Misuse of Drugs Amendment Bill

I move, That the Misuse of Drugs Amendment Bill be now read a second time.

I want to thank everybody who has made a submission on this bill, including those who came to speak to the Health Committee in person. I also want to thank the members of the Health Committee for their thorough consideration of the bill. The Health Committee has recommended that the bill progress with two changes.

I want to start with an overview of the bill. It will do three important things. The first is that it will classify AMB-FUBINACA and 5F-ADB as class A drugs. The second is that it will reaffirm the existing police discretion for personal possession and use drug offences, and the third is that it will enable temporary class drug orders to be issued to better control emerging and potentially harmful substances. These changes are being introduced to address the harm caused by drug use. They align with the Government’s intent to treat drug use as a health issue. The changes will be supported by an increase in health and social services for users and will allow the police to focus enforcement efforts on suppliers and manufacturers of these harmful and dangerous drugs.

I want to now acknowledge some comments from submitters on the bill across those three areas that I mentioned at the outset. So, firstly, on the classification of AMB-FUBINACA and 5F-ADB, why are we doing this? The use of synthetic drugs is a major public health problem. Since June 2017, there have been a total of 50 to 55 deaths provisionally linked to the use of these two dangerous synthetic drugs: 5F-ADB and AMB-FUBINACA.

The bill will classify these two drugs as class A drugs to reflect the high risk of harm from these drugs, and that was aligned with the recommendation of the Expert Advisory Committee on Drugs. This classification will give the police and customs the search and seizure powers that they will need to be able to better disrupt supply and reduce the availability of these drugs to the people who use them. I want to encourage the police to use those powers to go after those who are manufacturing and supplying these drugs.

Most submitters who commented on this provision supported the classification. There were a number of submitters, though, who were concerned about the impact of this change on users. Some were concerned that users would be put at risk of a criminal prosecution, and that, historically, a classification has not reduced use or harm. I do acknowledge the submitters’ concerns. However, these drugs have a high risk of harm. The new classification will provide police with greater powers to target the suppliers, while the discretion will allow the police to consider whether a health approach is appropriate for users or not, and they need to weigh these things up carefully.

The second issue that I want to move on to is the reaffirmation of the existing police discretion and the submissions made to the committee that relate to that. The bill specifies that when considering whether a prosecution is required in the public interest for drug use and possession, consideration should be given to whether a therapeutic approach would be more beneficial. Now, police already use this discretion on a daily basis across a range of matters, including when deciding whether to prosecute for personal possession and use drug offences. The bill affirms the current police approach, which is consistent with the current operational policy and, indeed, is supported by the police. The bill also makes specific reference to considering whether a health approach is beneficial, strengthening the Government’s health-based approach.

Many submitters recommended that extra resources be made available to the police to implement the change, including for police treatment, for treatment facilities, and for health services to deal with any consequent referrals. I agree that a health-based approach must have sufficient services and supports in place to implement these changes, and that’s why, of course, the Government invested $1.9 billion in its Budget in mental health and addictions, of which—

💬 Angie Warren-Clark: How much?

$1.9 billion in mental health and addictions. That includes an investment of $200 million focused on new mental health and addiction facilities across the country, recognising the need to create therapeutic environments; $213 million in this Budget for operational expenses directed at the district health boards to ensure that the specialist services delivered to mental health and addiction, to folks wrestling with those challenges, are better resourced; and, specifically, beyond that, $44 million over four years to strengthen specialist drug addiction services.

Now, police are working with health officials to develop a referral pathway, and the Police Commissioner will issue tailored guidance to front-line officers on how they apply their discretion for these offences. That’ll help police officers to assess when it is in the public interest to prosecute and when it is not in the public interest to prosecute on a matter of drug use, and whether it is, indeed, where someone has crossed the line. If a decision is made not to prosecute, the guidance will indicate other options, such as pre-charge warnings and connections to health services for assessment, triage, and referral. Now, some submitters were concerned that the police would use this discretion in an unequal way, and particularly for Māori. Now, what I would say is that police have been taking steps towards addressing inequities, with a focus on unbiased decision-making. For example, police are rolling out a programme to directly address unconscious bias for all levels of the organisations.

The third area I wanted to talk about submissions on was on the temporary class drug orders. The bill itself enables temporary class drug orders to be issued by the Minister for emerging and potentially harmful substances—to control them very promptly, recognising that the formulation of these drugs can change over time. Now, when these are put in place, it means that those temporary class drugs are treated in the same way as class C controlled drugs would be, giving police the powers that they need for search and seizure in order to investigate and to focus their efforts on cracking down on those who manufacture and supply these dangerous drugs, and that class C effective classification is in place for a period of 12 months when a temporary class drug order is issued.

The synthetics drug market is rapidly evolving, with new drugs constantly emerging, and allowing these temporary drug class orders to be issued means we can move swiftly and appropriately to curb potentially harmful new synthetic drugs. Most submitter feedback focused on how manufacturers could change recipes, and the need, indeed, to be fleet-footed in issuing these temporary drug orders so that we stop the cycle where those manufacturers and suppliers had been getting away with reformulating to try and avoid the law.

I do acknowledge the concerns, and I would also say we’ve got in place the drug early warning system. We’re progressing that to ensure that information on drug supply networks is shared to reduce harm, so that agencies can more quickly respond when new drug formulations are entering the market place, and that enforcement responses can also be moved more quickly. Substances can then be classified more quickly, allowing them to be treated as a class C substance.

Following these submissions, the Health Committee has recommended that the bill progress with two minor changes.

💬 Hon Michael Woodhouse: No, it hasn’t.

The first is to remove “product name” as a term used to describe a substance. I think the House will accept the select committee recommended this, although the member opposite says it didn’t. They did recommend that the removal of “product name” happen, as a term used to describe a substance in the temporary class drug order provision. The term was used when temporary drug class notices were previously introduced and reflects the fact that there were legal products on the market. Now, since the Psychoactive Substances Act 2013 came into force, there are no longer legal products marketed under a product name.

The second change was an amendment to better align the bill with the policy intent. The discretion to prosecute in the bill, as drafted, applies to all offences in section 7, including supply and administration. The intent of the bill is for the discretion to only apply to possession and use offences, and the amendment will mean the discretion only applies to possession and use.

So, again, I want to thank the submitters and the members of the Health Committee for their thorough consideration. I consider these changes improve the bill, and I commend this bill to the House.

We have heard many examples of where this Minister has been completely not over his portfolio—very superficial in nature. That speech is another excellent example of it, because twice in that speech supporting the motion, he said that the Health Committee recommended that the bill proceed. Now, I think he used the word “proceed” in the first case and “progress” in the second—that’s not correct. While the select committee agreed that there should be some amendments set out, the third sentence of its report then says, “We were unable to agree that the bill proceed.” That’s where things lie.

I’m going to go through why the select committee was unable to agree, because it’s a very, very important policy and constitutional issue. The reality is that while the National Party supports clauses 1 to 5 and clause 8 of this bill as not only sensible changes but changes that my colleague Simeon Brown introduced a member’s bill to do, effectively, the same thing, only to have Labour and the Greens rail against that action—including the Minister of Justice, who spent a long time in this House saying what a terrible bill it was and how it should not proceed. Next thing we know, they’re doing very much the same thing. So I think that’s a great thing to do. We certainly approve of that progress.

The National Party’s concern has been with the direction, for police, not to prosecute for possession offences. Now, that’s not just for cannabis; that’s for every single unlawful substance—right up to heroin, methamphetamine, ecstasy, LSD; we can name anyone we like—this bill says they should not prosecute. Now, I have been very troubled—

💬 Hon Dr David Clark: They don’t back the police any more. They don’t back the police like they used to.

Well, what we do back is constitutional conventions. I’m going to go through why, even since the select committee has reported back, I’m becoming more and more troubled, not only by this bill but by a propensity for this Government to overreach in its constitutional powers.

Now, I want to quote from a very—

💬 Hon Dr David Clark: Police back this, and the member knows the police back this. The member knows it.

The member would be better off listening than yelling.

💬 DEPUTY SPEAKER: Can I just remind the Minister: he did have 10 minutes.

He did. Justice Gleeson, who was the Chief Justice of the High Court of Australia, wrote a very good article on this very point at the start of the year. Now, we all know that there are constitutional conventions that apply to the legislature, the executive, and the judiciary. The constabulary is actually a subset of the executive, but the important tension is that police don’t overextend their powers—as delegated to them by this Chamber. By the same token, this Chamber should not overly extend its powers into constabulary discretion. If it doesn’t like a piece of legislation, if it doesn’t like a part of an Act, it should change that part of the Act. I see Ms Swarbrick looking very confused. Perhaps she could go back to constitutional school.

He said this: “Less obvious but equally important is the need to guard against vesting in the police discretionary powers which, for practical purposes, may amount to powers to make law, or to dispense with compliance with the law … it is not the function of the police to make the law, or to decide by whom, and to what extent, the law is obeyed.” Now, we have sentencing guidelines—

💬 Darroch Ball: They already do.

We have sentencing guidelines. Pause, Mr Ball, and I’ll explain. Those sentencing guidelines don’t go to the heart of this bill. They talk about things like: can they identify the perpetrator? What is the seriousness of the offence? Does it involve significant violence? Where there is a history of recidivism—it goes on. The Cabinet minute that approved this bill basically said, “Those things could apply, or there is a therapeutic approach that would be more beneficial.” It doesn’t add this to the prosecution guidelines. It doesn’t add to the prosecution guidelines; it adds to the law. There it says, “Where a therapeutic approach would be more beneficial … there is no public interest in proceeding with a prosecution.”—they should not prosecute. Now, the Minister articulates that as they would allow the police to consider whether a therapeutic approach would be more beneficial. They have no consideration powers. The law is now going to tell them they should not prosecute.

Two really important submissions that the committee heard were, firstly, from Ross Bell from the New Zealand Drug Foundation, when I asked him whether or not he could conceive of any perpetrator of a possession or use offence who would not benefit from a health-centred or therapeutic approach, and his answer was “Of course not.”, in which case absolutely everybody would be immune from prosecution. Indeed, if police tried, the defence counsel would drive a bus through that. Herein lies the question that I have for the members on the other side, because this is a definite case, in a policy sense, of where the left hand does not know where the far-left hand is going. The Minister said, “This just codifies police discretion.”; whereas Chlöe Swarbrick says, “This is the biggest change to drug policy in 40 years.” Both of them cannot be correct.

Chlöe Swarbrick: Yes, they can.

Well, we’ll test that. If we are merely codifying police discretion, then the words “should not prosecute” are unnecessary. Indeed, frankly, the whole clause is unnecessary. So I’m going to test that, because in the committee of the whole House, the National Party will introduce an amendment to clause 6 which will remove those words “should not prosecute” and confirm the words the Minister in his second reading speech has just said, and that is “we allow the police to consider”. They will use their discretion. They will not be directed by this House about how they behave on a day to day basis, because there is no doubt—

💬 Hon Shane Jones: Scaremongering—alarmism.

Well, that member says it’s alarmism, but he knows that his own caucus are not happy with this. The de facto decriminalisation of drug possession is not core New Zealand First whakapapa—he doesn’t like it. He said he doesn’t like it, but they’ve gone very quiet. I’m not going to even consider what, quid pro quo, they’ve got for holding their Noes and supporting this bill, but I bet it’s something. We’ll test that. If they’re right—if this is no change to current police practice—then it won’t hurt to put in a better clause which reflects, more closely, current police practice. Then we’ll know; the outcome of that vote will decide whether the left hand, or the far-left hand prevails in this matter, because I think Chlöe Swarbrick is closer to the truth.

She knows—and Crown Law have confirmed it in their advice on what the Cabinet minutes said—that it doesn’t matter what the prosecution guidelines say, it doesn’t matter the seriousness of the offending, it doesn’t matter the recidivism, or even the refusal—the reluctance by the offender—to even consider a therapeutic approach. That’s not what the law says. The law simply says, “Would they benefit from a health-centred or therapeutic approach?” If that’s the case, police should not prosecute. That is the very definition of this House interfering in police behaviour. It is the very definition of de facto decriminalising. So I look forward to debating those clauses in the committee of the whole. We would like to support this bill. We support clauses 1 to 5, and clause 8, but we cannot support the decriminalisation by stealth that this Government wants to put through.

Thank you, Madam Speaker. Synthetic drugs are having a huge impact in our community, and this is a Government that is taking this issue extremely seriously. As the Hon Michael Woodhouse said, we agreed on two key parts of this bill, but, within select committee, we disagreed on a third. What I want to do is just talk briefly about why this bill is so important, why we need it: because the current approaches are not working, and this results in some real change. But then I want to talk through the parts that we did agree on, because they are important and significant in the context of the large number of deaths from synthetics that we’re having in our community. Then I want to move on, and actually talk about the points where we did disagree, and, basically, challenge some of those things that the Hon Michael Woodhouse was saying.

So, basically, why is this issue important? I think, when we get some issue raised by the Chief Coroner, we know that it’s incredibly serious. This is when, back in 2017, the Chief Coroner alerted us to a surge in the number of deaths that we were having as a result of synthetics. How she knew about that was because she was, in turn, alerted by an Auckland-based coroner, who had seen a number of deaths in the previous week relating to those that were using synthetic drugs. Then, on subsequent inquiry, they went back and found that there had still been a number of deaths in the weeks preceding that. So this was something that was incredibly out of the ordinary, and it resulted in her issuing a number of alerts.

The other thing that had happened is the St John medical director had also contacted Coronial Services, and they were talking about the concerns they were seeing in terms of the number of people they were bringing in for treatment. So something was happening. Since then, it’s been estimated that up to 55 deaths have happened that have been linked to synthetic drugs since June 2017. Since the first reading of this bill, it’s also been suggested that there may be more deaths linked to synthetic drugs, with up to another 20 possible extra cases not being directly listed as the cause of death, but being thought to have been a contributing factor in terms of deaths in that same period as well. So this is an incredibly significant issue, and something that we think is really important.

So what this bill does is two main things. On the one hand, it makes sure that penalties and enforcement is directed to those that can import, manufacture, or supply synthetic drugs. But it also takes a health-based approach for those that are found to be in possession of, or using, drugs. That does not just apply to synthetics, but also all drugs in terms of possession. So the Health Committee received 95 written submissions, and it heard 24 oral submissions. I was saying before that we agreed as a committee on two of those key parts that this legislation does, and we disagreed on a third. So the things that we did agree on: the first one is the reclassification of the two major synthetics that have been associated with all of these deaths—so 5F-ADB, and AMB-FUBINACA, and it’s basically rescheduling these as class A drugs under the Misuse of Drugs Act.

What that ensures is that police and customs have much stronger search and seizure powers, and so what they can do is intercept the drugs before they reach our communities, and that’s incredibly important. It also means much tougher penalties for those supplying and manufacturing these drugs, and that can, actually, include up to life imprisonment. So basically, making sure that those that are putting these drugs into our community—we’re able to enforce strict penalties, and search and seize these drugs before they reach our community. But the other thing that this bill does is it creates a new temporary drug classification. So this is incredibly important in the context where we are seeing a surge in these drug-related deaths, as was happening and we were alerted to back in 2017. So what it does is it creates a new class C1 drug, and that means that what it does is it gives the police the same search and seizure tools as any other class C drug.

What happens is that the Minister of Health can, basically, classify one of these drugs if he’s beginning to see—or if she’s beginning to see—that concerns are being raised in the community. So what the Minister needs to do is publish an order in the Gazette, which specifies that temporary drug order, and then that can be in place for up to a year until that drug is subsequently classified, and it could be classified as A, B, or C, or the classification could be revoked. It also allows for one extra year if the Minister feels they need more time to be able to figure out which class this drug really should be.

So both of those we agreed on as a select committee. The part where we came to differing opinions was on the health-based approach, and reaffirming that discretion that exists currently for police to decide whether or not to prosecute when they find somebody in possession of synthetics or other drugs. This is crucially important, and it was something that was raised also in the inquiry into mental health and addiction, because what it was seen as—if we take quite a punitive approach in the context of possession and use of drugs—was a barrier for many people accessing the services they need, and many of these drugs are incredibly, incredibly addictive. We’ve seen the stories in the media and elsewhere about the impact that can have on people’s lives once they get hooked on these drugs. So being able to take a health-based approach is incredibly important for making sure that people can become free of these drugs and move on with their lives.

So, contrary to what the National Party is saying, this isn’t decriminalisation by stealth. All it’s doing is reaffirming the police’s current discretion when they’re considering whether or not to prosecute. I think I’ll just read the actual words that are in the bill. It says “To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a), and a prosecution should not be brought unless it is required in the public interest.”, and then “When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial.”

As a committee, when we were hearing that this might be decriminalisation by stealth, and those arguments, etc., we actually put that question to the Ministry of Health. We wrote in the question: “What is the current process for prosecution”—so for possession charges, whether they are prosecuted or given diversion—“and how would this change under that bill?” The advice that we got back in writing from the ministry was that the current process of assessing whether a possession charge is prosecuted or not is guided by the Solicitor-General’s prosecution guidelines. In there, there were two main things that needed to be taken into account: whether there was sufficient evidence to be providing a reasonable prospect of a prosecution; and, secondly, whether that prosecution was required in the public interest. When we looked at the public interest test, this was actually already in the guidelines, and it talked about the number of factors that can be considered, and that included aggravating factors, such as seriousness of the offence or level of harm, and mitigating factors. Basically, what the evidence we got in writing from the ministry suggested was that the consideration of whether a health-centred or therapeutic approach would be beneficial forms part of a broader range of public interest considerations. The advice we got was that this process would not change under the bill. So, basically, what they were saying is it would reaffirm just what was already currently happening under those guidelines.

The second thing that was raised in the Health Committee was concerns about if the police started to refer a huge number of people for health-based approaches in terms of addiction, what referral pathways would they have, and whether there would be enough services. So, again, we asked the ministry what was proposed in this space, and what they got back to us and said is that police and the Ministry of Health are working together to develop a referral mechanism. What they were talking about was making sure that police had clear guidance around the criteria for referral but also a single point where that referral would happen so that police could refer in and then those referrals would go out and you’d have a consistent approach across the community. So that work is already ongoing to make sure that this is happening.

Then the third thing was the concern about the resources in the existing services. This is where the Government has also announced, in Budget 2019, that it’s going to be putting a huge amount of extra investment into mental health more broadly, but also very specifically into alcohol and drug services, and also making sure that we’ve got the buildings and the infrastructure there to support that. I can read out a couple of the examples, but we haven’t got time to go into it in the full detail, which would take quite a while. Basically, Budget 2019 provides an extra $44 million over four years to improve existing drug addiction services, with a focus on residential care, detoxification services, and ongoing support—also, upgrading current facilities and adding capacity by building new facilities, and that’s why we’ve got a whole lot of ring-fenced funding for district health boards to be able to do that. There’s a whole lot of extra resourcing going into corrections as well for those in the corrections system requiring alcohol and drug support and services.

So this is a really good bill. It takes a much stronger approach in terms of those supplying, importing, and distributing drugs, but a health-based approach for users and those in possession. I therefore commend it to the House.

Thank you, Madam Speaker. It’s a pleasure to take a call on this, the Misuse of Drugs Amendment Bill, second reading. I’m not on the Health Committee, so I have not been part of the deliberations or the select committee process. I did ask to take a call on this because it’s something that I feel very strongly about. There’s a debate in the House today happening around whether or not this is decriminalisation by stealth. I’ve got some questions that I’d like to put. I hope the debate is done in a respectful way, and I have got some questions to put to the Government benches.

The first one is I think that it is very good that we’re toughening up around dealers and suppliers. I wish that my colleague and friend Simeon Brown’s bill had been picked up by the Government, because he put a lot of work into that, and it would’ve been a very effective bill that probably already would’ve been passed and there would’ve already been legislation in place to deal with suppliers and dealers. But the practical reality of the suppliers and dealers, generally speaking, is that they won’t be dealt with by the front-line staff, by the cops that are turning up at the beginning of a shift and going out in an I car, a two-man car, a Q car, a one-person car. They won’t be dealing with the dealers and the suppliers. Generally speaking, it’ll be the specialist squads. It’ll be the drug squads and the crime control units that are gathering intelligence, that are running operations, that are gathering evidence, and that will target and execute warrants. They’re the people that will be dealing with the dealers. Occasionally, a front-line police officer may stop a car and they may randomly have a good hit where they actually find a dealer in transit with drugs that meet the threshold—and that’s good police work, but that happens rarely; it’s normally left to those specialist squads.

So I think that’s a very good piece of the legislation in terms of toughening up the laws around dealing with the scourge of dealers and suppliers in our communities, but the bit that I am disappointed in, the bit that I want to raise—and every speaker so far in the House has got up and made it very clear that they’re reaffirming the discretion that our police officers currently have in the front line every night when they’re out there dealing with the public, in terms of their discretion around how they deal with people that are found with drugs for personal use. That discretion has been around for a long time. It’s an important discretion. We should reaffirm that. And the police, generally speaking, have used that discretion in a very sensible way. So why, if we accept the fact that they already have that discretion, are we now layering a new test for them? Why are we now telling them that they have a new test and a new hurdle to get past, because that is what is happening, right?

Chlöe Swarbrick: Transparency.

So transparency—if the argument is transparency, is the Government saying that the police right now are not transparent in the way that they use their powers of discretion? That seems to be the argument that is now being put up. That’s a very different argument around transparency in the decision making. So if it is a point of transparency, then someone from the Government benches please stand up in the next call—and I know that we’ve got a very experienced ex - police officer that’s going to take a call here—and tell us how you are now making those powers of discretion, those decisions that are being made by police officers, more transparent and, actually, easier for them to make. The reality is this: a young police officer on the front line who finds someone that is under the influence of drugs, that has only got drugs that fit within the quantity for personal use, then has to apply their discretion. They may look at the person’s demeanour. It may be body language. It could be a whole raft of factors where they have to call on their own practical common-sense ability to be able to make a decision in the public’s interest in terms of what happens to that person.

A health and therapeutic approach should be a given. That should always be applied. That’s nothing new. We’re not suddenly going, as a Parliament, “Oh, now we’re going to apply a health and therapeutic approach.” We always have—we always have. It’s always sat alongside the enforcement approach, and that’s the way it should be. Just to give the House a clear example of why National believes so strongly in that, you only have to look at our drug and alcohol courts, something that has proved extremely successful. I’d encourage the present Government to roll that out, because we would be—we’d be expanding that; it’s been so successful.

But the reality is this: you’re not reaffirming front-line police officers’ ability to use their discretion. You are sending a very clear signal, as a Government, that they now have to apply more tests to that. [Interruption] Yes. I’m sorry, that’s exactly what’s happening. If the New Zealand First member would take a call, then explain to us clearly, if you’re not applying new tests, if you’re not applying new considerations for our front-line police officers to use their discretion, why it’s in the bill, because the last speaker was very clear about it.

💬 Angie Warren-Clark: We just codified it.

They said that—that’s right, you are codifying it. You are codifying it.

💬 DEPUTY SPEAKER: I’m not—I’m not.

Sorry, Madam Speaker. You’re absolutely right. You are supporting the point that the Hon Michael Woodhouse made.

💬 Hon Member: Recidivist.

You are codifying—

💬 DEPUTY SPEAKER: Speaking of recidivism.

—the decision-making process—sorry, you know that I am a recidivist offender around this. I do apologise, Madam Speaker.

The Government is codifying something that, actually, if you trust our police, if you accept the fact that they have used their discretion responsibly and lawfully for decades—very effectively, always with the test being the public interest—why are you adding a new consideration and hurdle for the police? Why is the Government adding a new test that is going to make it harder in a practical sense? Trust me; it’s going to make it much tougher in a practical sense, at a common-sense application, to front-line police officers to continue to use their discretion to make those decisions. I’m just telling you, from experience and from the feedback that I get—and let me put on record—I am disappointed—

💬 Greg O’Connor: Dog handlers never had any discretion.

No, no, dog handlers did occasionally deal with this; don’t you worry. Look, I’ll be the first to admit that when I dealt with someone that had used cannabis—bearing in mind that I spent the bulk of my career in Gisborne on the East Coast, right?—at that time, they were some of the biggest, heaviest growers and suppliers of cannabis in the country, without a doubt. It created massive social problems for us—make no mistake about that. I did use my discretion, and if I found someone that had been smoking dope and had a couple of tinnies on them, you know what? Actually, if I felt that they were OK—

💬 Darroch Ball: You let them go.

—it would go down a drain; I’d give them a warning, and let them go. I didn’t always get it right. I didn’t get it right. There was the odd time where later on I’d be called to deal with that person again. But that’s the discretion.

💬 Hon Member: You didn’t know how to do an arrest file.

Chlöe Swarbrick: Wait. Listen to yourself.

That’s an interesting point, but no. I am listening to myself. I hope that you’re listening—

💬 DEPUTY SPEAKER: I’m listening.

—because I’m trying—thank you, Madam Speaker. The reality of this bill is that you are applying a new test to a front-line police officer. The Government is applying a new test—

💬 DEPUTY SPEAKER: Can I just remind members that this is a second reading. We’ve got a lot of interjection and we’ve got a lot of questions, actually, being asked of members who don’t have the floor. It is a speech that the member is giving, and I just ask the members over here who have either had their turn or will have their turn that they make their points then.

And I’m hoping, Madam Speaker, that that’s what happens. I’m hoping that I’m being clear enough to say that if the Government is standing there saying that they completely reaffirm the discretion that a front-line police officer can use in terms of how they deal with people that they find with a quantity for personal use, or who are under the influence of drugs—I want just a very clear answer. If someone from the Government can stand up and say why you feel you need more transparency around those decisions, why you feel you need to codify it, and explain to me how the front-line police officer is now not going to feel like they’ve been sent a very clear signal from this Government that they now have got a new test that they have to overcome before they can actually use that discretion and take action in what is the best interest of public safety—thank you very much.

Thank you, Madam Speaker. I don’t often like bringing facts to the debate in this Chamber, but it seems like I have to, listening to Mark Mitchell and Michael Woodhouse. Mark Mitchell just sat down and he literally, in his last sentence, I believe, said that this doesn’t change anything that the police are already doing. It’s codifying it, but now they have to do something else. How could it be codifying what already occurs, and then they have to do something else? It doesn’t make sense. I mean, I know that that member can go back and have a look at his speech, because I think he needs to, so then he can correct himself during the committee stage and in the third reading.

There’s one thing that the Hon Michael Woodhouse said as well, which was—and we’re going to hear it ad nauseam from the National Party—about this being de facto decriminalisation. They’re going to make a big deal about that because that sort of gets the emotive heartstrings going with people and it gets the hooks in and it tries—

💬 Hon Maggie Barry: And it’s the truth.

Well, there we go—we got it from the Hon Maggie Barry. So one of the things that the Hon Michael Woodhouse said was not only does this new provision, which is the health-based approach for possession and users, deal with the psychoactive substances but it’s going to deal with all of the other illegal drugs as well. That’s true, but he listed off a few of the scaremongering drugs that he wanted to, which was all of the class A drugs. He said that we’re talking about LSD and we’re talking about heroin, cocaine, etc. It’s going to apply for all of them as well. Well, here are a few facts for Mr Woodhouse and Mr Mitchell and for the rest of the National Party members who are going to stand up. For all of the class A drugs, for the 2017-18 year—so that’s when they were in Government, too—how many people went to prison for possession of that?

💬 Hon Mark Mitchell: How many?

Zero. How many for cannabis possession and use? Seven.

💬 Hon Mark Mitchell: Seven?

Yes, seven. How many for all of the other class B and class C? Four. So when Government parties stand up and start talking about the fact that this is intended to codify what is already existing practice, what already existed under the National Party, with evidence that it existed under the National Party and successive Governments as well, bear in mind—so I think it was since 1994, the stats were at least 20 or 30 years ago, the number of prosecutions for those who were using or had possession of marijuana dropped by about 7 percent, from the last 20 or 30 years. This is a provision that is intended to only codify what is already in police practice.

💬 Hon Mark Mitchell: That’s not true. That’s absolutely not true.

See, it’s not true—I haven’t finished with my facts, Mr Mitchell. What surprised me was that the National Party are not listening to the Police Association. This is what surprised me. I’m going to quote it out, and then we can hear what Mr Mitchell is going to say.

💬 Hon Mark Mitchell: The Police Association—they agree.

Well, riddle me this, then, Mr Mitchell. If they agree—so the National Party have said that one of the clauses they want to get rid of is clause 6(6). So that says, “When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial.”

What the Police Association said in their submission: “The Association supports this section, which reconfirms the public interest test and adds, as a relevant matter, consideration as to whether a health-centred or therapeutic approach will be more beneficial than a prosecution for the individual concerned.”

I think that’s very important for not only Mark Mitchell but for the rest of the National Party to understand, and, more importantly, for everyone who is listening to understand. So in respect of one of the clauses that the National Party wants to take out, the Police Association support that clause. They said it “reconfirms the public interest test and adds, as a relevant matter, consideration as to whether a health-centred or therapeutic approach will be more beneficial than a prosecution for the individual concerned.”

So Mr Mitchell had a number of questions for this side of the House; here’s one for Mr Mitchell and that side of the House: is it now the case that the National Party is not listening to the Police Association?

💬 Hon Mark Mitchell: The Police Association says, “There is a concern about some aspects”—

I just quoted them, Mr Mitchell. You need to stand up or pass your notes on to someone else and answer that question.

I’ll move on to what I believe is—well, it’s one of things that New Zealand First absolutely pushed for in this bill, and we’re happy that it got there, and it was that reclassification of those two poisons that were killing a number of people in our streets—and, in fact, since June 2017, there have been up to 55 deaths, and that’s the main reason why we brought this in. New Zealand First pushed very, very hard to ensure that those two drugs themselves, specifically, were put into class A. And it’s not just about the increase of the penalties for—[Interruption]

💬 DEPUTY SPEAKER: Order! Order! Mr Mitchell. There’s a barrage.

It’s not only the importance of the increase in the ability for the judge to sentence the dealers and manufacturers and peddlers of the synthetic drug, or poison, to life in prison—which, let’s get one thing straight, is eminently more powerful, with harsher penalties, than what Simeon Brown’s bill was. Simeon Brown’s bill, that concentrated on these two substances, only wanted to move the maximum sentence from two years to eight years, originally—that’s what his bill said—and this is moving that into class A, which is inclusive of up to life in prison, which I believe that Mr Simeon Brown appreciates.

💬 Simeon Brown: How long’s it taken?

Well, what I would like to say to that member is that that’s not only what bringing it into the Misuse of Drugs Act does. Most importantly, it gives the police the ability and the powers of search and surveillance, which the Psychoactive Substances Act does not. It doesn’t do it. So what’s important about that is that the police can search this out and stop the drug getting on to the streets, down to the users in the first place. It’s vitally important that that side of the House understands that.

And not only that but this bill also gives a new classification of C1, for any new dangerous psychoactive substance that has not been approved, which goes directly into being an equivalent of class C—which, by the way, is exactly the same maximum penalty for dealers and suppliers that Simeon Brown’s bill was doing. So it’s vitally important to understand why New Zealand First pushed for this aspect of that bill, and what that provision brings, in addition to what Simeon Brown’s bill does.

What’s most important for New Zealand First with this bill is that this bill, with the clause that’s being debated at the moment, is just reaffirming what the police already do and what the police practice already is. It’s most important for New Zealand First that this is just reaffirming current police procedure and, most importantly, that it doesn’t affect the police operationally on the ground. That’s the most important aspect of why New Zealand First is supporting this bill.

I’d like to thank the Minister for bringing this bill to the House. I’d also like to thank the Minister for the discussions with New Zealand First around some of the issues or questions that were brought up during the select committee process, and for the future meetings that we will be having with the Minister between now and the next stage of this bill. New Zealand First will be supporting this bill at this stage.

Thank you, Madam Speaker. It’s a pleasure to speak to this, the Misuse of Drugs Amendment Bill, its having now come through the select committee process and here for the second reading.

I’d like to start, first of all, by refuting some of the comments that the member who has just taken his chair, Darroch Ball, has made, particularly as he claims to represent a mandated view of the Police Association—and, indeed, he raised that allegation with my colleague the Hon Mark Mitchell. Can I just read from some commentary here from Chris Cahill, the association president, with respect to this bill, and I quote: “It has an air of drug reform on the fly, rather than a more considered debate and informed legislation. I am worried that by codifying Police discretion the government is potentially asking officers to be the spearhead of decriminalisation. If decriminalisation is what parliament wants, then that’s what the law should say”, Mr Cahill reports. I’d just like to have that on record as a riposte to the previous speaker.

This bill does three things. The first thing it does is to classify the two class A drugs, AMB-FUBINACA and 5F-ADB; the second part, which I’ll spend some more time on, is the prosecution in the public interest of a therapeutic approach as a default; and third is the temporary drug orders. Now, to the first: we’re all in agreement with reclassifying as class A these two synthetic cannabinoids. Certainly, AMB-FUBINACA came out in around about 2015-16. There was the large event in New York City—I think there were 30-plus people who were wandering around zombie-like because it depresses the central nervous system—and then the following year, in 2017, we had at least 20 to 30 deaths with a synthetic that’s 85 times stronger than cannabis. And I’d like to support Simeon Brown and his bill that did not make it any further, but we thought this made substantial progress on what we’re wanting to achieve here as well.

To the Health Committee: the select committee had 95 submissions. There were 59 individuals, 36 organisations, and we heard 13 oral submissions. And I think, really, the contentious part with this bill is whether the prosecution in the public interest warrants a health-centred approach—whether it would be beneficial, and just to clarify: this is for possession and use, and not for supply.

Now, several points to make: we’ve already heard that discretion is already currently in practice. So why would we want to legislate exactly that? Well, I think that’s clear in the departmental report, where it says exactly why they want to legislate for it. And I read here: “The first argument is made to increase public awareness of the Government health-based approach”—this is a marketing campaign; that’s why you want to put it into legislation: to market the Government’s current philosophy. Maybe it should go through publicity and get a publicity approval, if that’s really what it is.

It also says, “The purpose of putting this clause into legislation is to reinforce the police focus on those who would profit from drug dealing and not those who use illicit drugs.” So very clearly there—no police focus on the users.

There was certainly some Māori representation—Ngāti Whātua presented to us. They had huge concerns that there’s already unequal distribution of justice, in their view, for Māori and others, and that if police have discretion that same unequal distribution of justice might apply through this bill—no clear solutions from the ministry as to how they’re going to do that, or how they’re going to approach that. There was a statement as to a Māori advisory council that exists—that’s well and good—but what is the operational imperative to make sure that what we’re all understanding is improper behaviour does not carry through this bill?

We all have concerns, certainly I do, for police and health resources—the ability for police to fine-tune and really carry the intent of what’s being proposed here through that discretion, and then it’s all going to be passed to health resources. Goodness me—we’re already struggling with health resources; where is this magical therapeutic approach that we’re talking about? We raised the question with the ministry officials—well, particularly with the police officials—of is there any instance, and I think this really cuts to the nub of things, when a health-centred approach would not be appropriate? He said no. So we’ve made the argument, de facto decriminalisation—although, actually, the criminal offences still exists, so technically that’s not correct, but it certainly is a de facto non-prosecution.

So here’s my view and my summary of the view: I think addiction problems can, clearly, have health problems but to say addiction is a health problem, not a drug problem, is wrong. I make three observations to support that. The first is drug addiction is a drug problem with health impacts, is how I would frame it. Now, health problems can be acquired or they can be congenital; you can bring them upon yourself somewhat or you can be born with them. Drug problems are acquired; very few people are actually born with a drug addiction. Some do with foetal alcohol syndrome etc., but it’s actually quite rare. Most of it is acquired; it’s an acquired health problem as a consequence of personal choice, albeit, I accept, sometimes in challenging circumstances. On one level, then, a concern I have is that this bill is normalising illegal behaviour. The question asked of police, as I said, was: was there any instance when there wouldn’t be a health benefit? The answer was no. Is there any offender, then, who would not benefit from a health approach? Is there any criminal who does not suffer from a health problem, particularly lack of empathy for the victim, who would not benefit from a health approach? How many murderers have severe personality disorders? A great number. How many violent offenders have hearing, vision, and cognitive deficiencies? A great number. Where, then, is the line drawn between self-serving, illegal activities and harm to innocent others?

The line is being drawn at this bill, at the possession and use of illegal drugs. My concern remains that it normalises illegal behaviour under the guise of a health approach. I would be more enthusiastic for funding towards improving drug prevention programmes, increasing addiction and mental health services, increasing border security, and increasing detection and monitoring. Amidst those range of things, we simply cannot support this bill. Thank you, Madam Speaker.

E Te Māngai, tēnā koe, tēnā koutou e Te Whare. I stand today in strong support of the second reading of the Misuse of Drugs Amendment Bill, on behalf of the Green Party of Aotearoa New Zealand. I want to thank all of the 1,995-odd submitters who submitted to the Health Committee for what I understand was a deeply robust debate which unfortunately led to the Opposition kind of throwing their toys out of the cot, for reasons which I will get to, further down the track.

💬 Hon Member: That’s very good of you.

CHLÖE SWARBRICK: I believe it’s somewhat inconsistent with their track record, including the track record of that member who is now heckling me.

I think when we talk about the issues that were the catalyst for this bill—that being the more than 50 deaths of New Zealanders—we frequently forget that we’re actually talking about people’s lives. We’re not just talking about mere numbers, and that is why it is crucially important that we actually do take a balanced approach to this issue.

The premise of this bill is simple: we are seeking to address the causes of drug use and abuse, instead of simply falling down the track that we have for the past 40 years of locking people up and throwing away the key—out of sight and out of mind. I’d like to ask members of the Opposition who seem to be calling for the continued criminalisation of people who use and abuse substances whether they genuinely think that a good use of public resources is locking those users up for $110,000 a year. Is that a better use of public resources than it is to provide somebody with mental health and addiction treatment? What we know from the research, including the most recent He Ara Oranga, the mental health and addiction inquiry report, is that the major drivers of mental health and addiction problems are isolation and trauma. Our current systemic response to issues of drug use and abuse further isolates and traumatises people. We know this through the likes of the recidivism rates that have been raised by Mark Mitchell, a member of the Opposition.

I want to turn now to a few of the critiques that have been raised by the Opposition, because, frankly, they just don’t make sense. If we’re to talk about common sense, we have the likes of the Hon Michael Woodhouse and Mark Mitchell saying that, somehow, the position of the Labour Party, the Green Party, and New Zealand First are mutually exclusive here. Michael Woodhouse in his—I suppose it was an attemptedly witty remark about the left and the far left, on the one hand, codifying police discretion, and, on the other, posing the biggest change to drug law reform in over 40 years. Both of those things are not mutually exclusive. We had Mark Mitchell saying that, on the one hand, there’s nothing new that’s been added here with the formalising of police discretion, but also there are new things in here and that’s a problem, because by adding these new things in we don’t trust police, but also there’s nothing new. I don’t know if Mark Mitchell was listening to himself speaking because, ultimately, what we are seeing here is the biggest change to drug law reform in over 40 years, because it is the codification of that police discretion for the first time. There will be transparency and accountability and data on how police use their discretion, which is currently used on an ad hoc basis. We even had the member Mark Mitchell saying that he, as an officer, had used his discretion and that he sometimes had got it wrong, but the problem is we have no data. It was used on an ad hoc basis; there was absolutely no transparency on the criteria that he applied to use that discretion as an individual officer.

The point here is a systemic change. The point here is transparency and accountability. The point here is to actually address the fundamental issues that drive drug use and abuse, which are echoed in report after report that have been presented to this House and to members in this House—as early back as the Law Commission 2011 report on the fundamental flaws of the Misuse of Drugs Act, recommending that we move towards decriminalisation of use, through to the mental health and addiction inquiry of last year, which showcased the reasons why people do engage in drug use and, ultimately, go down a path of drug abuse—those being, and I can’t reiterate it enough, the issues of isolation and trauma, which our current systematic response of criminalising people only serves to reinforce and make worse.

I also want to raise the issue which has been pointed out by a number of Opposition members, that being that we didn’t support the National Party member’s bill in the name of Simeon Brown, which they say was, ultimately, doing kind of the same thing as this bill. It’s kind of doing the same thing somehow, but, also, this bill is massively different and they’re not supporting this bill—meanwhile, they supported Simeon Brown’s bill. The major difference between the member’s bill as put forward by the National Party member Simeon Brown and this bill is that we’re actually talking about what we’re going to do with the people who are affected by the issues of substance use and abuse. What was absent, completely absent from the National Party’s member’s bill were users and abusers, and the people whose deaths led to this bill in the first place. We are actually codifying how we are going to respond to those problems. On that point, I want to refer to an article by National Party member Simeon Brown, who wrote, in October 2018, a response to a piece that I wrote for the publication The Spinoff, where he said that the National Party was proposing a middle ground on drug law reform. He said, “Swarbrick frequently refers to Portugal as an exemplary model of decriminalisation. Yet she fails to note that manufacturing, distribution, and supply are still criminal offences and highly penalised in Portugal.”

The member goes on and then concludes, “As a society we have to acknowledge that more needs to be done to support those suffering from addiction.” If the Opposition are proposing somehow that they have a middle ground here but all they are calling for is increased criminalisation and penalisation of people in response to drug crises, they are far removed from reality, because it is anything but. What this bill proposes is exactly what the National Party member Simeon Brown and what many Opposition members said in their calls when speaking on his bill: they don’t want to criminalise users.

I’d just like to actually refer explicitly to what is put in this legislation—clause 6, which says, “To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a), and a prosecution should not be brought unless it is in the public interest.”, and, “When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial.” That which I’ve just quoted is supposedly the new, not new clause, per Mark Mitchell’s contribution to this debate.

I also want to refer to the point raised by the Hon Michael Woodhouse, who said that I needed to go back to constitutional school—an interesting point from a member, raising with one who has been to law school with another who hasn’t. But the palpable patronisation that has been involved in this debate thus far—if all you can come back with when evidence confronts you is some ad hominem attacks, I think there’s one of us who needs to go back to school and, quite frankly, I’d hesitate to suggest that at this point it wouldn’t seem to be me.

This has been a highly publicised change—a highly publicised change. We have had the deputy leader of the Opposition going out in front of TV cameras on the tiles in Parliament and talking about how this is decriminalisation by stealth. All of the National Party members have their talking points and will continue to hammer this home. That is far from anything but stealthy, when we are enabling such a long-winded debate on it, let alone the entire select committee process, which was not rushed through under urgency but heard from 90-odd submitters.

I also just want to, in closing, point to what has been raised many times before, including in the opinion editorial by the National Party member Simeon Brown, and that is the case of Portugal. It’s quite funny to me—it’s interesting, which is a loaded political term. It’s interesting to me that the National Party consistently refers to Portugal, consistently refers to evidence, but wasn’t willing to engage with João Goulão, the architect of Portugal’s change, in front of the cross-party group, which we invited him to.

Thank you, Madam Speaker, for the opportunity to take a call on the Misuse of Drugs Amendment Bill. Look, I’d like to make a few comments, and I just want to say thank you to the previous member, Chlöe Swarbrick, for explaining how this bill has not been done and dealt with under any urgency by this Parliament. I’d like to remind this House that it was on 30 July last year that the Acting Prime Minister, Winston Peters, said at the post-Cabinet press conference, after the news came out that 25 people had lost their lives from synthetic drugs, that his Government, this Government, would deal with this issue with “unction and urgency”. Well, it’s one year further on from that. We now know there has been upwards of up to 80 people who have lost their lives from these dangerous drugs, and the Government has only just got a bill to the second reading in this House. We still have the committee stage of the House. We still have the third reading. The Government has still not addressed this issue, and people have continued to die from these insidious drugs. People are still making money from people’s misery, from selling these drugs. The law as it currently stands still says that a person will only get a maximum sentence of two years’ imprisonment if they are found guilty of supplying synthetic drugs.

💬 Hon Tim Macindoe: Shameful.

That is something which—yes, Mr Macindoe—is incredibly shameful and which this Government should reflect upon, because their words have not stacked up with their action. Their action has been poorly lacking and incredibly slow, one year on since the Deputy Prime Minister said that this would be done with urgency—unction and urgency.

The Green Party has also come out, and Labour Party members, while my bill was going through the parliamentary process, consistently opposed to increasing penalties for the suppliers of synthetic drugs. I do applaud them for seeing the sense and the need to increase the penalties for those supplying those dangerous synthetic drugs and classifying them as class A under this bill. But those changes could have been done by Order in Council a year ago. Those two substances, AMB-FUBINACA and 5F-ADB, could have been listed as class A substances a year ago by the Minister of Health. This Government has sat on its hands on an issue while 80 people have died. Chlöe Swarbrick said we need to think about those who are addicted to drugs. Well, 80 people have died from addictions to these drugs—80 people have died from addictions to these drugs—and we need to tackle the suppliers who continue to make money from those addictions.

While we support the clauses in this bill which will, finally, ensure that those two substances become class A drugs and do provide temporary drug class orders to be issued for emerging and potentially harmful drugs, the National Party cannot support the decriminalisation of all drugs, which is included in this bill and which is a new power, because if you read clause 6, which has two parts to it, the first part affirms the police discretion, and the second part includes a new element which the police must take into account. The evidence before the select committee said there would be no instances where the police would prosecute under this piece of legislation. There does need to be a health-based approach, but there also needs to be a criminal element to our drug legislation to actually say that these drugs are dangerous. We think about the drugs which this impacts: meth, heroin, MDMA—serious drugs, all being decriminalised under this piece of legislation. The law should be making it very clear: they are illegal. The message that Parliament should be sending is that they are dangerous and we should not be decriminalising in this way. Thank you, Madam Speaker.

A split call—I call Priyanca Radhakrishnan.

Thank you, Madam Speaker, and just before I begin on the bill, since this is the first time you’ve been in the Chair when I’ve taken a call, can I just congratulate you on becoming the Assistant Speaker.

ASSISTANT SPEAKER (Hon Ruth Dyson): Thank you.

It is, though, with honour that I rise to take a call at the second reading of this bill, the Misuse of Drugs Amendment Bill. I say it’s an honour, because I wasn’t part of the select committee that considered this bill, but it is one that is incredibly important and, as the member Chlöe Swarbrick said, one that has been publicised—

Chlöe Swarbrick: Extensively.

—extensively; that’s right—and a lot of misinformation, as well, has been spread; a lot of scaremongering.

I want to just take us back to the heart of this bill, where it’s originated from. It has been a long time coming, because there is increasing evidence, there is increasing acceptance, internationally that the war on drugs has failed and that doing the same thing again and again, though politically expedient, is not actually getting us to the outcome that we want. The outcome that we want, I believe, is actually the same on both sides of the House. We all acknowledge the harm that comes from drug use—the deaths. We may, you know, use different figures or whatever, but at the end of the day, the deaths we’ve seen as a result of synthetics on our streets—it’s too high. All of us want to minimise that drug harm and protect people from it. Where we disagree, though, is the avenue or the paths that we take to actually reach that outcome, and that’s why I’m incredibly proud of the Minister and all those, including Chlöe Swarbrick, who have worked on this legislation, because this is the pathway that will get us there. It is not about throwing more people into jail—you know, locking them up, throwing away the key—because if there was evidence that that was working, we wouldn’t have the problem that we’re seeing on the streets now. The fact is that it hasn’t worked.

And as I was listening to the arguments that members opposite were making and I was trying to unpick the strands of the different arguments, it was really difficult because it was such a jumbled mess right from the start, when Simon Bridges came out and said that if his party were ever to become the Government, they would sign this country up to Trump’s war on drugs, which hasn’t worked. And I remember reading an article that said that his deputy was less sure about that.

Secondly, Simeon Brown, who just spoke before me, made a point that this should have been considered under urgency, we’ve taken too long—whereas other members have talked about a rushed process, so make up your minds.

Thirdly, members have said, “Ah, there’s nothing new in this bill.” But it does, apparently, what Simeon Brown’s bill would have done, which the Government rejected because it was more of the same; it was more punitive, with nothing else.

And, finally, on a health-based approach, we had the Hon Mark Mitchell, who said, “That’s nothing new. That’s nothing new in this bill. You know we’ve always supported a health-based approach.” And then the member Shane Reti mentions a struggling health sector—the fact that apparently there’s no money for this—and asks where these magical therapeutic services will come from. So I fail to actually understand what the overriding argument is from the Opposition.

But getting back to the bill, though, a health-based approach is absolutely needed; and what this bill will do is a few things. It classifies the two main synthetics that have been linked to a number of deaths as class A drugs, in recognition of the fact that these are high-risk drugs. It reaffirms the existing police discretion for personal use and allows them to actually redirect people who have been caught using to therapeutic services, which are not so magical—they exist, but, of course, submitters have raised the issue that we need more of them. They need to be more accessible services, and the Minister has already taken that into consideration. It enables temporary class drug orders to be issued to better control these substances that keep emerging and that are potentially harmful.

So these are changes that are being introduced to disrupt the supply and availability, and target suppliers, but also to ensure that we don’t just keep doing the same thing again—that we actually address the fact that people who are using need support and need help to get out of the trauma and the isolation that would otherwise have just sent them down the same street all over again. I commend this bill to the House.

Thank you, Madam Speaker. I rise to talk at the second reading of the Misuse of Drugs Amendment Bill, which, as attentive members will gather, the National Party does not support. On this side of the House, we acknowledge that there is a need to do better, but we also need to combine additional funding and revenue into drug—and alcohol, for that matter as well—rehabilitation services and increase the level of treatment that we provide, including in prisons, which that side of the House and the Government have already diminished the funding for. We think that’s a retrogressive step. And we also think that we need to take a much firmer line and give a clear message to the public about what this Parliament would like New Zealanders to do around drug and alcohol reform—I know this is about drugs, but I tend to combine the two of them.

Many people have said, on our side of the argument, that this is decriminalisation by stealth.

💬 Greg O’Connor: National ignored the alcohol recommendations.

A couple of people are barracking already, including one who was involved with the New Zealand Police Association and the New Zealand Drug Foundation, who presented at our select committee and agreed that the provisions in the bill amount to de facto decriminalisation of drug use—

💬 Greg O’Connor: Ignored the alcohol recommendations.

—the former association that that member who’s bellowing from across the House, Mr Greg O’Connor, was a part of. So the stalling tactic by the Government while they figure out exactly what they’re to do—is there a working party on this somewhere that’s due to report back in a year or two? How much longer can we delay what needs to happen? That’s why we’re annoyed that the Simeon Brown bill wasn’t picked up, because 80 lives have been lost while the people on the other side of the House continue to delay.

So this is a Government that could immediately move to classify those two strains of synthetics as class A drugs through, for example, an Order in Council. It could be done immediately. It doesn’t need to traipse through the process in the House and further delay so that other New Zealanders will die—and they certainly will—while this House and that Government procrastinate instead of really moving hard and quickly on these extremely harmful substances.

We’ve heard from former policemen, including my colleague the Hon Mark Mitchell, that the police have already had discretion around these sorts of things. They haven’t needed to have the law changed in the way that it is, apparently, going to be under sections 5 and 6. So if police follow clear Crown Law guidelines to determine whether a prosecution is appropriate and whether it is in the public interest, that’s fine. But this bill goes that step further by explicitly stating that the police should not pursue prosecution. Judgments and compassion are qualities that police can bring to the fore when they are dealing with individual cases, as Mark Mitchell outlined from his time in the force, but the National Party cannot support the intention of clauses 1 to 5, and clause 8 of this bill—we do support those, I should say; we believe that clauses 6 and 7 are really the ones that are problematic and the ones that other colleagues and myself want to just draw attention to at this second reading.

I think that when the law shifts from a presumption of prosecution to one of non-prosecution, that is a seismic shift in the message that we are sending to New Zealanders. And when we act responsibly and try to think of raising awareness of the perils of drugs, I don’t think that we need to look to Portugal, which has not been an altogether successful model, and I don’t think it’s one that New Zealand members of the public, and society at large, would want to embrace. It’s been cited repeatedly as the panacea for this country. Many of us on the side do not believe that that would occur. The nephs on the couch aren’t going to be getting off the couch if there is full decriminalisation. This is a fear that is shared, I think, by members across this House. We need to do something. This bill is not the way to do it. It’s taking too long, it doesn’t actually deliver on what it should, and in our view it is moving far too far in the wrong direction. So that is why members on this side of the House cannot commend this bill to this House. Thank you.

I come to this House after 40 years in law enforcement. I acknowledge my colleague across the House Matt King, who was a very effective detective in the North. But I’ll challenge him, I’ll challenge Mr Mitchell, I’ll challenge any police officer anywhere in the world to say that anything we have done has done anything to control, to curtail, to reduce the amount of drug damage in our world.

Actually, something did happen. We’re talking here about changing a law. In the 1970s, speeches were made exactly the same as Simeon Brown made here when he talked about “If we just increase the penalties.” Well, that was done with heroin. In the 1970s, New Zealand—Wellington here, where I was a young police officer—was awash with heroin. The sentence was changed to take it to life imprisonment and it made not one iota of difference. The only difference that was ever made was when the Mr Asia syndicate, which was responsible for bringing virtually all the heroin into New Zealand, collapsed—as many business conglomerates do in the United Kingdom—and the supply of heroin into New Zealand stopped overnight. As a result, New Zealanders either gave up heroin, they went to Australia, and some went into homebake. So that wasn’t any law change that changed anything.

Mr King, again—I’ll look at Northland because Northland is actually a very, very good example, because Northland has become one of the worst places in New Zealand for drug use, for gangs, for drug manufacture. Now, Mr King knows full well that he worked very hard and his colleagues worked very hard, but, actually, it did nothing and the whole thing deteriorated, and what this determines is that we simply must have a new look at the way we do things.

I’ve been privileged enough in my previous role to travel around the world and spend time with police officers in places like Philadelphia, places like Baltimore, places like Los Angeles, and places like Miami, and each of those towns has an area where it is rife with drugs. You’ll see a lot of it on television. It’s been dramatised, but, when you actually go into those areas, they are virtually no-go areas. Drugs are rife, and nothing from Ronald Reagan’s war on drugs made one iota of difference. It has simply got worse and worse as time has gone on.

All the tough talk—and I hear two of the colleagues on your right, Mr King, saying, “Soft on drugs. Soft on drugs.” Mr Hudson, while people are still making those stupid comments, nothing will be done. What we’ve got to do is understand that we have to now take a look at what we are doing.

Portugal is a very good example. I was actually, again, fortunate enough to spend time in Portugal. What happened in Portugal was that they were hit with a drug problem. A little bit of history is important, because each country is slightly different. They were a country that was very cut out from the rest of the world. They had, basically, missed the 1960s and 1970s—all the whole heroin liberalisation, or that whole heroin wave, had missed Portugal. However, it hit them all of a sudden, and they were getting massive deaths from heroin.

They could have gone two ways. They could have gone the way the rest of Europe had gone and tried to hammer down, the way of the sort of talk we’re hearing this afternoon from the Opposition benches, but they didn’t. Again, I’ll go back to Mr Simeon Brown talking about the deaths. They were getting huge deaths from heroin overdose. What did they do? They actually went down, and the doctor João—I forget his surname—came out here, and I was actually able to spend time with him in Portugal. They actually took another approach, and do you know what? The number of heroin deaths actually almost disappeared. It was almost an accidental approach. This guy was running something down in South Portugal, and they said, “It seems to be working down there. Bring it, and let’s run it nationally.”

Look, it hasn’t solved everything. They do have heroin problems. A good example, for those who go to Europe: you can always tell a country that’s got a heroin problem, because you go to the local railway stations and there’s always a lot of people running around and they seemed to have really baggy backsides in their jeans, because that’s a symptom of drug problems. A symptom of people with a lot of heroin issues is they stop eating. That’s the first thing that happens. So just go and have a look. Actually, when you know what you’re looking for, you can see where we have a drug problem.

In New Zealand, we have a major problem with methamphetamine. We have a major problem with synthetic drugs. Nothing we have done—for methamphetamine, we’ve made it life imprisonment; we’ve upped all the sentences with methamphetamine. Mr King, look at the seizure that you got in the North on the Ninety Mile Beach. It was a massive seizure. It was half a ton of methamphetamine. Do you know what effect that had on the price and availability of methamphetamine in New Zealand—the seizure of half a ton of methamphetamine? Absolutely and utterly none.

So here you have colleagues sitting on your right saying, “Soft on drugs. Soft on drugs. Soft on drugs.” Well, you know that the police in Northland were not soft on drugs. You know that the police in New Zealand were not soft on drugs. And yet it made no difference. So can I just say—and I’ll implore those members on the opposite side—can you actually sit back and think what you could do. I would like to think that we all came to this House to do one thing: to make for a better country. Sitting and talking, saying “Soft on drugs. Soft on drugs.” like some little thing in a circus—it just simply doesn’t work.

Can we just get together on this one, please, and let’s take it out of politics, because if we politicise it—and, look, Oppositions, and Labour Oppositions, have been guilty of this in the past; go around the world, police associations have been guilty in the past. Anyone who has been looking for a bit of air time on this, they will say the same thing: “Hard on drugs. Hard on crime.” Well, actually, it doesn’t work. So can we please agree that there has to be a better way.

I look at this legislation. Look, in about 2012-2013, we had a major problem with synthetic drugs. Actually, do you know why it was able to be fixed—not completely fixed, but, actually, the situation was improved considerably? At that time, the suppliers of synthetic drugs were mostly legal. Remember back—you used to be able to go down to your dairy and buy it. The first time I saw it, my son had it. He had bought it, and he told me, showed it to me, that he had bought this legally, this stuff. That was the first time I understood. I was getting youth aid officers around the country ringing me, saying, “We’ve got to do something about that.” Actually, the legislation that went through at the time—because it banned legitimate dealers, legitimate suppliers, from dealing in the drug—in the short term had a very good effect. Actually, generally, synthetic drugs—while they didn’t disappear—they were diminished considerably in the market.

But then what happened? Actually, do you know what did happen? The Christchurch earthquake happened. And do you know what happened in the Christchurch earthquake? Drug testing. A lot of the workers that came from overseas realised that with synthetic drugs—cannabis would show up, other drugs would show up, but these synthetic drugs wouldn’t show up. And, actually, that’s one of the big problems we have. That’s why people who know the risks are prepared to use it: because they know it will actually pass your drug test. What I’ll say: the one that won’t, two weeks later, is cannabis. So you can take this extremely dangerous substance that will kill some of its users, that does kill some of its users, but, actually, you can still climb up a building, you can still climb up on the scaffolding, and use this stuff.

So this is how integrated it is, and this is how stupid it is for people to sit and say, “Soft on drugs. Soft on drugs. Soft on drugs.” It’s a stupid thing to say, and I would ask the Opposition to stop saying it, because it is going to be the one thing that is going to prevent a decent, joined-up approach to doing something about this problem.

For a member to stand up and talk about that, yeah, 85 or however many, 80-odd, people have died, and to think that passing one little bill that was going to increase the sentencing to eight years was going to make an iota of difference, well, I’m sorry, there’s too many other things at play—the things that I’ve talked about, notably the drug-testing regime. Nothing will work in isolation. To sit there and say “Soft on drugs. Soft or drugs.” is just the most stupid, damaging thing to do. I will request those opposite to stop doing it, because the real victims will be those who will die, because if we end up so polarised on this that we end up doing nothing about it, then, actually, the situation will continue to deteriorate. And the situation that Matt King and Mark Mitchell and myself worked on for years, and now have to admit has not really made an iota of difference, will continue. And we, the whole of this House, will have missed an opportunity to actually try to do something that is not only going to reduce deaths but is actually going to reduce harm. Let’s all agree that it would be better if fewer drugs of any type—illicit or otherwise—are used.

I could talk about OxyContin—a legal drug that is now highly illegal that actually caused more deaths than this in the United States, and caused more problems than that. That was a legal drug, and that, again, caused—for another time perhaps. I commend this bill to the House.

Thank you, Madam Speaker. Well, that was interesting, and it just goes to reinforce the fact that this Government has gone soft on drugs—soft on drugs; soft on crime. Just a brief note: even their firearms reforms—more responsibility and cost on law-abiding Kiwis; nothing at all on gangs and genuine criminal activity. Here we have a complete approach of going soft.

To listen to Mr O’Connor speak, what you could take from the extension of the logical argument is do nothing. I heard him say half a tonne of meth is not worth stopping, and possession is not worth worrying about. This bill, which is under the cloak—and it is a mere cloak; a disingenuous cloak—of trying to treat matters of addiction and problems as health issues, is simply an attempt to decriminalise the use of all illegal drugs while nominally still claiming that they are illegal.

There is simply no way—there is simply no way, and this is in the words of the police representatives themselves—if this passes, that police officers are going to be focused on even attending to these sorts of matters. Give me one example—one example—where it will be able to be argued that a therapeutic approach is not more beneficial to the offender than other measures.

Chlöe Swarbrick: That’s the point.

It’s never going to be argued—never going to be argued. So, Ms Swarbrick, that is why it is decriminalisation of all drugs by stealth. It will never be the case that a legal action against someone caught in possession of illegal drugs will ever actually go down a prosecution path.

I’ll tell you another difference with Portugal, which Mr O’Connor claims to have visited but perhaps didn’t study, is the reason Portugal’s approach is quite different to this one is it has a sliding scale of actions on being caught in possession. If the offenders don’t follow those, then they end up with the same sort, actually, of criminal convictions as used to be the case, potentially—although they do have the opportunity on several occasions to mend their ways, shall we say.

But this is simply an excuse by the Green Party, that has long wanted to legalise all drugs in this country, that by stealth are simply going to decriminalise this. They’re not going to make the problems go away. Not dealing with the problem is not going to make it go away. Taking a soft approach is not a corollary. If Mr O’Connor is to be taken at face value when he says that everything we’ve done to date doesn’t work, and it isn’t a proven case, then, that by doing the opposite it’s going to get any better. In fact, if you remove the barriers to demand, the only thing we should expect out of this is that usage will increase. And it won’t go through the roof: this is not an argument that we are going to have streets full of addicted and intoxicated people, but it will reduce a barrier to demand, and we can anticipate that there will be more of it. We oppose this bill. We certainly will not be commending it to the House.

Thank you, Madam Assistant Speaker. I thought that I would commence my contribution today by reading—as the member Chlöe Swarbrick did—the part of the bill that has caused so many problems. This is perhaps for the benefit of the Opposition, who do not appear to have read the bill. So I’m going to refer to clause 6, “Section 7 amended (Possession and use of controlled drugs)”: “(5) To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a), and a prosecution should not be brought unless it is required in the public interest. (6) When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial.”

I have read that out for the benefit of the Opposition, and now I will turn to the decision-making tool that occurs when a police member is looking whether to prosecute. So “Is it in the public interest to prosecute? The relevant public interest considerations, which can be properly taken into account”—and the police offered this to us—“by decision-makers, will vary from case to case. As per the Solicitor-General’s Prosecution Guidelines, examples of considerations of matters that may be relevant include”—so, this is in favour of prosecution. I am making this very clear: in favour of prosecution—“The offending was of a serious nature, taking into account the gravity of the maximum sentence. There are grounds for believing that the offence is likely to be continued or repeated. The defendant has relevant previous convictions, diversions or cautions”—i.e., they haven’t taken the message of a health-based approach—“The offence was an incident of organised crime”—so that speaks to all of the issues that the Opposition have spoken to in concern about this matter, and—“The offender has created a serious risk of harm.” So those are the matters that are in opposition to what has been said across the Chamber.

So for the “Public interest considerations against prosecution”: “Proper alternatives to prosecution are available—for example, a health-based or therapeutic approach would be more beneficial than prosecution. The defendant has no previous convictions. The offence is not on any test of a serious nature, and is unlikely to be repeated. The harm can be described as minor and was the result of a single incident. The defendant is a youth.”

So I would like to just look across the Chamber and talk to the members and say that we really considered this. We looked at this discretion that the police currently use, and I have read out the current guidelines. The reality is that this is what the police do. They are currently doing this to fix and solve problems that they see. My colleague here, Greg O’Connor, was very clear: the 40-plus years that he spent in the business of policing, and the war on drugs has failed.

When we came to discuss this bill, we were very clear that, actually, we needed to look clearly and consistently at what needed to change. The effect of that has been, quite simply, three things. First of all, we have—and I’m not going to say the names of these two synthetics, because they have quite long names and long letters—

Chlöe Swarbrick: AMB-FUBINACA.

No, I’m not going to do it. These drugs have been moved from class C into class A, so that means they’re a serious drug. But the important second part of this bill, which the Opposition also agreed to, and which I feel we haven’t really sort of talked about at this point very much, is the new temporary classification for new and emerging drugs. We heard from the Opposition—quite clearly, they talked about us not moving with urgency, and then we were moving too slow; all sorts of things—but, actually, this is the piece of legislation that enables the Minister of Health to quickly gazette and record these drugs while they’re still under testing, to identify where there is risk and harm, and to get these drugs put into a special category. That gives better search and seizure opportunities for the police, and that actually is about being very clear that we want to fix the harm.

The third part is about what I have just spoken about: very simply, the opportunity to offer a therapeutic response to people’s drug addictions. Very simply, that’s all it does. It’s a discretion that is applied, and it is applied constantly by the police on an everyday basis. If we look at the 95 submissions that occurred, and the 59 submitters who came and spoke with us in person, it was, in fact, really clear that the thing that a lot of the submitters were concerned about was more about that there wouldn’t be bias applied, as opposed to the fact that a discretion was being applied. And so we had a good conversation about it. There are guidelines and further work the police are doing. Also, make no mistake: the police who were advising us in the select committee were very clear that this would not affect anything in their day-to-day operations, nor would it do anything that was going to cause them undue difficulty, harm, problems, or operational issues. This was business as usual and they appreciated it being codified for them.

Now, I have another quote. We were quite concerned about whether in fact we were getting it right, so we got an opinion from Crown Law. Crown Law very clearly identified for us this prosecution standard. This is what they have said to us: “While there is probably little real difference between a direction to prosecute and a discretion not to prosecute, the guidelines refer to the discretion to prosecute in order to make it clear that there is no presumption either in favour of, or against, a prosecution in any particular case.”

So, therefore, quite clearly, the concerns of the Opposition have been, at the advice of the Solicitor-General, quite clearly refuted. I have moved off the Health Committee, and I have enjoyed my time with the Health Committee, and it is a real shame to me that the Opposition are being so bull-headed around this particular clause.

I believe that they are taking a decision which is not founded in the law. It’s not founded in the opinions that we’ve been given. It’s not founded in the discussions we had, and I’m really sorry that I am leaving the select committee, because we’ve worked very collegially, generally, and it has been very interesting. We’ve had some very interesting debates and conversations, and generally work very closely together, but in this instance I’m quite saddened that this is probably the last time I’ll speak on a piece of health legislation and I’m having to stand up and explain what the Opposition so very, very clearly knows we discussed. They have refused to accept the way that this bill has been written, and the fact that a therapeutic response to drug taking is important and is useful, yet we will still be hard on these people who are dealing in this misery. It is very important, and that is in the legislation too. I commend this bill to the House.