Drug and Substance Checking Legislation Bill

Kāti rā, tēnei te mihi ake ki a tātou. Members, when we suspended last night, the committee was debating Part 1 of the Drug and Substance Checking Legislation Bill, which is the debate on clauses 4 to 16, Amendments to Misuse of Drugs Act 1975.

Thank you, Mr Chairman. When we adjourned last night, David Seymour had asked a searching question about the application of proposed section 35DH in clause 10 of the bill, and he had wondered whether, in the references to an employee or volunteer of a service provider not being liable for anything they do or fail to do in the course of the performance or intended performance of the service provider’s functions, that meant they were off the hook for, for example, health and safety breaches. I am pleased to advise the member that no, they won’t be.

It’s important, of course—as former member of the House the Rt Hon Winston Peters used to say, words matter. So you have to look at all the words of a provision. If the member looked at the rest of the words in subsection (1) of the proposed new section 35DH, where it says “unless it is shown that they acted in bad faith or without reasonable care”—now, that’s in relation to the performance of the functions as defined in the bill, and those functions are set out in proposed section 35DB. Providing an employee or volunteer of a drug-checking service provider carries out those functions in good faith and with reasonable care, they won’t be liable for any act or omission on their part. It does not absolve them of the responsibility to comply with the requirements of the health and safety and employment legislation, which, of course, will apply to the host of the event and any other person conducting a business or undertaking that is operating around the event.

Well, thank you, Mr Chair. I’m sorry not to see Dr Smith take a call; I hope he will soon, because I’m particularly keen to hear his explanation of just how musical and festive a music festival would have to be to qualify under his amendment. Upon further examination of Dr Smith’s amendment, I’ve also noticed that it is an amendment to section 35DJ. That is the amendment that requires the testing to be done at a music festival—so, hey, 35DJ! We’re looking forward to hearing Dr Smith get up and explain his amendment.

But I would like to just drill down a bit further into the more serious matter that’s being discussed and that the Minister’s just very helpfully given a partial answer to, but I do wonder about the remaining liabilities for both the host of the venue and for other people who might comprise a person conducting a business or undertaking—for example, a testing service that the directors or management, that the volunteers and workers, have certainly absolved. But what liability do they have in the case where somebody avails themselves of a testing service and still goes on to be harmed by impure drugs? Because I just think it’s—you know, given the absence of a regulatory impact statement, given the absence of a select committee process, can we just tease out and understand what liabilities people—who I support, who I think should be offering their services—will face under the Health and Safety at Work Act, given this law? And the answer may well be no different from what they face now. If that’s the answer, I think hearing that from the Minister in the committee would be very helpful.

Thanks again to that member for the further question. I do go back to those words at the very end of that proposed subsection and proposed clause, or new section 35DH: “unless it is shown that they acted in bad faith or without reasonable care”. So there is an expectation that they will exercise reasonable care. We know, as a matter of law, reasonable care will differ depending on the qualifications, competency, or capability of the person. A medical professional who volunteers to assist with a drug-checking service will be held to a higher standard than somebody who has got a basic science knowledge, knows how to run the testing equipment, and can interpret a result and advise a person of the result. That is the reality. So I think the expectation with these testing services is that they conduct the test, they get the result, and they provide that to the person who has provided the sample or the drug for testing. There will be some advice or counselling about—first of all, advice about the content of the substance, then, second, about the health effects of ingesting it. Provided that is happening, consistent with the person’s skills, competency, and capability, then they have discharged their obligation.

If there is an adverse reaction further down the track, well, then, the person in the drug-checking service won’t be held responsible for that, because, in the end, it will be the choice of the person who has acquired the substance, sought testing of it, and then has knowledge of it, and what they choose to do with it after that will be on them. That is the regime that has been set up, and I think that member would accept that this is about saying to those people who do choose to use mind-altering substances, that is a choice that they take regardless of the lawfulness of the substance. We know that there are health effects, and the purpose of this is to allow an opportunity to provide health advice at that time, but if they make that choice, they make that choice. We want to seek to minimise the negative health effects, but I think reality and life tells us we won’t stop some people, or people within a cohort, from experimenting, trying stuff out, even if it has a predictable and obvious effect on them.

The part in which I entirely agree with the Minister is firstly about the fact that Parliament needs to be focused on minimising the harm, and the second is that words matter. I want to pursue a little further with the Minister the practical implications of Part 1, along a similar line as David Seymour raised, and that is its interaction with the health and safety workplace laws.

The reason I ask these questions is that when I talk to festival operators in the Nelson region, they are incredibly and properly risk-averse around the issue of drugs at such music festivals, like the Bay festival and the like, and rightly so because they are really nervous that if there is tragedy during their festival in which a young person takes one of these psychotic recreational drugs and dies, they will be legally liable. So they actually go to quite a lot of effort to try and keep those venues drug-free.

Here’s the tough question for the Parliament. I’d like a colleague to address it. I’d like Chlöe Swarbrick to address it as well. If we provide for a drug-testing service at those festivals, does that in any way shift or alter the legal obligations of those festival organisers? In other words, if I’m a festival organiser who at the moment is quite risk-averse, and rightly so—whether they’re running White Island volcanic tours or building sites, factories or music festivals, we want them focused on safety and that’s the very purpose of that Act—is there a risk in Part 1 that as a consequence of providing for this drug and substance checking, I as a festival organiser am going to be able to say, “Hey guys. I had the drug-testing service there. I’ve met my obligations.”, and, effectively, turn a blind eye to those that are peddling the meth, the ecstasy, the cocaine at these sorts of festivals? In my view, if that is the legal effect of Part 1, we actually run a risk of increasing the harm, not reducing it—on which we agree.

The second point I want to address is my amendment to section 35—coincidently—“DJ”, and no I’m not going to indulge my colleague David Seymour by singing an item, although I do note that the member of Parliament for that, Chris Baillie, may like to give us a maiden number as a band member with musical talent. If I was to test my musical talents in this Chamber, I assure you that I would probably get disciplined and named by the Chair. But there is a serious point, and the serious point is this: if the logic of this part, that providing drug-testing services at music festivals is going to make them safer, why would you not equally, Minister, run that argument in the broader community? The reality is the bulk of our illicit drugs are not used at music festivals and such events; they are actually used out in the community every single day in homes and all over the country. If the logic is that there is a risk at music festivals, is it the Government’s intent to also apply that testing to The Octagon in Dunedin or Queen Street in Auckland and every other nook and cranny of New Zealand where, sadly, there are high and increasing levels of illicit drug use? If you apply the logic that you’re going to make it safer at a music festival, do you also apply the logic that says that it would so too apply to others? As Part 1 is currently drafted, this drug- and substance-testing service could be applied anywhere.

I have proposed an amendment to try and narrow the focus of the bill. I’d be interested in the Green Party view. Is it the intent that the drug-testing service would apply only at music festivals or is the intent actually to apply it at other places where illicit drugs are used? If there is a difference in public policy view about those different circumstances, please explain, because I am unconvinced. I would stress to this Parliament, particularly when it is passing urgent legislation in a hurry, that we keep it narrow, and let’s at least keep it to those music festivals and those sorts of concert events, and let’s see how it goes for 12 months before we throw the net more widely. I would be interested both in the Minister’s response, the Green Party’s response, and I’d be particularly interested in the ACT Party supporting our amendment so that we can keep this urgent provision to the very specific issue that has been in the public arena, and that is the issue of music festivals and concerts.

I’m thankful for questions posed by the Rt Hon Dr Nick Smith. Can I deal with the second question first, which flows from his amendment and his proposal to add proposed section 35DJ—coincidently—and say that I’d be very clear: it is the intention of this Government through the next phase of legislation it will bring to Parliament, which will go through the full parliamentary process and a full select committee examination, to ensure that there are drug-checking services available beyond just festivals, because the member is absolutely right: there are substances available on the street, so to speak, that are unsafe to people. There is all sorts of peddling of substances and wares on the streets in cities around New Zealand, which are a hazard to youth, and which people ought, if they get the opportunity, to better find out what is contained in those substances.

Because that is a significant policy step—a health policy step—it is right that that comes under the full scrutiny and examination of this Parliament, and that member and other National Party members who will be on the relevant select committee, the Health Committee, will have an opportunity to go through in detail the policy considerations and the pharmacological information that informs that policy.

But right now this particular provision is conceived to apply for the forthcoming festival season. It is based around the Director-General of Health being able to give a permit, and the basis on which the Director-General of Health will give those permits, bearing in mind that the Director-General of Health can put conditions on it, will relate to the music festival, music concert, sort of, regime that happens around this time of the year anyway. Given that the concert season, the festival season, is about to kick off this month, we want to make sure that that is in place for there. That is what the policy intention is confined to.

In terms of the member’s proposed amendment I might just add—and I think David Seymour referred to it yesterday. The difficulty with this proposed amendment is: what is a music festival or concert? Does a music festival that has all sorts of other offerings—food, other beverages, entertainment—constitute a music festival for the purposes of the member’s proposed amendment? I think that has the potential to create more confusion than to provide assistance.

On to the member’s first point that he raised in relation to interaction with health and safety and employment obligations; look, I’ve met festival organisers who say, “The reality is, we know that at these events people are going to turn up with substances and some of them won’t know exactly what is in the substance they have.” From their point of view, they consider the bigger risk is that they don’t have the means available to better ensure safety for those who do want to consume those substances. The event organisers I’ve spoken to welcome the ability to have drug-checking services available in a way that means that they are not criminally liable. So they see that as discharging their health and safety obligations as opposed to going in the opposite direction.

I’ve yet to meet a festival organiser, dealing particularly with the kind of summer rock festivals that we get, who aspires to drug-free events. They know that with the cohort and the demographic that turns up to those events, there is a high probability that there will be illicit substances circulating within that group. What they want to do is make sure that those who choose to ingest those substances do so with a level of information and education and knowledge and do so safely. So I think that is a fulfilment of health and safety obligations for a person conducting a business or undertaking, not contrary to it.

I move, That the question be now put.

The Minister has not specifically addressed the question that I sought about the legal liability of festival organisers. Just to keep it very short and sharp to the Minister: will the provision of drug- and substance-checking services at a festival reduce the liability that a festival organiser will face in the event of a tragedy at a festival event? In other words: has he had any advice from officials about the interaction of this bill and our health and safety and workplace laws around the obligation? And here’s the rub of it for the Minister—why I’m concerned—the core of the argument this morning is everybody wants to reduce harm. That’s not the question. The question we have as a consequence of providing the substance testing is that you make the organisers of festivals less cautious about trying to prevent drug dealers getting into their festival events, that you get people getting less cautious about using the substance, because now it’s got a Government testing - approved agency that’s doing it, and, as a consequence, you’ll get increased use and you get increased harm. So the reason for the question is that these provisions might be counter-productive to reducing harm, if, in fact, we have organisers saying, “Good, this law reduces my liability and risk.”, and that’s why I’d specifically ask the Minister what advice he has received, what assurances he can give to the committee that that is not a risk that we should be concerned with.

I thank the member again for his further clarification, and I think the point is this: the only exoneration of liability, if you like, for the event organiser is exoneration from section 12 of the Misuse of Drugs Act. They won’t be liable for prosecution by having the drug-checking services at their event knowing that that means that there will be people at an event that the event organiser controls who are in possession of illicit substances. So they are off the hook for criminal liability for that. They are not off the hook for the range of other duties that they would be expected to exercise in terms of the safety of people.

Now, if an event organiser knows that somebody is turning up with, you know, volumes of illicit substances that can cause great harm, then that person with great volumes is acting criminally, and if the event organiser knows that, they would also be liable for not taking steps to remove that person from the place or take steps to prevent such a person from entering that place, and they do that through security checking—people coming into their premises. The only point of liability that this legislation prevents the event organiser from being susceptible to is allowing a drug-checking service onsite knowing that that drug-checking service will receive illicit substances. But they must take every other step to ensure people are safe. I might add too, for the drug-checking service, if they have somebody who comes and surrenders a substance for testing and it turns out that it is highly toxic and very dangerous, then the legislation makes it clear in terms of the requirements to act reasonably, they will be acting unreasonably if they don’t take every step to say, “You should not be taking this. This will kill you, or come close to it.” We, you know, tell you not to take it. If it is a soft message about “Well, you’re really taking your chances here, but it’s up to you.”, that won’t be enough for the highly toxic substance that comes to the knowledge of the drug-checking services and subsequently the person.

I am satisfied that the regime that is in place in this bill covers off all those risk areas, for the safety not only of the drug consumer but for others attending the particular event.

I move, That the question be now put.

The question is that the Hon Dr Nick Smith’s tabled amendment to clause 10, inserting new section 35DJ, be agreed to.