Drug and Substance Checking Legislation Bill

We now come to the debate on Part 2. This is the debate on clauses 17 to 23, Amendments to Psychoactive Substances Act 2013.

I won’t take too much of the time of the committee on my comments on this, except to say that the operative sections of this part are clause 19 and clause 20, which set up exceptions to the criminal liability provisions of the Psychoactive Substances Act and simply mean, as was provided for in Part 1, that a person who provides to a drug-checking service a psychoactive substance otherwise unlawful under the Psychoactive Substances Act is not—the drug-checking service, at least, is not criminally liable for having possession of it while they’re carrying out the testing and until they return it to the person who has given it to them in the first place.

My questions on Part 2 of this bill relate to what Government has learnt relevant to this part from the disaster that followed the Psychoactive Substances Act that was passed back in 2013, with the Hon Peter Dunne. Let’s just recite quickly what occurred there, because it has a very close parallel and is one of the reasons that National is cautious of the broader drug- and substance-checking proposals that we’re passing under urgency in this bill. We were persuaded, as a Parliament, unanimously at that time, that if we regulated these psychoactive substances, that would make New Zealand safer. I remember being hauled into the accident and emergency department by specialist doctors at my own hospital within a few months of us passing that law—

💬 Dr Duncan Webb: Wrong bill.

—and seeing the—yeah, yeah, what I’m saying is that we’re amending that psychoactive substances legislation—

Chlöe Swarbrick: Which you screwed up.

And my question—well, I’d be interested—does the Green Party accept that Parliament erred in 2013? Because if we look at the number of fatalities that follow, if we—

Chlöe Swarbrick: I’ll send you an article about how you screwed up, Nick.

Well, I’d be interested for the Green Party MP to explain, because Parliament was persuaded in 2013 that if we regulated these substances, we would make New Zealand safer than if we prohibited them. And what happened? What happened was that right through New Zealand there was a scourge of deaths, of admissions to hospitals, and Parliament unanimously repealed that law within—

Chlöe Swarbrick: No, it didn’t.

Well, actually—

Chlöe Swarbrick: The Greens abstained.

The Greens abstained. Now, that’s really strong, isn’t it? So what happened was that Parliament passed the law in a hurry around psychoactive substances, it turned to custard, and Parliament then had to revisit it urgently and there wasn’t a member of this House that was not moved by the tragedies that occurred around the country.

And I’m simply asking: has this Parliament learnt? Have we actually taken on board—you’re allowed to make mistakes once, but to make mistakes twice would be extremely foolish, particularly when we’re dealing with life and death issues for our young people around drug use.

So my question for the Minister in the chair: what does he think are the learnings from the experience of 2013 when the Psychoactive Substances Act was passed? At the core of that issue was the issue of the testing regime, and where the caution was—effectively what Parliament did at that time was say if things already in the marketplace are already going to be used, then we’re going to allow them to continue to be used while we put a regulatory regime in place. What this is proposing to do is to allow for the drug- and substance-testing of those same psychoactive substances—and without being too crude about it, because it’s broader, but, effectively, we’re talking about synthetic cannabis - type products. Does he expect as a consequence of passing this bill that we will see a re-emergence of those synthetic cannabis - type products which caused so much harm then? And if—

Chlöe Swarbrick: They’re already out there, Nick.

Well, I’d love the member for the Greens, who’s repeatedly interjecting, to actually take a call and to address the issue of what Parliament did in 2013, how we made a mistake, why Parliament repealed it—albeit I acknowledge that the Green Party decided to abstain on the repeal—and explain it, because, in my view, I do not want to see a repeat of what occurred at that time. Parliament got it wrong and needs to accept it got it wrong. So how will the provisions in this part to provide for the testing of those synthetic cannabis - type products actually improve the safety, and are we falling back down the same track we did then?

Before I give the call, on the last vote that we had for Part 1, the numbers given were incorrect. The Ayes are actually 86 and the Noes are 33. So the record will be amended.

Thank you, Mr Chairman, and thank you to the member who’s just resumed his seat. As I recall, the problem with the psychoactive substances legislation, as passed in 2013, was that it set up a permitting regime under which no permits were given, and all that meant was that the stuff that up to that time had actually been on shop counters and stuff just went underground, and, worse, other substances entered the underground market and nobody knew what it was—and that’s what put people’s health at risk.

This does the opposite. This says if you are getting stuff and you don’t know what it is, what the substance is or what it contains, particularly when it comes to things like synthetic cannabis, you can get it tested, so you are safer. That option wasn’t available under the psychoactive substances legislation as at 2013—not available, even now, lawfully. This is about making that process lawful to keep people safe, and the message will be very clear. I don’t think it’s a good idea for people to be taking a whole heap of mind-altering substances, but people do that, and what we want to know is that if they are going to experiment with it, if they are going to try stuff out, that we have a regime that does the best we can to keep people safe. The psychoactive substances legislation didn’t do that; this will do that.

All right. So, Nick Smith may be professing—

CHAIRPERSON (Adrian Rurawhe): The Hon Dr Nick Smith.

CHLÖE SWARBRICK: The Hon Dr Nick Smith may be professing that Parliament got it wrong, but, in fact, it’s Dr Nick Smith and the National Party who got it wrong at that point in time. So when it comes to the history of the psychoactive substances legislation, which Dr Nick Smith lived through, but he doesn’t seem to remember all too clearly, let me run Parliament through a really truncated chronology of how all of that got so deeply messed up.

In approximately 2008, we had the emergence of substances like benzylpiperazine on the underground market and Parliament was moving as fast as possible to continually categorise and classify new substances as they appeared, and at that point in time had to move to constantly make amendments to the Misuse of Drugs Act 1975. It was a really slow process that did not work fast enough, and I would have hoped that, at that point in time, it also showcased the failures of the Misuse of Drugs Act 1975—as ended up being demonstrated in the 2011 Law Commission review, which actually advocated for a complete repeal and replacement to, effectively, decriminalise all substances. But none the less, that aside; then you saw the emergence of the synthetics that Dr Nick Smith is speaking to. They continue to get around the Misuse of Drugs Act 1975 classification process and the slow movement of our Parliament by constantly changing the chemical, the molecular structure, from the slight tweaks of that which was put forward in the Misuse of Drugs Act amendments.

You then had the establishment of what was called the Expert Advisory Committee on Drugs, which, ironically, could only recommend where substances could be classified in response to the harm of other substances. In reference to those other substances, they literally—this expert advisory committee—could only recommend how much to punish people for the use or possession of those substances. Not any better approach to how we can reduce the harm of those substances. But none the less, all of that aside, that meant that all of a sudden you had this ubiquity of synthetic substances, particularly synthetic cannabinoids, which I’m loath to call cannabis, because it’s far molecularly different, but nonetheless, it’s plant matter, sprayed with a number of chemicals to, effectively, mimic the look of cannabis. You then had this appearing on effectively dairy counters under the former National Government. You then had a situation whereby Parliament couldn’t move fast enough to outlaw the stuff. You had a huge number of people who were consuming it. This became a problem primarily because of the whistle being blown by those who were on the front lines in communities.

Parliament then moved to pass the psychoactive substances legislation in 2013. Interestingly, this was lauded around the world at that point in time as a potential massively progressive framework to enable the legal regulation of all substances to reduce harm. However, the major flaw in it is that it immediately outlawed any substances that were currently illegal for jumping through those hoops to prove their safety, which in turn meant that the only psychoactive substances that could be legally regulated under the psychoactive substances legislation as passed by the former National Government were those that were synthetics, i.e., potentially more dangerous than their natural cohorts.

On top of that, you also had—in the original psychoactive substances 2013 legislation—a temporary licensing framework which enabled approximately a dozen of the substances which at that point in time had not been linked to any harm, to any deaths, or to any problems. There was nobody who died at that point in time. The temporary licensing scheme, as prescribed under the Psychoactive Substances Act 2013, meant that those substances went from being incredibly ubiquitous on dairy counters, to in stores which had to be R18 by way of access. They also could not sell alcohol. That meant, in practice, that they were being sold at adult shops. So the problem became visible—

CHAIRPERSON (Adrian Rurawhe): I’m going to interrupt the member and just ask her in the last 60 seconds to relate what she has said so far to the actual Part 2 of this bill. Thank you.

CHLÖE SWARBRICK: Mr Chair, in relating all of what I have said in attempting to bring the National Party’s understanding to the flaws of the psychoactive substances legislation which they passed, which my former colleague Kevin Hague spoke to, as it would, and I quote Kevin here, “Prohibition takes supply out of the hands of regulated, controlled retailers and instead puts that supply into the hands of criminal gangs and other illicit suppliers.” And I move forward, “We should expect that the supply of products that are a high risk will increase as a result of this bill.”—that being the Psychoactive Substances Act 2013—“Those people, those illicit drug dealers will, in addition to having a range of psychoactive substances … have, in another pocket, other drugs like methamphetamine. So the product of this bill will be that the demand, which will not go away as a result of this bill, will also be met by an increased supply of currently illicit drugs.”

Thank you, Mr Chair, and I appreciate the history lesson we’ve just been able to learn. Thank you very much. Thank you for the opportunity to take a quick call on Part 2 of the Drug and Substance Checking Legislation Bill. My question to the Minister, in relation to how this impacts on the Psychoactive Substances Act, is: is the Minister envisaging a situation here where people will be able to find, potentially, incredibly dangerous synthetic drugs—we’ve just had the situation in New Zealand, AMB-FUBINACA; it’s been just recently, in this last Parliament, classified as a class A substance, responsible for the deaths of dozens of individuals, including Calum Jones, a young man who was given a freebie by the drug dealer. If he’d been able to go and get it tested, down at one of the testing services which is going legalised under this, would he have been able to get it tested and got a green ticket to say, “Yep, that’s AMB-FUBINACA, it’s exactly what you wanted,” and then he’d be dead with a green ticket in his pocket?

Is that the point? Is that the point of this? Because what we see in some of these incredibly dangerous synthetic drugs is that they are deathly. They are something which people react to incredibly differently. I fear that this is going to actually lead to a situation where we’re going to be giving young people green tickets to say, “Yep, you got what you wanted, you got what you paid for, and now go take it.” Yes, maybe some information along the lines of the harms, but if that’s what the young person wanted, and he’s been given a green ticket, and we know as parliamentarians how dangerous it is, shouldn’t we be taking a different approach?

Mr Chairman, thank you. Can I just acknowledge our young guests in the gallery there, too, for whom this, I hope, will be an educational part of their visit. Just to explain for their benefit the process that we’re going through at the moment, this is the part of making law where we have a detailed, clause by clause examination of the piece of legislation that is before Parliament. We’ve already had a first reading, where we have a general debate about it; we’ve had a second reading; and now we’re at what’s called the committee stage, and all members are entitled to pose questions to the Minister who’s responsible for the piece of legislation—that’s me, and we’re going through some of the clauses in it.

The question we’ve just had from the honourable member Simeon Brown is the one that you’ve heard about whether this piece of legislation will deal with synthetic cannabis. I might add, this piece of legislation—the proposal in it—is to allow testing of drugs and substances, largely at music festivals and the like, over the forthcoming summer, because we know there is a real issue about young people turning up to those places with substances that they’re not necessarily sure about and taking real risks with their health. We don’t think we can stop that behaviour, but we think we can make it safer. So that’s the objective of the exercise.

To respond to Mr Brown’s question, I might add that when it comes to synthetic cannabis in the form that was described by the member Chlöe Swarbrick, which is dried matter sprayed with chemical substances, the testing regime that outfits like KnowYourStuffNZ operate will not be able to test synthetic cannabis; it’ll be able to test pills, powders, and fluids; that’s what it will test. So to the extent that there is concern—and there still is concern—about dried matter sprayed with toxic chemicals, that is a question we ought to consider for the long-term solution, but this legislation won’t provide an answer to that problem.