clause 4 to provide that the sentence is a maximum of eight years imprisonment only if an individual has been convicted also of illegal manufacture and importation, because I believe that’s the heart of what the member and the National Party are attempting to get to with this legislation. The very name and title of the legislation as it was put forward is Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill. The arguments that are being put forward are around targeting the supply chain. So surely my Supplementary Order Paper 160 should be something that is genuinely considered by the member and by the National Party votes.

So on the flip side of that is Supplementary Order Paper 161, also in my name, and it requires the court to consider a lack of involvement in manufacture or importation of psychoactive substances as a mitigating factor for the purposes of sentencing. That’s something I think it’s really important to drive home and to make clear to those who are listening in the gallery tonight or, indeed, at home, potentially on Parliament TV or otherwise. Most people are unaware of how the sentencing process works, and that is at the core of this member’s bill around increasing the penalty from two years to eight years. The member in charge of this bill has progressed the argument multiple times that this simply allows judges or courts more discretion when they are looking at sentencing somebody. What we are providing for in these Supplementary Order Papers are a number of named, explicit, mitigating, or aggravating factors in sentencing somebody for a crime.

So to make it clear to those who are listening, the sentencing process is the first step when you go before a court. You are found guilty or not guilty. Sentencing is a process that occurs after that, and it’s actually how we end up with a whole bunch of strange oddities in our law—for example, the way that two people can end up being found guilty of the same crime, but one person can end up with home detention and another can end up going to prison. So those sentencing factors come in the form of aggravating and mitigating factors, and I touched on a number of those mitigating factors in Supplementary Order Paper 162 in the name of Kiritapu Allan in my earlier contribution. These mitigating factors around considering whether somebody has been involved in the manufacture or importation of these psychoactive substances, I think, really go to the heart of what it is that Simeon Brown, the member in charge of this legislation, is progressing tonight.

So if I can summarise, the questions that I have—primarily the first question that I want answered by the member in charge, Simeon Brown, are, firstly, does the National Party support treating those who use or are addicted to drugs with a therapeutic approach? If so, will the member consider supporting Supplementary Order Paper 159 in my name? But I would really like to have that first part of the question answered. The second is: will the member consider Supplementary Order Papers 160 and 161?

Thank you, Madam Chair. It’s an absolute pleasure to follow on from Chlöe Swarbrick in terms of my Supplementary Order Paper 175, which also takes a health-based approach to this issue. What it proposes is that a judge can adjourn the proceedings at any time after someone’s been convicted of an offence but before imposing a sentence to find more information about the opportunities for rehabilitation, and that’s either in custody or in the community, and also where the offender is in need of health—including mental health—services to look at whether those services are best delivered in custody or in the community.

I actually agree with the intent of this bill, which is to reduce the huge impact that synthetic drugs are having in our community, but if we’re going to be doing something about it and taking this whole process through Parliament, we’ve actually got to make sure that any intervention we put in place actually works, and the problem we’ve got here is one where you’ve got somebody who may be a dealer but simultaneously is actually using synthetic drugs and then has become addicted to those drugs and then has become involved in the supply side in order to fund their habit. We’re not going to have any impact by just increasing penalties if you’re dealing with an underlying addiction.

I just want to talk about the story of Emma. Her story appeared in the New Zealand Herald in September last year. Emma—I don’t think it’s her real name—basically said that when the whole synthetics issue started, she hated everything about it. She said she was very anti the drug and would never use it. Then, suddenly, she found that her and her partner were using up to an ounce a day. She said, “The first time I tried it, I didn’t actually like it.”, but then, over time—she wasn’t actually aware when the addiction actually started. But once it had started and kicked in, it was really, really hard to stop.

So in a short time, Emma and her partner were addicted and were spending about a thousand dollars a week on their combined habit. To fund that, they started selling synthetics, because she said they had to find some way of paying for their addiction. So within a month, her partner went from just using it to running a business 24 hours a day, seven days a week. Basically, Emma decided that she couldn’t face that addiction any longer and she went cold turkey and stopped, but it took her partner another eight months to actually stop using synthetics.

I think that at the time this story was written in the New Zealand Herald, Emma had been free of drugs for about two years, but she said that every day she lived with that guilt about what she’d put into her community. So I think in cases like this, what we’re dealing with is actually an underlying addiction. I don’t think that tougher penalties are going to turn that situation around. So this is why we need to take that health-based approach that Chlöe was speaking about—

CHAIRPERSON (Poto Williams): Order! The member’s proper name, thank you.

—and what it does is it allows the judge to consider, where an offender is in need of health or mental health services, what options are available to that offender and whether they’re best served in custody or the community. So I really encourage the member in charge of this bill to consider that health-based approach as we move forward. Thank you.

I rise to take a shortish call, really, to speak to the Supplementary Order Paper (SOP) in my name, SOP 167. The reason that I want to talk about this particular Supplementary Order Paper is that it follows on from some of what Dr Webb and Miss Swarbrick and Dr Craig have been talking about—the research, the evidence, what we actually really ought to be doing in the field of synthetic drugs or psychoactive substances—and it fits with a compassionate response to treating addiction as a health issue, not as a criminal issue.

The particular Supplementary Order Paper recognises that people who use drugs often supply drugs on the side, as a minor side matter, and that very often the drugs that are found on a person are, in fact, for the person’s personal use. The worry is that if someone is found with a sufficient quantity of drugs but they’re for personal use, they might be characterised as holding those drugs for the purpose of supply—

Chlöe Swarbrick: It’s a presumption.

That’s right—that’s right. And under Mr Brown’s proposed bill, that person, even though the drugs were there for the person’s own personal use, would nevertheless be charged with supply and end up with an eight-year penalty. That is disproportionate.

Leaving aside worries about two years versus eight years and the like, this particular Supplementary Order Paper proposes that “For the purposes of subsection (1)(c),”—of section 70 of the principal Act—“where a person is an individual who frequently uses a psychoactive substance, the court should presume that any psychoactive substances possessed by the person are intended for personal use only.” So we start by presuming that the drugs are for the person’s own use. Now, of course, that can be defeated. It can be shown that the drugs are, in actual fact, for commercial supply. It can be shown that the person is intending to make money off them by preying on vulnerable people by selling drugs themselves, but it also asks us to remember that people who use and deal drugs at the same time are themselves vulnerable users. So we want to start with that presumption—that the person whom the drugs are found on is actually a user themselves, that because they are a user they are a vulnerable person, and that they are entitled to some consideration in respect of that.

So what it means is that if you show that the psychoactive substances are intended for personal use only, then I believe that under the Act as it stands, the penalty that would apply would be a $200 fine. That’s absolutely consistent with a lot of what we do elsewhere in the laws in this country where we have something that sits between a slap on the wrist with a wet bus ticket and incarceration, which is a severe penalty. We actually do use fines, substantially, in order to kind of reach that space where a person is not engaged in criminal activity, or is not engaged in anything that demands a heavy penalty but nevertheless perhaps needs a reprimand of some sort. So by starting with the presumption that a person is a user and, therefore, a vulnerable person, we just start at the level of an infringement. That presumption can be defeated, and in that case the penalties for supply would stand if the person was convicted. That does seem to be an appropriate way to sort of wend our way through the difficulties of this matter.

So I would very much appreciate it if Mr Brown would address this particular issue and address the issues that have been raised by people who are expert in this area: Dr Webb, Dr Craig, and Miss Swarbrick.

Thank you, Madam Chair. I would just like to start by congratulating the member in the chair, Simeon Brown, for attempting to do something about this. We are all, as electorate MPs, faced every day with people who come into our office and we want to do something about it. Now, we like to send them away with a solution, but solutions, as we learn—a quick fix; “just add water and stir” - type solutions—are not generally those that are available to us because, if they were that easy, then they wouldn’t have ended up in our office so often.

Coming to clause 4 of this bill, the sentencing option, so often in the history of law enforcement and particularly those who make the laws, we look for that easy fix—something that is going to look good, something we’re going to feel good about, and something that we can probably reassure those who come to us with problems with. However, one advantage of standing here with a little grey hair, having seen a little bit in my 40 years in the police—I was a police officer in the 1970s, when we had a major heroin problem in this country. We had heroin deaths. The signs or the symptoms of a heroin problem are generally overdose deaths—that’s how you really know you’ve got a problem. There will be crime, there’ll be others associated, but really, ultimately, it’s those who die because of overdose.

In the 1970s, when I was a young police officer in this very town, we had major problems with heroin overdoses, and that was happening around the country. I wasn’t really aware of the political environment at that time, but the debate was something of the same outcry, and the sentence for heroin dealing went to life imprisonment. It still is on the books now as life imprisonment, and it made no difference at all. As a result of that, the deaths continued. In fact, in Wellington, we had a bigger problem, because in Auckland, there was a homicide that resulted in a lot of pressure going on heroin dealers, not around the sentencing but around trying to solve the homicide. So Wellington became full of heroin addicts and, of course, dealers, and we ended up with a raft of deaths similar to where we are today. That life sentence made no difference whatsoever.

What actually did make a difference was when the Mr Asia syndicate collapsed, because they had become so effective at bringing heroin into New Zealand—so good at what they did—that they’d squeezed out all the opposition. So when they fell apart in the late 1970s and early 1980s, all of a sudden there was no heroin in New Zealand. New Zealand heroin addicts jumped on a plane and went to Australia. That is when we got a really bad name over there. So while I may sound like I’m drifting a little from clause 4, this is all about the sentencing and the ineffectiveness of the sentencing. I was anticipating a rebuke, Madam Chair, but I’m pleased to see that that’s not coming my way—but back to the subject.

In that case—and I was probably, it’s fair to say, a much younger man in those days and didn’t quite have the broad outline—it’s when you get to the stage when you sit and reflect on those things you’ve learnt that I know that, again, going back to this bill and what it is attempting to fix, it won’t actually fix anything. I’ve sat on the select committee, and we’re well aware of the terrible stories out there. I’ve had family members who have been involved in this. Interestingly, in the history of the sentencing when the problem was at its worst, in about 2011-12, that first piece of legislation went through. It did actually fix the problem in the short term, because the suppliers, of course, were legitimate suppliers, and when they were taken out of the market, there was actually no one who filled the gap at that time. There’s a history of how we got to where we are that’s for another time perhaps. It does not really come within clause 4 of this bill.

Can I just encourage the member that while he will be doing this for the right reason, and certainly he will have had people come into his office, this won’t fix anything, and the worst thing about it is that we will end up thinking, “Well, we’ve done that, fixed that, let’s go on to the next problem.” Unfortunately, it will not solve anything. It will stop us from really addressing the issue—those issues that my colleagues have talked about and the fact of why people end up using these substances in the first place. It is something that, really, generally affects the lower socioeconomic part of New Zealand—those who probably, for the rest of their lives, will not be in great shape. So using these substances is just another part of that. Thank you, Madam Chair.

Thank you, Madam Chair. I too rise to make a shortish contribution on this bill, but the place I want to start, I guess, is that no member in this House denies the fact that there’s a huge amount of harm in New Zealand as a result of these psychoactive substances. What we on this side of the House are arguing is that this particular bill is not going to change things. I can’t remember who it was who said that the definition of madness is doing the same thing over and over again and expecting a different result—I think it might have been Einstein—but that’s exactly what we’re doing here. Internationally, if you look at the trends, if you look at the evidence, Governments are moving away from this punitive approach and towards a health approach for a reason, because that’s what’s working—not this.

I want to echo the comments made by the member Chlöe Swarbrick, who said, “Show us the evidence.” Where is that compelling evidence that increasing sentencing alone as an ad hoc measure is actually going to fix the problem? The problem—

Tim van de Molen: Where’s the evidence that it doesn’t?

It’s not compelling. There is no compelling evidence, because then, if you look at the fact that this is about locking people up for longer and throwing away the key, potentially—how has that helped? If that were the answer to all our problems when it comes to offending, then the fact that our incarceration rate in New Zealand has been sky high should have actually fixed the problem, but it hasn’t, has it? So that’s not the key. There is so much more that needs to happen.

Actually, back on that point about locking people with addictions up—because that’s exactly what this bill is going to extend—we have 62 percent of our prisoners in New Zealand who have either a mental health issue or a substance abuse issue, and 20 percent who have both. What this bill does, and going back again to a point that Chlöe Swarbrick made as well—and this takes me back actually to a submission that was made to the Justice Committee. I was on that select committee for a portion of time while this bill was being considered by the committee. We had a submitter who came to us and told us about the work that they do on the streets of South Auckland, where they’ve seen issues of people who have been supplying psychoactive substances as well. This is cheap, nasty stuff. These are potent drugs that are made cheaply. They’re cheap to manufacture. Those who supply them are not supplying them to become millionaires; most of them are supplying and selling to feed an addiction that they have. So that’s the point that members opposite don’t seem to get.

When the Hon Tim Macindoe stood up and said that he’s strongly in support of this bill because it affects those who manufacture, sell, and supply psychoactive substances, with great respect I say that he is missing the point, because the point is that those who are selling and supplying are also those who are affected by the addiction issues here. So, by then putting them into prison when we have a huge percentage of prisoners already with mental health issues and substance abuse issues, how is that going to help?

That takes me to Supplementary Order Paper 168 in my name, which would replace clause 4 and amend it to add new clause 4(a)(ii), which says, “when sentencing under subparagraph (i), the court must have particular regard to the health, including mental health, of the offender:”. This would actually provide a bit of sentencing guidance, as it were, to judges by recognising that in many cases, a higher penalty will not serve any useful purpose, because these people are already addicted and the reason they’re selling is to feed the addiction. Many have mental health issues as well, and those are the underlying causes that are driving offending when it comes to psychoactive substances, which we must address if we are to make any meaningful change in reducing drug harm in New Zealand.

I want to emphasise once again that simply increasing the sentence from two years to eight years is an arbitrary measure that’s just plucked out with no compelling evidence. I don’t believe it’s going to solve this issue. I think it’s incredibly short-sighted and, therefore, I will not support the bill. Thank you.

Thank you, Madam Chair. Kia orana. I want to put to the member in the chair, Simeon Brown, whether he has really, seriously considered the Māori dimension of his bill, because we know that in our prison population, Māori are overrepresented—horrendously overrepresented—in our mental health statistics, they’re overrepresented; and in drug addiction and affliction, they are overrepresented as well.

Kiritapu Allan has put in an excellent Supplementary Order Paper (SOP), and it draws on a recent decision of the High Court in Solicitor-General v Heta. That is a very important decision, and I would ask the member whether he’s had a chance to perhaps have a look at that or similar materials, because what it does is it lays bare the grievous effects that not all but many Māori have had through the, essentially, post-colonial lives that they’re living, that in fact they have never had an opportunity to flourish in the way that many others—and I suspect the member and I are amongst those others. That is a sentencing decision of Heta, and Justice Whata, using tools given in the Sentencing Act, looks in great detail at the broad spectrum of the life that Heta, who was a woman charged with assault and grievous bodily harm, had gone through.

One of the things I would ask is whether the member has carefully thought about the actual circumstances of the people who he is proposing to incarcerate for this extended period of time, and the fact that they are tangata whenua—they are our Treaty partners—in many cases, and that here we are doing something which I think really breaches the obligation of the Crown to care for, to respect, and to give rangatiratanga to our Treaty partners. I would absolutely ask him to look very carefully at Kiritapu Allan’s Supplementary Order Paper, because what it does—and there are a number of aspects to it. One is in respect of the offending and the personal circumstances of the offender, and their cultural setting is something that Heta says should be taken into account. So that is the personal circumstances question. Then there is the question of restorative justice, and Heta makes it clear that a restorative justice process and one that, perhaps, is in an appropriate cultural setting will also be appropriate, but also sets out the wairua, the spiritual dimension of the wrongdoing, and the hauora, the health dimension—it puts it in a Māori setting.

What this one-line amendment to the Psychoactive Substances Act does is it entirely ignores those very important factors. So I really invite the member to stand and answer the question: what will this do in terms of the Crown’s obligation to Māori? Does he accept that the people who will be most adversely affected by this amendment will be Treaty partners, and I’d ask him, what steps does he think are consistent with the Treaty that this bill does? Will he support Kiritapu Allan’s bill, which—

💬 Hon Ruth Dyson: SOP.

—SOP—accepts Mr Brown’s eight years in there but also says, “Look at all of these other matters.” Te taha wairua, te taha whānau—the family aspect. What family setting do the offenders come from? What are their relationships with iwi and hapū? Te taha hinengaro—the psychological aspect: what is the spiritual and psychological setting in which the offending took account?

So, Mr Brown, what are you doing here? Have you taken these important matters into account, because I think you are harming an important relationship.

I move, That the question be now put.

Madam Chair, thank you. I’d just like to continue on the theme that I explored in my last five minutes on my feet—

CHAIRPERSON (Poto Williams): As long as it’s not repetitious, that would be fine.

—in relation to clause 4. In relation to that, I would like to ask the member in the chair, Simeon Brown, if he has looked at the effect of moving the sentencing for dealing in heroin to life imprisonment in the 1970s and seen if there’s any evidence that it had any effect at all on the use of, price, and availability of heroin in New Zealand at that time, because that moves us on to the whole sentencing regime.

I have been in the police for some time, and unlike some of my colleagues, I see a role—an important role—for imprisonment. I see an important role for smart imprisonment. When the Sensible Sentencing Trust was formed, I had some dealings with them, and I remarked to them at the time—I said, “You’ve named yourselves very well: ‘Sensible Sentencing’ ”. Unfortunately, what happened with the Sensible Sentencing Trust is they became the “Longer Sentencing Trust”. All that they ever talked about was longer sentences, and they lost a really important opportunity to be an important part of that sentencing debate.

Smarter sentencing really means that short, sharp sentences are often more effective because, particularly when it comes to drugs and particularly drug dealing, it is the disruptive effect of removing someone from their environment. They will undoubtedly owe a lot of people money, they’ll undoubtedly be owed a lot of money, and removing them from their environment means that all of a sudden, that whole environment, that whole drug-dealing enterprise they’re in, is disrupted. That is the effective way to use prisons.

In New York, following the changes that they made around the well-known or so-called broken windows theory, the effects were quite dramatic on the streets of New York. I was lucky enough to spend time in New York to look at the sentencing, and I compare this with clause 4 of this bill—

CHAIRPERSON (Poto Williams): It’d be good if you could come to the point.

I looked at the sentencing there, and what they found was that, actually, their prisons were full. They went to the prisons and said, “Let them out. We don’t care. Actually catching them is more important.” It is more important—the fact of jail. It is more important, when we catch these people committing crime, that we’re able to send them to prison—didn’t matter how long; send them out the top end, and we will catch you. If they recycle in, we’ll catch them again. That was what had the biggest effect. It’s a well-known—and, again, don’t rely on my experience; this is well through the research. It is the fear of getting caught or, more importantly, the belief you’ll get caught which is more important than the sentence.

So I go back to clause 4 of this bill, which is around merely increasing the sentence. What that does and will do, ultimately, is prevent the system from using something that can actually be a very effective tool in preventing the dealing, in particular, and disrupting the whole flow of drugs, because disruption’s about getting people off. Sending them to jail for eight years actually risks doing the very thing that we don’t want to do. It means the prisons do become more full. It means that those that should be coming at the front end—it makes it more difficult to do that. We end up having to build more prisons and we lose the real effective part of what sentencing can be.

That’s not to say there are not people, of course, that should be in prison and should never see the light of day, and I think we’ve got some effective methods in place to make sure that happens. But I would suggest that merely looking to solve any problem by making the sentence longer is to ignore so many other possibilities that can be effective. In doing so, and going back to clause 4 of this bill—and it is that part of a bill that is most significant which is being most heavily debated tonight. By doing that, by seeing that as some sort of panacea of all ills, the thing that is going to fix things overnight—just add water and stir—then that will deny us the opportunity to use sentencing for what it should be used for, which is to disrupt criminal activity and, in this case, to decrease the chances of those vulnerable, mostly youth getting hold of this substance in the first place. Thank you, Madam Chair.

Before I call—

Chlöe Swarbrick: E Te Māngai.

CHAIRPERSON (Poto Williams): Actually, I just have to check how many calls the member has taken. Remember, this is clause 4 with the debate continued, so we just have to check that. However—would you just resume your seat—I just want to send a very clear message to the committee: repeating the same sentence several ways within the same call does not make that an effective call. [Interruption] This will be heard in silence. It might cause the members some amusement, but this is very serious. We want to hear new debates, new arguments. This particular clause has been debated for some time now, and I have to sit and listen to all of the debates and all of the arguments. So I’m looking for fresh material or I will sit members down.

I am happy to progress a new argument.

CHAIRPERSON (Poto Williams): And this is your final—

CHLÖE SWARBRICK: This is my final call. Thank you, Madam Chair.

The one question that still remains in my mind, given the numerous questions that I have put before the member and, indeed, before members of the National Party, who have taken no qualms with heckling throughout the contributions of other members, or laughing or scoffing, is: why have National Party members or the member in charge not risen to respond to any of the deeply serious questions that have been put around the impact and the evidence that clause 4 will have on reducing drug harm and, indeed, in reducing the harm proliferated in our communities by way of synthetics? Does the National Party agree with treating drug use and addiction as a health issue? And where is the evidence that the proposition, or the supposed solution, contained within clause 4—to increase penalties—will make any dent whatsoever on reducing the harm of synthetic substances?

I want to ask the member: who believes that what is being proposed in clause 4 will make a difference? Who believes that what is being progressed in clause 4 will make a difference, because it was put earlier by the Hon Tim Macindoe that the police believe that it will make a difference. As I raised in the select committee submission from the New Zealand Police Association, the police in this country do not believe that this will make a difference—that solely increasing penalties will have any impact on reducing drug harm. Academics don’t believe that increasing penalties will make a dent in reducing drug harm. Addiction services and specialists don’t believe that increasing penalties, as proposed in clause 4 of National Party member Simeon Brown’s bill, will make any impact in reducing drug harm. Not even those who are former addicts or who have engaged in harmful drug behaviour believe that this will have an impact in reducing drug harm.

So if it’s not police, if it is not academics, if it is not addiction and drug-abuse specialists, and if it is not even people who have been formerly engaged in the criminal black market who believe that this will have any impact in reducing drug crime, who believes that it will reduce drug harm and the harm proliferated in communities throughout Aotearoa New Zealand by synthetics? The remaining answer is politicians—politicians who are giving false hope to New Zealanders around this country that this represents any form of solution—because the evidence and the research backs up that this will not have any impact as far as affordability or access to the substances go. Greg O’Connor, former chair of the New Zealand Police Association, spoke of his front-line experience with regards to heroin and reclassifying that—

CHAIRPERSON (Poto Williams): Yes, and we are straying into repetition.

CHLÖE SWARBRICK: I want to speak, Madam Chair, to the debate that I’ve raised with regards to reclassification of methamphetamine, because that has been correlated in debates in the public to the issue that we have with regards to synthetics and why we need to increase penalties. When we increased penalties for methamphetamine to life imprisonment, we didn’t see a reduction in harm and, in fact, we didn’t actually see a reduction in usage, because Ministry of Health data demonstrates that usage data fluctuated to actually increase.

So, if it is not police, if it is not academics, and if it is not addiction specialists, I put it to the member to be bold and brave enough to stand up and speak to any shred of evidence that he has that this will do anything to reduce harm. Does he have any evidence at all that solely increasing penalties will save lives, because it is not the police, it is not addiction specialists, it is not those who are at the front lines dealing with this issue at the coalface, and I am so concerned that what this represents is false hope.

Sometimes when these bills come to the committee, we ask members in the chair questions, and because none of the questions from this side of the Chamber have been answered, I think we will try in vain to ask a couple more.

The Hon Tim Macindoe, in an earlier contribution after I spoke, asked me what my local police might think about this issue, and I think that’s a fair enough question. So, about a month ago, I spent an afternoon and an evening with our local police in an incident car, just to get an idea of what they were dealing with and how much time and influence synthetic cannabis has on a daily shift.

The question that I would like to put to Mr Brown is: if you think that clause 4 changing the sentencing from two years to eight years is going to change the thought pattern and the psychology of those dealing synthetic cannabis, when was the last time you got any feedback from people who are selling synthetic cannabis? On that afternoon and evening that I spent with my local police, we happened by chance to run into some locals who I think the local police considered to be heavy in the trade, I should say. We managed to spend a little bit of time talking to them, and my message to Mr Brown, in a very simple sense, is I don’t think they’ll care that the sentence is going to increase from two to eight years.

In their calculation of when they are dealing the drugs, the sentence of getting caught doesn’t really factor high in their motivation for selling the drugs. I’ll tell you what does: profits do. But also what rates higher in their calculation, I’m assuming, is whether or not they might get caught. In that afternoon that I spent with police, when we ran into them, they looked pretty sheepish about their interaction with the local constabulary. They were worried about getting caught. They knew that they were being monitored, but I would hazard a guess, from the type of conversation that I witnessed and the interaction, that they couldn’t give two hoots if this Parliament increased the sentence from two years to eight years, and that is the reality of the piece of legislation that is before us.

I think Mr Brown may be introducing this with good intentions, hoping that the people who might get caught might change their thought process to say “Well, Simeon Brown has changed the sentence from two years to eight years, so I’m not going to deal drugs or synthetic cannabis any more.”, and I would put to that member that that would be some wishful thinking, unfortunately. But I think that’s the reality of the thought process and the psychology of the people that are dealing synthetic cannabis. What they do need at the front line, as my friend who spent decades on the front line said, is more enforcement and some confidence in the eyes of the public that if they are dealing synthetic cannabis, they’re going to get caught.

To the earlier contribution that I made where I spoke to some local principals, we really care about the people who are being victimised in all of this: those people who are suffering mental health and who are suffering at the hands of this drug. You’ve got to deal with this issue from both ends, but increasing the sentence—I’m sorry, Mr Brown—I don’t think will make the foggiest difference to those who are selling the drugs in our communities.

So to Mr Macindoe, I think it was a good question to ask, as to what our police think, and going out on the front line and actually interacting with some of these people who we think are dealing in these drugs—this piece of legislation won’t make one iota of difference. Well-intentioned as it may be, the reality is this will not enter the thought process of those people who are dealing these drugs. If you want to get real about tackling them, then I think some of the actions that we’re taking by increasing the numbers of police on the front line are going to make a difference.

I think Mr Brown knows deep down that if we pass this legislation—and I’m not sure if it will—it won’t make any difference whatsoever. Other measures need to be taken to make sure we crack down on the dealing. I think a lot of the debate in and around this piece of legislation has focused on making sure we have sufficient support for those vulnerable people in our community who are being seriously harmed by synthetic cannabis. Nice try, Mr Brown, but I don’t think it’s going to make any difference.

Thank you, Madam Chair, for an opportunity take a call on this, the committee stage on clause 4. I would like to note that this is the third evening we have been debating this in the committee stage and that I have already taken calls on this clause in previous evenings.

I would like to remind the committee that this bill is about targeting suppliers, manufacturers, and dealers of synthetic drugs, and that a number of the Supplementary Order Papers try to seek to make significant changes to what would be the Sentencing Act. I would ask members whether those changes that they seek to make represent their new Government policy in regards to the justice reforms. I’d also like to point the committee to the sentencing guidelines from Justice Brewer of the High Court, who has already very clearly outlined clear guidelines around how those who are convicted of supplying synthetic drugs should be treated, and that it depends on the amount of drugs, the circumstances of the individual, whether there is an intent to make a profit, and whether the supply is of a size which is on a commercial scale. So there’s a range of different factors which have already been provided by the High Court in their sentencing notes and their guidelines from Justice Brewer, which I would encourage members to read in terms of ensuring that they know that the courts already take those factors into account.

I guess the purpose of this bill is to ensure that we are targeting the suppliers and dealers and manufacturers of this drug. Currently, if you are found guilty of supplying synthetic drugs, the maximum penalty is two years in jail. If you’re supplying cannabis, it’s eight years in jail. There is a complete mismatch here in our legislation. This bill seeks to address that, to give powers to our law enforcement agencies to target those who are making money from people’s misery and address the significant harm caused by these drugs. Thank you.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 23 in the name of Darroch Ball to clause 4 be agreed to.

Dr Duncan Webb’s tabled amendment replacing “8 years” with “2 years” and with special direction to the court to impose rehabilitative and reintegrative conditions on any sentences is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendment set out on Supplementary Order Paper 160 in the name of Chlöe Swarbrick to clause 4 be agreed to.

Kiritapu Allan’s amendment replacing clause 4, set out on Supplementary Order Paper 162, is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendment set out on Supplementary Order Paper 167 in the name of Dr Deborah Russell to clause 4 be agreed to.

Priyanca Radhakrishnan’s amendment replacing clause 4, set out on Supplementary Order Paper 168, is out of order as being inconsistent with a previous decision of the committee. Greg O’Connor’s amendment replacing clause 4, set out on Supplementary Order Paper 169, is out of order as being inconsistent with a previous decision of the committee. Dr Duncan Webb’s amendment to replace clause 4 to require the court to have regard to health and mental health services, set out on Supplementary Order Paper 170, is out of order as being inconsistent with a previous decision of the committee. Dr Duncan Webb’s amendment to replace clause 4 to require the court to consider any non-custodial rehabilitation plan, set out on Supplementary Order Paper 174, is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendment set out on Supplementary Order Paper 175 in the name of Dr Liz Craig to clause 4 be agreed to.