Misuse of Drugs Amendment Bill

This bill makes three key changes. The first is that it will classify AMB-FUBINACA and 5F-ADB as class A drugs. It also affirms the existing police discretion for personal possession and use drug offences, and it also enables temporary class drug orders to be issued to better control emerging and potentially harmful substances.

The bill itself is a key step in putting in place a health-based approach to drug use, recognising that those people caught in the web of addiction are more likely in most cases to need a therapeutic approach when the wider public interest is taken into account, bearing in mind that, of course, there will be times when it is more appropriate for the police to prosecute if they deem the public interest falls that way. The increase in opportunities for health and social services to be provided is something that the Government is firmly focused on and, indeed, has invested heavily in in the recent Budget.

I just want to say briefly something about each of those three key changes and Supplementary Order Paper (SOP) 288, which I have brought before the committee. Firstly, the classification of the two aforementioned drugs, AMB-FUBINACA and 5F-ADB—these drugs are a major health problem. Since 2017, in June, there have been a total of 50 to 55 deaths provisionally linked to the use of these two dangerous synthetic drugs, and the bill simply classifies them as class A drugs to reflect the high risk of harm that these drugs cause. It gives the police and customs search and seizure powers greater than they otherwise would have, which means that they’re able to disrupt supply and reduce the availability of these drugs. Now, these police powers are part of a health-based approach. Interrupting supply and manufacture is critical if you want to take a health-based approach.

The police discretion, the second thing that’s involved here—the bill specifies that when considering whether a prosecution is required in the public interest for drug possession and use, consideration should be given as to whether a therapeutic approach would be more beneficial. The SOP I’m bringing to the House does then further add the words “to the public interest”—beneficial to the public interest—and that is just to be absolutely clear. This is not about, when police are deciding whether or not to bring a prosecution, whether it’s good for that individual, but they’re looking at the wider public interest. There were some submissions to the select committee that seemed to assume that what was being meant there was a focus on the individual’s personal interests—who was the person caught as a user, caught in the web of addiction, and being brought to justice—rather than looking at the wider public interest. I do want to thank, as we work through all these issues, the coalition and confidence and supply partners and the conversations we’ve had. This particular clarification comes in consultation with our coalition partner, and I want to thank them for the constructive role they played in making sure we have this clear, and, of course, the strong push for a health-based approach is also firmly supported by the Green Party, and I want to acknowledge that.

So the third thing that we’re doing here is putting temporary drug class orders in place, which enables the Minister of the day to issue a drug order that, effectively, makes sure that these dangerous synthetic drugs, or any drugs, are classified as class C controlled drugs—or treated the same, essentially—for a period of 12 months. We know the drug market—in particular, the synthetic drug market—evolves rapidly, and we want to make sure that we’re able to respond quickly to potentially harmful new synthetic drugs. Then the Minister must seek advice from the Expert Advisory Committee on Drugs, which considers classification issues, and decide then whether and under what schedule the substances should be classified longer term.

I’ll leave my initial contribution there. I do think this is a good bill. It allows us to progress a health-based approach and strikes a balance, making sure that we are actually going harder on those peddling these very dangerous drugs—the suppliers and the manufacturers—than has previously been the case, to ensure the police have the search and seizure powers necessary, but it also looks at the public interest and whether it’s sensible for those who are users to be offered a therapeutic approach.

Thank you, Madam Chair, for the opportunity to take a call on the Misuse of Drugs Amendment Bill, which is slowly progressing its way through the House. I thank the Minister for the explanation and overview that he gave on this bill. I would like to ask the Minister a few questions, and I think it’s important to go through these systematically. The first question I’d like to discuss is in relation to the part of the bill which the National Party does support, and that is in relation to the increased penalties that are going to be put in place.

Chlöe Swarbrick: Punishment.

“Punishment” is what your confidence and supply agreement partner there calls it, Minister. So the question here is whether we support the increased penalty or reclassification of AMB-FUBINACA and 5F-ADB as class A drugs, which the National Party does support. The question that I do ask the Minister here is: why did he decide to use this process, the legislative process, to classify those two substances as class A drugs, and why did he not use his powers under the Misuse of Drugs Act to classify those drugs when he received advice, I think in April or May last year, that they should be classified as class A drugs?

So I guess the point that I’m making here is that this issue has been before the House for quite some time. This issue was a matter which I brought to the House through a member’s bill last year, which was supported by New Zealand First for the vast majority of its process through the House before they pulled their support. But I guess the question here is: why has the Government not taken the urgency which it said that it would do in relation to actually taking these two substances seriously? We know that there have been around 80 deaths—80 deaths—caused by those two substances over the last—

💬 Darroch Ball: What was your bill going to do?

—18 months. Take some action, Mr Ball, and actually deal with these issues. But what’s happened here is that the Deputy Prime Minister, Winston Peters, your leader, said on 31 July last year that this issue would be dealt with with urgency and unction, and here we are—what’s the date today, Mr Bayly? Oh, it’s 7 August 2019. And now we’re here, finally—sorry, it’s 6 August. I should always consult the Hon Michael Woodhouse on these issues. He is a numbers guy. He is an accountant and used to run a hospital, so he’s a fantastic man.

But I’d like to bring it back to the point here that this issue has been before the House, and it is good that it is finally being dealt with, but the question does need to be asked as to why the Minister did not use his powers under the Misuse of Drugs Act to classify these drugs overnight through the process that he had.

My second question relates to the new class C1 orders, or the temporary class drug orders, which are also being put in place and which the National Party is also supporting under this bill. My question relates to the process it’s going to take for that to actually come into effect. The Minister will get advice, a new drug will be presenting, and there will be harm being identified. How quickly will it take for the ministry to be able to put in place, or for the Minister to put in place, a temporary class order to classify those drugs? And then how long will the process be for those drugs to actually be able to be assessed and then actually be classified? I understand in section 4F, “Duration of the temporary class drug order”, it will be for approximately a year. Is the Minister confident that that is enough time—seeing that it has taken over a whole year since the Minister received advice on AMB-FUBINACA and 5F-ADB—to give them the classification that those two incredibly harmful drugs actually deserve? So I leave that as my first call, and I look forward to the Minister’s responses. Thank you.

E Te Māngai, tēnā koe. Tēnā koutou e Te Whare. It’s a pleasure to speak on behalf of the Greens on this, the committee of the whole House stage of the Misuse of Drugs Amendment Bill, and I think that I actually can be of some use in addressing the questions put by the member Simeon Brown, because the Minister is on the record a number of times speaking to that point. But also I think that it would be quite useful to take him through a history lesson as to how the expert advisory committee came to be and what its powers actually are, given that he consistently refers to them.

So the member, the National Party member Simeon Brown, asked why the Minister chose this legislative process to reclassify the two chemical compounds that are implicated in the deaths of nigh on 100 New Zealanders. He noted that the National Party supports the increase of penalties for the supply and production of these two chemicals, but he doesn’t note that the National Party doesn’t support what is perhaps the most important part of this legislation, which deviates from his own member’s bill, which he referred to, as well, multiple times—that being the ability for those who are caught in the web of addiction to access help and to access treatment and the codification, the explicit codification, of police discretion to choose to put people down that therapeutic pathway.

So to let Mr Simeon Brown know, the expert advisory committee came into effect in the early 2000s as a result of amendments to the Misuse of Drugs Act 1975, an archaic piece of legislation by any measure, especially given the huge swathes of evidence internationally that have progressed with regard to drug harm reduction. But the expert advisory committee was established with the powers limited solely to recommending where substances should be classified in relation to other substances and where they are classified.

The expert advisory committee, simply put, cannot recommend anything but classification. They are limited in being unable to recommend alternative, better harm reduction measures that are evidence-based. They can literally only refer to harm and where within the classification of other substances the substances that they are speaking to should be classified. I find it an interesting point raised by the member of the Opposition, but that brings me particularly to the part which the Opposition doesn’t support—probably because it actually requires taking some action that would actually make a difference.

I’ll refer now to Supplementary Order Paper 291, in the name of the Hon Paula Bennett. I hope that she does seek a call on this, given that it is in her name, because what this Supplementary Order Paper actually seeks to do is remove the most important parts of this legislation, in that it seeks to remove or delete clause 6, which legislates police discretion. There’s a little bit of misinformation—might be one way to put it—in the explanatory note that the Hon Paula Bennett has put together, because she says “which legislates police discretion not to prosecute for the possession and use of controlled drugs.” That is not quite true.

For the fourth or fifth time, I will read out to the members in Opposition what clause 6 actually does explicitly per this legislation as drafted. It says “To avoid doubt,”—the members may want to read this—“it is affirmed that there is a discretion to prosecute for an offence against this subsection (1)(a), and a prosecution should not be brought unless it is required in the public interest.” Interestingly enough, when this was being debated in the first and second reading, the Opposition, the National Party, sought to say that this made absolutely no change whatsoever to how the police currently operate. They sought to say that this makes absolutely no change, but then they simultaneously, on the other hand, said that it was a huge fundamental change.

So I put it to the members of the National Party opposite to get clarity and coherency of their position on this legislation. Ultimately, fundamentally, do they want to punish people who are caught in the web of addiction? What this legislation does is make it explicit that the police have the power to prosecute as a backstop; otherwise, they should be directing to a therapeutic approach.

Thank you, Madam Chair. Well, thank goodness for Chlöe Swarbrick! There we are, wallowing in a sea of ignorance and in darkness about what on earth we’re trying to achieve here, and thank goodness Ms Swarbrick comes along and shines a big bright light on this bill. I feel so much better because of that thorough telling off that we just got for not understanding her view of this bill. That’s kind of exactly what we’ve heard.

Now, I want to concentrate on clause 6, in Part 1, mainly because that’s the only bit we disagree with. I think we’ve made that very clear. In order to just clarify the last point that Ms Swarbrick made, the question was put by way of a question: are we here at the first reading of this bill to codify existing practice, or are we here to make, as she describes, the biggest change in drug law reform in 40 years? So I am very confused about that. I will concede defeat on that, because the Minister says one thing and the Green Party representative says another.

Chlöe Swarbrick: They’re not mutually exclusive.

Well, they kind of are. We’re either making a massive change or we’re not. I think we know the answer, and I think members on this side have been very clear what we are doing here. This is the de facto decriminalising of drug possession.

The member, in reading the clause, pointed out one of the key differences between this and normal police discretion, because the words in new section 7(5), inserted by clause 6, say “it is affirmed that there is a discretion to prosecute”, as if New Zealand Police didn’t know that. It’s an offence under the Misuse of Drugs Act—of course there’s a discretion to prosecute. When we see the codification of police discretion, those words inevitably say there is a discretion not to prosecute, and that matters.

I worry—and I mentioned this in my second reading speech—that we are actually conflating the sorts of constitutional separations of powers between this legislature and the executive as carried out by the New Zealand Police, and it is entirely inappropriate for this place to lay out what police should be doing on laws that we pass. The constitutional convention is that we pass the laws, they interpret the laws, and they use their constabulary discretion in the way they see fit. Now, when we add words to the clause that say police should not prosecute, we are sending them a very clear signal. One of the things we heard about in the Health Committee was the degree to which there is a form of unconscious bias in the disproportionate number of Māori and Pasifika that are charged under the Misuse of Drugs Act for drug possession. I have no such concern. I have no such concern now, because police won’t be prosecuting anybody.

Now, I will ask the Minister of Health this, because he has now introduced Supplementary Order Paper 288 and, frankly, I am completely flummoxed about what on earth this change means. He says “In clause 6, new section 7(6), after ‘more beneficial’ … insert [the words] ‘to the public interest’.” The explanatory note is extraordinary. It says “This Supplementary Order Paper adds some clarifying words”, and that’s all it says. It doesn’t say why it’s adding the clarifying words or what is intended by this amendment, and so I would, wallowing in my ignorance—I’m sure Chlöe Swarbrick may want to take another call, cut across the Minister, and tell us all what we’re doing here, because she seems to be really good at that. But I genuinely want to know, because, obviously, the Hon Paula Bennett has an amendment to clause 6 that I will talk about in a future call.

But I am fascinated by this amendment—SOP 288—to add the words “to the public interest”, because it may materially change what we’re doing here. I don’t think it’ll change our concern, because remember that the words are already in new section 7(6), inserted by clause 6 of the bill: “When considering whether a prosecution is required in the public interest,”. It seems to me that a health-centred or therapeutic approach is now not beneficial to the individual, who could be the subject of a charge under the Misuse of Drugs Act. The health-centred or therapeutic approach is now beneficial in the public interest—or, rather, to the public interest—and I’d appreciate an explanation.

Thank you, Madam Chair. I didn’t think that I’d ever see the day that a former National Party Minister of Police disagrees with the Police Association and disagrees with the police themselves. We’ve got the National Party wanting to delete all of clause 6 in this bill. Here’s what the Police Association say about one of those parts in clause 6: “The association supports [that clause] which reconfirms the public interest test and adds as a relevant matter, consideration as to whether a health-centred or therapeutic approach would be more beneficial”. The Police Association supports the clause, or part thereof, that the National Party wants to get rid of. The police themselves—

💬 Hon Michael Woodhouse: Which paragraph?

Paragraph number 18 of the Police Association submission. Then the police themselves, their submission on the bill: “The intent of clause 6”—which is the clause that the National Party want to get rid of—“affirms the existing approach to police prosecutorial discretion, emphasises that consideration of a health-centred or therapeutic approach is a relevant part of the public interest test under the Solicitor-General’s guidelines.” All it is doing is reaffirming what the police already do. The police know and support that clause, because it just reaffirms what they do. The Police Association supports that part of the clause.

Now, that points to one of two things: that the National Party is ignoring what the Police Association is saying and ignoring what the police are saying, or—which I suspect is the case—they’ve lost their way. The National Party has an identity crisis, personified by their leader. Nevertheless, they have lost their roots—right? The National Party want to stand up here—and Simeon Brown tried to do it in the previous speech that he’s given; I’ll address that in a second—and say that they are tough on crime, that they are tough on drugs, and that they back the police 100 percent, but they don’t fulfil what their intent is with what they’re saying when the Police Association and the police themselves disagree with what they’re saying.

I want to move on to Simeon Brown and what his contribution was—a brief contribution tonight. I put up with a lot of things, but what I can’t put up with is the continued faux outrage from Simeon Brown about New Zealand First not supporting his bill and about his bill addressing the issue of synthetic cannabis and how his bill would’ve solved all of the issues that this society and country is facing in regards to synthetic cannabis. Can I just say a couple of things. Firstly, all that Simeon Brown’s bill was doing was moving the maximum penalty from two years to eight years in prison. That’s all that that member’s bill was doing to address the complex issues of synthetic cannabis and the problems that it was causing, and the 80-plus deaths that it was causing.

Now, the other thing that he said was that it would’ve happened speedier. Well, on the one hand, you’ve got the National Party this afternoon talking about the processes of democracy and the House going through the select committee process in a fast manner or truncated manner, and yet they get up there and want to have his bill and his third reading of the bill and the bill under his name go through in such a quick manner that it will solve all of the problems. That’s not how it works. We do this once, and we do it right. We go through a democratic process, we listen to the experts, and we come up with a piece of legislation that will deal with the multiple issues that synthetic cannabis brings to this country.

We do that in a couple of ways. We come down hard on the dealers, we come down hard on the manufacturers, we come down hard on the peddlers of this poison, but we also deal with those who are suffering from the addiction of this poison. We allow the police the affirmed discretion that they already use and they have used under concurrent Governments—

💬 Simeon Brown: Why the change?

Oh, so that member agrees now? Does that member agree now that it’s just affirming what the police are doing? That member agrees that this legislation is just affirming what the police already have?

What bringing psychoactive substances into the Misuse of Drugs Act also does, that Simeon Brown seems to have forgotten, is it increases the ability and the powers of the police and others like customs for search and surveillance—something which the current Psychoactive Substances Act does not do, something which Simeon Brown’s member’s bill would not have done. It increases the penalties. This is the ironic thing: this bill that we’re talking about, this amendment bill, increases the penalties for the suppliers and manufacturers of psychoactive substances into a class A, which is life in prison. Simeon Brown’s original bill was only going to go to eight years. There is no logic in them not supporting this bill.

What I’d like to say is that the Labour Party and New Zealand First Party had multiple discussions about this bill, and we’ve come up with a bill that deals with the multiple layers of issues that the Misuse of Drugs Act needed to be brought into line with, and we’ve done that with clause 6. But it also clarifies to a very good level in the Supplementary Order Paper (SOP) that the Minister of Health is bringing in, Supplementary Order Paper 288, what the intent is of clause 6 of this bill, which is to give the police the discretion that they already have and the ability to use their discretion, which benefits in the public interest. We need to understand that: that the arguments from the National Party have all been about this bill allowing de facto decriminalisation. That cannot be the case when they see this SOP and how it is written and the detail in this SOP, where it gives the police that discretion when it is in the public interest. How can it be decriminalisation if there is a prosecution available for the police and they would use that and they would prosecute if it was in the public interest? New Zealand First supports this bill, we support the SOP that the Minister has put forward, and we don’t support the SOP that Paula Bennett has put forward, SOP 291. Thank you, Madam Chair.

Thank you, Madam Chair. I just want to respond to some of the questions that have been raised, in particular those raised by the member Simeon Brown. The member asked why we used the legislative process for classifying the drugs as class A rather than an Order in Council process. I want to advise the member that the Order in Council process, officials have reminded me, can take up to a year. It is something that goes through a select committee process after it’s issued by the Minister, and then after consideration by a select committee it is confirmed by the House by affirmative resolution. So, you know, that does take a period of time. This way meant that we had a clear time line when we put the legislation in.

It’s also true, of course, that the peddlers of these substances, as has often been covered in the debate, change the nature of them swiftly, and these substances are known to be harmful. When we announced our response as a Government, we also announced at the same time that we were going to put funds into a drug early warning system—I want to thank the Drug Foundation for their contribution to that piece of work—and also have money put aside for swift community responses to outbreaks where it was clear that users—desperate people on the street—were having really negative effects from these drugs. We know, as I said at the outset, that there have been, provisionally, many dozen deaths linked to these drugs so far. So whilst these drugs may or may not be frequent on the streets now—we think less likely than they were earlier—they’re still very dangerous drugs. So it’s still appropriate to classify them as class A, and, in fact, this may be the most efficient way of doing it.

The second question the member raised was: will the temporary drug class order for a year be long enough? I would think, ordinarily, yes it would. You know, it’s going to be long enough for the committee to meet and for us then to change the class of a drug. I’m sure a temporary order could be sought subsequently again if that was needed. So it’s to enable swift responses to new substances coming into the country.

The member Michael Woodhouse raised a question about Supplementary Order Paper (SOP) 288 and asked what it meant. I did explain that in my opening comments, but I appreciate the member may not have been in the House, so I’ll just repeat that—

💬 Hon Michael Woodhouse: Wasn’t listening—yeah.

—sorry, may not have heard that. So I’ll just repeat that the reason that that SOP is there is to clarify, because some of the submissions to the select committee had assumed that what was being weighed up here was a private interest for the individual and the fact that they might benefit from treatment against the wider public interest, when, in fact, it’s actually the public interest which is the overriding test as to whether that person should be guided towards therapy. For example, if that person had resisted some kind of therapeutic approach previously and was engaged in domestic violence, the police clearly would be likely to then pursue a prosecution because that would be in the public interest and the individual’s private interests would be secondary. So it’s really just to clarify, because it seemed that some of the submissions were not clear on that point. It’s belts and braces, if you like, but we think belts and braces are a good idea if that means that everybody understands the intent of the law in the same way. So I do repeat that, but I appreciate the member may not have caught that at the time.

So those are the questions that have been raised up until now in the debate. I shall let the debate continue.

Thank you, Madam Chair, and I appreciate the Minister in the chair’s clarification. I did not hear that original explanation, but it probably wasn’t only the submitters that were confused about whether or not the test of a therapeutic benefit was a personal test rather than a public interest test. That has not been brought up, in my recollection, by either the officials or anybody else in relation to this, and that is a significant change to the intent of clause 6. I have now the regulatory impact statement and the departmental disclosure statement and, indeed, the Cabinet paper, and I’m going to test whether that was the original intent. But, nevertheless, I appreciate the Minister’s clarification.

I want to touch on the matters raised by Mr Ball in his intervention—in particular, a rather selective section of the Police Association’s written submission, specifically paragraph 18, in the sense that he believes that as a consequence, the association actually supports this change. Actually, the Police Association are very nuanced in their submission. They neither support nor oppose it. I think they’re probably more forward-leaning than in opposition to it. But I draw the member’s attention—he wasn’t on the Health Committee—to paragraph 15 of that written submission, which says, in respect of the expectations around not prosecuting, “This reinforces the association’s concern that this bill is effectively decriminalising all drugs for personal use and tasking front line Police officers with enacting that.” In the oral submission, Chris Cahill, in his submission, described this as compulsory discretion. There is no doubt in the Police Association’s mind that this constitutes, effectively, decriminalising drug possession.

He wasn’t alone. Drug Foundation head, Mr Bell, also, in supporting that approach, actually said in his written submission that this was a move away from a presumption of prosecution to a presumption of non-prosecution, which, as I say, is constitutionally conflated. When I asked him—and this is in relation, actually, to the personal versus the public interest question on therapeutic benefit—whether there was a single situation that the New Zealand Drug Foundation could think of where a user would not benefit from a therapeutic approach, the answer was no.

I think the third significant submission which reinforced our concern about de facto decriminalising was that from the New Zealand Law Society. I asked the submitter whether, as a good defence lawyer that he was, he would use the new section to defend anyone charged with drug possession on the basis that the prosecution should not have taken place because his client, or her client, would have benefited from a therapeutic approach and would he, or she, be able to drive a bus through that prosecution. The answer was yep, absolutely.

As a consequence, of the thousand or so drug possession only charges—and remember, drug possession is often part of a suite of charges that are laid, including, perhaps, property offences, assault charges, and dealing, potentially, if its possession for supply. There are still nearly a thousand prosecutions a year for possession alone, and, in the beliefs of the submitters—and those three in particular—there would be almost none of them once this bill has passed.

So we need to be very clear about what we’re doing here. I lean towards Chlöe Swarbrick’s view that this is the biggest change to the Misuse of Drugs Act in 40 years. But, if it’s not, and if this merely codifies police discretion and does what they’ve always done, which is what the Government—or at least some members of the Government—say, then that’s fine. We don’t need clause 6. So Paula Bennett’s amendment in her name deletes clause 6. It does just that. It simply restores the very police discretion that the Government and the Minister says that the police have. That clause is redundant. If we take it out, the National Party can support the bill.

Thank you, Madam Chair. As the chair of the Health Committee, it’s been my absolute pleasure to shepherd through the Misuse of Drugs Amendment Bill, and can I firstly acknowledge the officials in the House tonight, both from the Ministry of Health and police, who did a fantastic job. I think it’s incumbent on me, actually, to talk about why we’ve reclassified AMB-FUBINACA, and 5F-ADB as class A drugs, and, by definition, they are very high-risk illicit drugs. We’ve seen fit to include these synthetic cannabinoids within that definition because, since June 2017, over 50 New Zealanders have lost their lives.

What this piece of legislation is attempting to do is those two things, and I’ll highlight those. Firstly, we are, and have, reclassified to enable the police and customs to have greater search and seizure powers. Why have we done that? Because we need to disrupt supply. We need to reduce the availability of these drugs to minimise harm to the public. We also are very clear that we do want to punish those who are involved in this illicit drug trade, but, from our perspective, they must be the importers, the manufacturers, and the distributors of those particular products.

I was a bit neglectful to also acknowledge the National members of the Health Committee, because, in fact, they recommended the amendments set out in our report, but they just don’t support the bill, and therein lies the other aspect of the bill I want to highlight, and it is clause 6, which amends section 7 of the primary legislation. Essentially, the first part of the bill is about punishing those we want to punish. The second aspect is about helping those that we think need help. So who are those people? Well, actually, they’re the addicts. They’re the people that do possess and use these products. As you’ll see in amended clause 6, new section 7(5), “To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a),”. Subsection (1)(a), by definition, is the possession and use of controlled drugs, and, I quote, it’s about “procure or have in his possession, or consume, smoke, or otherwise use, any controlled drug;”.

So what are we talking about? We’re talking about individuals who procure—that means they’ve obtained an illicit substance; they’ve bought it. They possess, which means they have it on themselves; they hold it as property. And they consume, which means they use it. That’s what this section is doing. So call it a de facto decriminalisation; we call it helping people who are addicts. The Minister has seen fit—and I do want to acknowledge our coalition partners, New Zealand First—that in clause 6, new section 7(5), we have now added to the end of that particular amended section “to the public interest” under Supplementary Order Paper 288, in the Minister’s name.

So what is the public interest? Well, by definition, the public interest is the welfare, or wellbeing, of the general public. So the question we need to ask ourselves is: is it better for all of us that those people who procure, possess, or consume these illicit, or very high-risk illicit, drugs—is it in our interest—get the help that they need? That is what’s contained in clause 6, new section 7(5) and (6), “whether a health-centred or therapeutic approach would be more beneficial.”, because the current opportunity cost to that option is we have 11 percent of our current prison population. These are based on figures from 30 June 2019. There’s 9,969 people in prison, and 11 percent of those are in prison because of drug offences. Not all of them would be for—

💬 Hon Michael Woodhouse: Seven of them—seven.

No, it’s 11. You should have a look at the latest stats, Michael; I can send you the link if you’d like to see it.

So we are very clear on this side that it’s in the public interest for those people not to be in prison. It’s in the public interest for those people to get the help that they deserve, and that’s why this section is vital—vital—to this piece of legislation, because it says to the public, “The people that need to be punished—we will punish them. The people that need to be helped—we will help them.” Thank you.

Thank you, Madam Chair. I rise to speak to the Misuse of Drugs Amendment Bill at the committee of the whole House. I have been listening to this debate and following it through its progress in the House. I wasn’t on the Health Committee at the time it was going through, but I have followed it with great interest, and I certainly supported the bill of my colleague Simeon Brown which sought to put greater penalties across the people who were peddling the harm and increasing the misery.

It does seem to me that there’s an ideological divide here between our side of the House and yours, and that has been alluded to by other speakers as well, but I think that one of the things that we need to make clear is that here, in National, on our side, we have always supported greater rehabilitation. That’s why we put a lot of money into the way that drug rehabilitation was conducted in prisons. We don’t understand why the Labour Government removed that and did not support that ongoing rehabilitation. It is very important that addicts get the help that they need, but I’ve heard rather a lot tonight and in other calls in this debate about the web of addiction and the health-based approach for addicts, and while that’s all very well, people make choices and they do peddle harm and have to face those consequences.

So there are aspects of this bill that we agree with, and there are aspects that we do not. Some of the fundamentals we do agree on are around the therapeutic interest, but being beneficial to the public interest is something that a lot of speakers have touched on. What does it really mean? And how does a policeperson, when they’re out there on the beat—with a domestic situation, for example, or a volatile situation—make that call in the heat of the moment? How much responsibility are we putting on police to make a call not just about the two types of synthetic drugs that have been specifically named here but about all the other range of drugs that the police will be required on the spot to make decisions about, and whether it is in the public interest or not is a very hard thing. They don’t have, like the cricket and rugby referees, some kind of replay so that they can look back on it and immediately decide whether they’ve done the wrong thing; it’s too late, and that’s at the heart of what we don’t like about aspects of this bill. It is too late in what it’s trying to do, and it ignored one of the measures that Simeon Brown had put up that would have, perhaps, resulted in fewer than the 80 deaths that have occurred in the last 18 months.

Accessing help, therapeutic advice, and drug harm reduction we’re on side with. But the idea that clause 6—and the Hon Paula Bennett has put up an amendment to that, Supplementary Order Paper 291, which we support on this side of the House, which deletes clause 6, which legislates police discretion not to prosecute for the possession and use of controlled drugs. We believe it goes too far. We believe that many aspects of this bill are commendable, but that is not one of them. So, if there was any openness from the other side to look at that—if the Minister wanted to perhaps explore with us again what other nuances could be really brought into play here.

I heard the Hon Mark Mitchell talk about this bill the other night, and he outlined a personal difficult situation with a family member. We are all of us, as with many debates in this House, worried about what we’ve heard ourselves, what’s happened to members of our own family. Of course that informs our positions, but, to hear a former policeman describe a family tragedy and to understand what led to that and how difficult this particular law would have been to the prevention of some of the worst excesses of the people who are under the influence of drugs, for “the wider public interest” and “the wider public good” need to be removed from the equation.

So that was why we supported the notion of more than doubling the police sentence, as Simeon Brown had suggested, bringing it up at least to other drugs so that the message would be loud and clear and would be received by all of those who seek to peddle this misery: that this is something that will not be without consequences. Let the police have discretion, as they have had in the past and continue to use, but to the level that this particular piece of legislation allows it is, I think, unfair and unworkable, which is why we support the Supplementary Order Paper by Paula Bennett to delete the police discretion not to prosecute for the possession and use of controlled drugs. If that was removed, there might be an altogether different attitude from this side of the House.

Thank you, Madam Chair. Look, I’d like to take another call, following on from the contributions on this side, including the contribution by the Hon Michael Woodhouse in relation to clause 6, which is the issue which we’ve been traversing, which I think Michael Woodhouse has put very clearly: that if this is not such a major change, as the Minister is trying to put to the committee, then this should be withdrawn. I too rise in support of the Hon Paula Bennett’s Supplementary Order Paper (SOP) 291 to delete clause 6.

I would like to point the Minister’s attention to a couple of documents. Firstly, to the departmental disclosure document, under the heading “Part Four … Strict liability or reversal of the usual burden of proof for offences”, it clearly states that subsection (5) ensures the police can decide not to prosecute if either a health-centred or therapeutic approach is to be preferred for the person or the offence is inconsequential. It does not talk about the public interest here in this disclosure document. It is talking about “for the person”, and so the issue here that we continue to bring to the Minister’s attention is the confusion that this is going to be leading to for our police. While he is including another few words around the public interest, we want to highlight the fact that the police here will be having to make these decisions based upon the health-centred or therapeutic approach for the individual person.

I would like to also highlight the New Zealand Police Association’s submission—and it’s paragraph 16, if the member Darroch Ball is interested—which says, “With respect to those who do need drug rehabilitation and other forms of health care, officers know such facilities are scarce and not consistently available throughout New Zealand. Officers also know police cells are no substitute for health care.” So I bring those points to the Minister because what this highlights is the fact that officers are going to be put between a rock and a hard place, and we’re not just talking about cannabis here, we’re not just talking about class C substances; we’re talking about all classified substances in New Zealand. That includes meth, it includes cocaine, it includes ecstasy, it includes heroin—the whole list of drugs. Police will be put between a rock and a hard place, where they will have to make a call on whether there is a health-centred or therapeutic approach available—where their evidence says that that is something which can be patchy—or whether to prosecute.

So I ask the Minister to please explain to us whether the police will be making this decision in the public interest or on an individual case for the person, because that is something which I think this House needs a very clear answer to. But the SOP which he has put down actually only further confuses the situation which we have before this committee. This is a serious issue. As Michael Woodhouse has said, if this is simply just codifying police discretion, well, we already have it. This section is not required in this piece of legislation, because the police have to make these decisions every single day. But, if this is giving the police an additional test for all substances—and we heard this is for all substances—then that is something which is far more serious and is something which I believe this House should be taking far more consideration of, and also that the Government does have a responsibility to ensure that there is far better treatment available and far more health-centred or therapeutic approaches available consistently across the country so that the police are able to make that decision and to use that discretion as they will be required to under this piece of legislation.

So I ask the Minister to take a call and address those issues. He may talk about some of the investments which are being made. He may talk about the amount of money which was announced during the Government’s announcement towards the end of last year, but that was only, I think, $12 million or $16 million. That’s not going to provide the substantive support required across the country. The point I would make is that that change should be happening before we in this Parliament are changing the law to decriminalise all these substances.

The question was put that the amendment set out on Supplementary Order Paper 288 in the name of the Hon Dr David Clark to clause 6 be agreed to.

The Hon Paula Bennett’s amendment deleting clause 6, as set out on Supplementary Order Paper (SOP) 291, is out of order as being inconsistent with a previous decision of the committee.

I raise a point of order, Madam Chair. Without for a moment wanting to challenge your ruling, the question is an interesting one because clause 6 as a whole still hasn’t been considered, and, regardless of whether there was merit in the Minister’s SOP, the member Paula Bennett’s amendment is not subordinate or consequent on that decision. We still haven’t made a decision about whether clause 6 should proceed.

We’ve just agreed to amend clause 6, and the Hon Paula Bennett’s SOP is to delete it, so it’s inconsistent. The committee has just agreed to amend clause 6.

My question is this: had that amendment not been agreed to, would that have defeated clause 6? The answer to that is certainly not.

I don’t know how much time you’d like to spend on hypothetical questions. You’re welcome to contact me later. We have agreed on an amended clause 6. The Hon Paula Bennett’s SOP is out of order.