Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill

I move, That the Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill be now read a first time. I nominate the Education and Workforce Committee to consider the bill.

The main purpose of this bill is to restrict and regulate the sale, supply, and importation of synthetic urine in order to prevent synthetic urine being used in New Zealand to deceive all aspects of urine drug-testing. Nothing in this bill is intended to prohibit importation, supply, or acquisition of synthetic urine for legitimate purposes such as scientific, research, or industrial use.

If I can start with the obvious, I suppose when you have a name like “Synthetic Urine” in a bill, it is going to provoke some comment. I noticed when the bill was pulled from the ballot, Stuff and, I think, Luke Malpass put the headline “Doocey Taking the Piss”, and I accept that. Luke Malpass is actually from my home town of Rangiora. It’s a good, dry sense of Cantabrian humour, so I accept those gibes. But let us be very serious: this is a serious issue in New Zealand.

How do we have retailers openly selling synthetic urine but, not only that, openly advertising it as a way to cheat a workplace drug-test? Because I tell you what, our family will go to work tomorrow, and our neighbours, our work colleagues, and our friends. If they go to a workplace tomorrow, maybe with heavy machinery, and someone in that team has been smoking cannabis the night before or the morning of and passes a workplace drug-test because of synthetic urine, that could potentially kill someone we love. That could potentially hurt someone we love.

Now, I’ll accept it’s not that long ago I knew nothing about this, and that’s the beauty of being an electorate MP. Everyone in this House will know you do your constituent clinics for the day, you’ve got seven or eight appointments, you come in, you look through the notes and go, “Really? Is this taking the piss?”. Then they turn up, and then you actually think, “Hold on, this person’s actually quite credible.”, and that happened to me, because it was a constituent in my electorate of Waimakariri who came and met me.

He owns a large agricultural contracting business. He found out one of his staff passed a drug test using synthetic urine. He was alarmed, and then someone in his workplace showed him the websites where you can actually go into retail shops in New Zealand, or go online. Not only is it synthetic urine, but it’s warming pads so you can warm it. There’s actually phalluses so you can pass the urine through it as well. This is quite a comprehensive system that allows you to cheat a workplace drug-test. He was outraged, and I could imagine why.

The really disappointing thing is he genuinely, but naively, went to the media, and do you know what? This is critical of the media, but do you know what the media did? The first thing they said was “Oh, you’ve clearly got a drug problem in your workplace. We’ll report that.” That guy had spent his whole life building that workplace up, and now, because some person that he had trusted had let him down, his whole reputation of his agricultural contracting business was going to go down the drain.

So he couldn’t go down that route, so what he did—I mean, it’s serious. He called the Ministry of Business, Innovation and Employment (MBIE). They said it was nothing to do with them and to call the Ministry for Primary Industries. He called the Ministry for Primary Industries, and they said, “Nothing to do with us. Call the Ministry of Health”, so he called the Ministry of Health, who said, “Nothing to do with us. Go to the Department of Labour”. So he went to the Department of Labour, and they said, “Nothing to do with us.” So he called WorkSafe; he still hasn’t heard back from them. Then he went to the Department of Internal Affairs, who put him back in touch with MBIE, right at the start of the circle again. Finally, MBIE advised him that it’s not illegal to sell this product, so MBIE suggested “lobbying Government through MP” to make it illegal.

MBIE told him to go to his local MP, and that is the beauty of the New Zealand democratic system. You can pitch up to your MP in your local neighbourhood, get them on board, the MP goes to—and I want to acknowledge the Office of the Clerk legislative counsel, because when you ring them up and say, “Oh look, I’d like to put a member’s bill together around synthetic urine.”, they’re probably thinking, “Really?” But they put a lot of work into this and came up with the format and the legislation in the bill that’s proposed today around the regulation. So I want to acknowledge them.

Basically, it’s now in the ballot, and it gets pulled, which is fantastic. This person can now have their day to say, do we want to live in a country where retailers, because of profit, openly want to sell—and look, go online and have a look at these retailers. I will advise you just to be slightly cautionary, because some confronting images pop up. Go into COSMIC, the Hemp Store, Wicked Habits, VAPEVAPE. They’ve all got retail shops, all online, and they’re openly selling it. How can you openly sell a product and it says online, “Use this to go and cheat a drug test.”? That puts everyone at risk. Where is their duty of care? I just find that absolutely outrageous. How can we have this going on?

I do note that other jurisdictions internationally have banned synthetic urine for this use—the United States as an example. So other countries—[Interruption] Oh, the Hon Michael Woodhouse has just googled one of those.

💬 Hon Michael Woodhouse: That’s something I’ll never unsee.

No—no. He’s looking at it now. So that is—

💬 Hon Peeni Henare: On his work phone.

Ha, ha! Drug test tomorrow in Parliament—everyone’s scurrying down to COSMIC tonight! Hey, look, let’s have a bit of fun with this. Like I said, in the name, it does, but this is a very serious issue, I believe, because, in the end, what party in Parliament wants a workplace where there is a legal product to circumvent the drug tests?

I did go back to this person and say, “Is there much chance that this can be picked up?” Now, it’s interesting. I spoke to The Drug Detection Agency CEO, Kirk Hardy, who has come out in support of this. Just one drug detection agency alone—and there’s a lot of them in New Zealand—and they’re saying, on average, 1 percent of tests pick up synthetic urine. So, for them alone, it’s several hundred people a year that are testing positive for synthetic urine.

Not all testing equipment is of the sensitivity to pick up synthetic urine, and of course, like any game, once that product gets caught, they’ll change the component of it. I did ask why not do saliva testing, and he said that saliva testing does not give you the accuracy and the effectiveness of urine testing, and that he would not be moving towards it. That’s what I’ve heard from the construction sector as well, who also back this bill as well.

So what we have is one of those issues where just a genuine person encounters it and thinks, “Well, this isn’t right.” In fact, I haven’t met anyone yet who thinks it’s actually right to sell synthetic urine to pass a drug test and to retail it like that as well.

I started my speech to say that I wasn’t looking to outlaw it. It did surprise me a bit, but when I did my research, there is legitimate use—for instance, primarily for laboratory calibration of screening equipment needed for urine examination—and it goes on a lot of specific industrial and research uses as well. So I think this bill is quite well-crafted, and basically just stops the ability for someone to sell synthetic urine with the intent of the purchaser passing or cheating a workplace drug-test, and for that person to be doing it themselves.

I do hope this bill will get support tonight. I think it’s one of those ones that we will take to select committee and it will have legs of its own. It’s a big issue that I think we need to address, and why should we have this on sale in New Zealand? Thank you, Madam Speaker.

Thank you, Madam Speaker, and I’d just like to thank Matt Doocey for the opportunity to spend the evening talking about workplace health and safety, which is a really important issue. Before I go into the specifics of the bill, what I want to do, though, is just talk about the broader context in terms of workplace drug-testing and what it actually aims to achieve, and then think about whether this bill actually takes us further in that direction. If you go to Employment New Zealand’s website and you type in “drug testing”, you come up with their “Drugs, alcohol and work” page, and one of the key points it emphasises there is that, under law, both employers and employees have a duty to ensure that their workplace is safe. Then they go on to talk about using drugs and alcohol can lead to employee impairment at work, and they talk about some of the effects of impairment: poor concentration, carelessness, risk-taking behaviour, and errors in judgment. Then they also talk about how alcohol and drug use not only affects work performance and productivity, but you end up with higher rates of injury, fatalities, and absenteeism. So the key function of testing for drugs at work is to make sure that we’ve got a safe workplace, but it comes down to the impairment factor on that and, basically, the fact that that impairment then can go on and compromise the safety of the employee themselves, their fellow workers, and members of the general public.

So just thinking, though: who can test? Is it just something that any employer can request of the employee—and the situation there is no. Generally, an employer can only really ask an employee to have alcohol or drug testing if it’s a condition of their appointment and if it’s in the employment agreement or if it’s a workplace policy. So, basically, Employment New Zealand recommends that employers thinking about drug testing their employees seek legal advice because, basically, what you’ve got to weigh up are the risks and benefits versus the privacy and invasion of privacy for individual employees. Basically, if they’re thinking about it, why they might be doing it is to protect the safety of employees or the general public—for example, if the employee works in a safety-sensitive area or if their work directly impacts the safety of others, other colleagues or members of the public—and you’ve also got to balance that requirement about safety versus not creating unreasonable intrusion into the privacy of employees.

But then you’ve got other issues that you’ve got to consider if you are going to be looking at workplace drug-testing, and that is when you test. So the options there are you can look at pre-employment tests, random drug-testing, testing on suspicion of use, or after you’ve had a near miss or an accident. I think looking at safety-sensitive workplaces, pre-employment testing often can give a signal from the employer to the employee that they’re serious about managing the impacts of alcohol and drug risk within the workplace and so putting something in the job vacancy gives that signal to that potential employee that the employer is very concerned about managing those risks.

But then once you actually are employed, then you’ve got to go down the route of considering whether you’re looking at random testing or whether you’re actually looking at very specific testing in certain situations. Again, Employment New Zealand talks about, you know—their sense is that doing it for specific purposes is probably better than just doing random suspicion-less testing on everybody. So thinking about that, specific purposes, if you find somebody that looks like they’re impaired at work, that might be a situation where you might want to test or if you’ve actually had a near miss or been involved in a workplace accident.

Then there’s a range of options for testing and so urine testing—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! Order! Can I just draw member’s attention to the purpose of this bill, which is to restrict and regulate the sale, supply, and importation of synthetic urine, and invite the member to come back in her first reading speech to the purpose of the bill.

Sure, OK. Thank you, Madam Speaker. So what I’m sort of laying out is the framework around the testing, but then we come back down to what the effectiveness of the bill is and where this bill would sit within that, because what this bill does is it aims to create a framework whereby the Director-General of Health can place restrictions around the importation, supply, and acquisition of synthetic urine, and allowing them to authorise those people that can bring that into the country, import, and make it available for specific purposes. So that’s about research, testing, etc. But the issue we’ve got is that urine is only one of those elements that can be tested for in workplace drug-testing. You’ve also got the options of saliva, you’ve got the options of blood, and you’ve got the options of hair.

The other issue we’ve got is if we go down this route and we do take that time to ban the availability of synthetic urine in the marketplace, the question there is we haven’t got a real sense at the moment of what the underlying prevalence of people faking their drug test with synthetic urine is versus just going in and saying to a mate or to a family member, “OK, can you please provide some urine for the purpose?” versus there’s a whole lot of detox products that are available on the same websites as those that are offering synthetic urine for sale. So, basically, the question is: what proportion of behaviour is going to be displaced if you end up with taking people away from using synthetic urine and moving on to detox products? The other issue is, basically, that active drug-testing also can create situations where there is the question around trust between the employer and the employee.

If we’re getting rid of just the synthetic urine, then the question comes back to: what are we doing about impairment? Often with these drug tests—for example, if you’re looking at, say, cannabis within a drug test with urine, that can be tested and positive in the system for up to four weeks when tested by urine. So the question is: if we’re then, again, banning synthetic urine products, what does that do about that whole focus in the employment situation around impairment and the culture of the workplace where the workers are identifying impairment among themselves or among others? Because I think it’s really important that we create that culture in the workplace that doesn’t focus just on a single drug test, but it focuses on having that shared employer-employee relationship, focusing on impairment and identifying the reasons for impairment in the workplace that can lead to injury or accident. In that situation, there’s a lot of other factors that may not be picked up by particular urine testing or other drug testing. For example, fatigue, stress—you’re looking at alcohol use and looking at other drugs that are not picked up by that testing.

So I think the issue we’ve got with this bill is that the Director-General of Health could go to a lot of trouble in terms of banning the importation and having a very narrow regime about who can import it for particular purposes. Then we think that what we’ve done is we’ve actually eliminated the risk of drug use in the workplace when all we may have done is potentially displaced that from, basically, the use of synthetic urine to other detox products, to then using friends or other colleagues to provide a sample. Yet we’ve then not then gone back and focused on that relationship between the employer and the employee and creating a positive environment where we can actually really focus on the particular sources of impairment that we get in the workplace. So, basically, I think what we need to be doing is stepping back and saying, “What is our broader approach to safety in the workplace?”, and then focusing on those factors in addition to drug impairment, alcohol, fatigue, and working out how we work together to identify where those systems are.

So basically, in summary, I think that this bill and the proposal that it’s doing would put in place a complex regulatory regime in terms of who can import and who can make the products available. But what it wouldn’t do, potentially, is address the underlying issues around impairment, and it wouldn’t make it any safer in terms of thinking through how that works, because I think, again, coming back to just looking at the various options for testing, if you look at urine testing, cannabis can be in the system for up to four weeks—which means that you may be getting a positive test there, but you’re actually not identifying impairment—methamphetamines, three to five days; other opiate-based, four to five days.

So again, it’s that focus on where we are going to put our effort in terms of ensuring we’ve got health and safety in the workplace. So I think where we do need to go, though, is making sure we have that focus on how we come together and look at impairment and how we can reduce the impacts of alcohol and drugs in the workplace. So I’m unable to support this bill. Thank you.

The question is that the motion be agreed to.

Thank you, Madam Speaker. This is the second member’s bill by a member from the National Party that focuses in on a very narrow—well, for tonight—point of criminal law seeking to impose further criminalisation and further sanction for very specific types of acts in our justice system. It’s a little bit confusing that these are the hopes and dreams of the National Party members in their top wish-list.

So it’s about synthetic urine and we’re talking about authorisation of a scheme that allows the Director-General of Health to issue, revoke, or expire authorisation. Individuals who import or supply, or acquire synthetic urine will be liable for fines not exceeding $2,000. Body corporates will be liable for fines not exceeding $2,500.

The Green Party, and I think everyone in this House and probably across our great nation, is becoming more and more well versed in our focus when it comes to drug reform, which is harm reduction not further criminalisation, not further sanction, and not further imprisonment, because those things have failed, in particular when it comes to drug law reform. Surely, the reason that an employer would want to reduce the use of illegal drugs by employees while at the workplace, and thereby test to deter people from people from being at work or in places of employment whilst under the influence of illegal drugs, is to reduce harm and impairment. This bill does nothing to that end, because we know that further sanctions will do nothing to that end, because all of the data has told us that, all of the experts have told us that, and it’s really time to stop ignoring the evidence. What would be better policy is if we put effort, time, energy, and resource into addressing drug dependency when it is harmful, to ensure that we are catching impairment and helping people to access help to reduce the causes of drug offending.

Now, these fines are high. When you look at the range of fines that we can get for, for example, criminalised traffic offences, they are about $400 to $1,000. These are high, and in New Zealand, just to look at one of our biggest social problems, we are the second most incarcerated population per capita in the OECD. In New Zealand, people actually go to prison for unpaid fines. We actually have people being massively harmed in prison—we know that’s what happens. We have their whānau and their community harmed for unpaid fines.

We know that most drug testing takes place in the construction industry, and we know that the construction industry has a high population of Māori in it. We know that so too does our criminal justice system target Māori. We know that imprisonment rates are far, far higher when—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! I’ve done this once before in this debate, and I’m going to again remind the House and this member to stick to the purpose of this bill, which is to restrict and regulate the sale, supply, and importation of synthetic urine. I would very much like the member to address the purpose of this bill.

Thank you, Madam Speaker. So to sanction people for using synthetic urine, looking at it in the context of where it is most likely to occur, which is in industries that do drug testing—which the construction industry is one—and looking at the populations that are most likely to be fined and sanctioned by our criminal justice system, which is the purpose of this bill, we know that there will be certain demographics that will be most harshly impacted by the purpose of this bill and by the sanctions of this bill. We know that there will be certain demographics—and they are Māori and they are most likely to be male—that will be harmed by further sanctions, rather than resource being put in addressing drug problems. For that reason, this is a bad bill.

This proposes a bad law. It proposes an archaic approach that we’ve seen fail over and over again, and I think that we can all agree we’d rather rely on what works. It’s time to be little bit more forward thinking or, rather, practical about drug law policy. We don’t, as the Green Party, support yet another way to sanction people rather than to help support them reduce the harm that illegal drugs may cause.

Thank you, Madam Speaker, and thank you for the opportunity to rise and speak on the Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill. I’d like to say it’s a good wee bill, but it’s not.

There is no evidence that the use of synthetic urine to pass drug tests is a widespread problem in New Zealand, so the bill appears to be, again, a solution looking for a problem. I think there’s three main points that illustrate this. Firstly, Newshub reported that in one particular workplace last year, despite hundreds of workers being tested, only one person was found to have produced or used fake urine to provide a sample—one. Secondly, it looks as if there haven’t been any employment cases in New Zealand relating to this particular issue. Thirdly, I think that it’s also important to note that where a worker who has legitimately been tested has been found to use a synthetic urine product, they can already be justifiably dismissed in the workplace.

So no one is saying that the genuine impairment that results from drug and alcohol use in the workplace isn’t important or that that impairment isn’t of concern, but relying on drug tests as a means by which to uncover this impairment and relying on drug tests which are ropey, at best, as a means by which to expose this type of impairment just simply isn’t very robust. As my colleague who has just taken her seat has said, it’s often also not very fair. So let’s be clear: drug testing at work mainly exists as a pretty hit-and-miss method of deterrent, which this bill is now seeking to prop up, instead of looking at actual ways—actual, genuine ways—of minimising drug impairment in the workplace.

Thinking about drug testing in general, we know that most testing doesn’t test for a large number of drugs. We know that most workplace testing in New Zealand, the threshold for a positive test for the drugs that they do actually test for is so low that the mere presence of any drug, regardless of how it might or might not impact on impairment or workplace performance, would be considered a breach, and that that actually has real consequences to real life people.

We also know that drugs vary greatly in the time that they remain detectable in a person’s system. Cannabis, for instance, can be detected weeks after use and long after any impairment or long after any impairment that involves consideration of workplace performance has worn off. Actually, if the member who’s sponsoring this bill wanted to improve health and safety at work, as he’s claimed quite vigorously from his seat, then this bill wouldn’t actually be the vehicle for it.

I think we can all agree that we certainly don’t want to see other more dangerous methods of circumventing testing, like detoxification kits or people consuming huge amounts of water to flush out the system, start creeping into the testing system. Ultimately, there are other really accessible methods of actually faking urine samples, like simply just using a clean sample from someone else.

So, bearing these things in mind, as I said, drug testing, I believe, remains quite a ropey methodology, quite a ropey tool, to combat impairment. We’d have, certainly on this side of the House, I think it fair to say, preferred to have seen some more focus on policy and more focus on training and empowering employees rather than these threats of punitive measures.

So we oppose this bill both from a workplace relations perspective and also from a health perspective. The scale of the problem the bill seeks to solve has barely been demonstrated. The administrative resources to set up a regime to manage an issue we barely know the scale of just doesn’t make any sense. The efficacy of drug testing currently in use by employers is itself very debateable.

So, in short, there are much better ways to keep our workplaces safe, happy, and productive. There are many, many more ways that we should be advancing this, and much more aspirational ways that we should be conceiving of this issue. In and of itself, this bill is punitive, difficult to enforce, unlikely to address the real underlying problems, and likely to exacerbate other important problems as well. So, for these very reasons, we do not support this bill to progress further, and I do not commend this bill to the House.

Thank you, Madam Speaker. I rise on behalf of the ACT Party to take a call on the Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill. ACT opposes this bill not because we don’t care about drug use in the workplace or we don’t think drugs are bad, but because we don’t think this is the bill to solve this problem.

The assertion is that employees are using synthetic urine to cheat drug tests at work, and if this was rampant, we may have a different view. Drugs are a problem in New Zealand and the way we deal with them differs depending on which side of the fence you sit and the experience in life you’ve had. I’m interested to hear tonight about the various examples down south, because it’s very hard to find details and actual numbers recorded in New Zealand. How many tested positive with synthetic urine? Making laws based on anecdotes is fraught with danger. It’s a bit like blaming feral cats’ urine for killing dolphins. We need evidence.

Health and safety is a top priority for all businesses. Keeping their workers fit and healthy is in their best interests as well as their employees’. There are many avenues available to employers to guard against this issue of being drug-impaired at work: having a culture of trust and knowing your employees; having good managers or supervisors who can deal with potential issues and report to those who need to know where things can get sorted. It isn’t difficult to identify people who both take drugs regularly and are being affected by drug taking. As a secondary school teacher, I could walk into any classroom, or any house, for that matter, and point out very accurately the students who use drugs, mainly marijuana. They think they’re fooling you, but they’re not. I would suggest that any employee desperate enough to carry around a bottle of synthetic urine just in case they got tested would be easily identified. They obviously have a problem, and should have been identified well before any action was required.

The hiring process for all businesses is stringent. Criminal histories are asked about, and a police vetting service is available if an employer wants that security. All individual employment agreements have a provision about drugs at work. The ramifications are clearly explained on the contract, and from the businesses I speak with, including my own, staff are constantly reminded of what would happen.

In my own business industry, synthetic urine isn’t and hasn’t been a problem. Prior to this bill being introduced, I’d heard about it, but never really took much notice of what it was. The technicalities that would arise with the addition of a synthetic urine accusation to an employee would further embolden the no-win, no-pay lawyers, who would relish another set of reasons for a defence. Specific protocols, privacy issues, even race has been brought up in cases overseas. Especially today, when the business owner is up against it, the personal grievance process will become an even bigger rort than it often is already. ACT opposes this bill.

Thank you so much, Mr Speaker. I rise to speak this evening on the Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill. I’d just like to start by thanking Mr Doocey for introducing me to some information and images that I can never unsee or unknow! I’d like to also apologise to my IST department for the use of my computer in accessing the information that I can now never unsee or unknow. I now know all about products like Monkey Whizz, which is available in dehydrated and hydrated forms, and I’ve also been introduced to the ScreenyWeeny, which is available in multiple different colours.

But, really, this is a serious issue, although I jest, because what we’re looking at is a bill which seeks to restrict access to synthetic urine, and working on the assumption that (1) we have a significant problem with cheating workplace urine tests, and (2) the second assumption is that cheats cheat with synthetic urine and, therefore, that banning synthetic urine will make workplaces safer. There’s a couple of issues that I have with that, because I actually see that the key problem is actually impairment at work. I think what we’re all trying to achieve is a safe workplace, and a safe workplace is going to be achieved by identifying impairment rather than using testing, which is significantly flawed, and experts do agree in many situations that they are significantly flawed in detecting drugs at a level which cause impairment. And, actually, impairment’s the issue.

So I would argue that we all know that the more safety sensitive the workplace the higher the risk of impairment causing increased accidents. So it is really, really important. So, moving to my point that identifying impairment isn’t necessarily achieved well by urine testing, I’d just give the example that I, for example, could trigger a positive result by taking a couple of Panadeine for a headache. And Panadeine, as we’re aware, contains codeine in small doses and used to be available over the counter. I could even have a large slice of poppy seed cake, which is slightly ridiculous because although I might feel bloated, I wouldn’t necessarily be impaired.

And we are looking at a genuine problem. We do have concerns around the drug testing positive of the occasional cannabis user, who will still be showing a positive result three to four days after actually using cannabis, which, whilst we would never support the use of cannabis before going into a workplace, you can’t argue that they’re going to be impaired at that point. So, for me, banning synthetic urine won’t solve the problem. The problem is actually easily gamed, if you like, by the user by, for example, just using urine from a producer, and I actually am surrounded by, I hope, suppliers of healthy urine. It’s really not hard to find, and unfortunately the banning of synthetic urine won’t stop the problems.

So what we’re looking at here is a core problem that we need to identify impairment at work. This bill doesn’t do that. Over this side of the House, we find ourselves feeling that this bill doesn’t solve what actually isn’t a really significant problem and it doesn’t address what is a problem. So I’m sorry to say that, although I really fully support the intent of making workplaces safer and the intent to remove drugs from our workplaces, I don’t feel that this bill would achieve that, and so I can’t commend it to the House.

Fa‘afetai lava, Mr Speaker. Thank you for the opportunity to take a call on the Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill. I also want to acknowledge the member Mr Doocey. I think this is probably my second time taking a call on a different member’s bill—quite a blessed man to have his bill pulled. I just want to acknowledge the purpose of this bill, as well: to address that some employers may be concerned about the use of synthetic urine to pass a test, also the use to pass workplace drug tests that reduces the risk for employers and employees, in terms of workplace accidents, and also trying to address the advertisement of these products, which the previous member, Sarah Pallett, has also mentioned. The bill itself is two parts and 15 clauses, so not a long bill, but I just want to acknowledge the intention.

However, just like my other colleagues have already mentioned, I just want to acknowledge that there are already drug-testing agencies that are trained to detect synthetic urine, such as that of The Drug Detection Agency—or TDDA—that have also confirmed that they are able to train their testers in terms of listening to a sample when they are pouring into a container, making a differentiation between normal and synthetic urine, also looking at temperature, as well, between 33 and 38 degrees Celsius, also acknowledge that, you know, you’ve got those warmers that come with those other kits. But other than that, there is another lever where, if there is some sort of discrepancy on those two levers, they can send it to an accredited lab that can also check on the composition and integrity of the urine sample itself.

I guess, as my experience with drug testing—not an employee or an employer sort of scenario, but as a sports doctor with athletes, elite athletes that get drug tested quite a lot, I go in with the athlete, with the facilitator, because we are aware of these sort of kits that people use, to make sure that athletes are not bypassing drug testing. And, again, it is quite a sort of secure sort of process. And, again, there are other levers which we can use to detect any other synthetic urine or other measures that they’ll be using to bypass testing.

I acknowledge that the Green Party, not only them but the ACT Party member, have mentioned harm reduction and impairment. And those are the two things that I think are really important. When we look at testing of our employees, it is, like the member from the ACT side has said, making sure that there is a safe but also open and trustworthy environment. Having these punitive measures where it is not actually looking at the issue of impairment, those are the things that can cause problems in the workplace.

I look at employment cases. We haven’t seen any employment cases regarding the use of synthetic urine in New Zealand. And also seeing the different ways that if we were to set up this authorisation regime to deal with this issue, given the lack of evidence of gaming in the workplace, experts think this is not going to sort the issue, as well.

There are other ways to bypass the system, like our previous member said. You can always borrow urine from some sort of member—

💬 Hon Member: Happy to help!

Ha, ha! Again, there are other ways that accredited lab tests are able to differentiate this, as well.

So I want to acknowledge the different reasons why we oppose this. And given that there is no evidence of cases, and that it is more about impairment and looking at harm reduction, that is why I oppose this bill. Thank you.

Well, I’m not sure about the previous member, but I haven’t been asking anybody for their urine for a long time. I must say, I’ve never seen Labour members, in my 13 years in this House, work so hard to oppose a bill they actually like. Dr Liz Craig looked like she was chewing a wasp, and I think we’re seeing a pattern emerging here where the whip’s sitting there, smirking away, because he knows Labour have been told—the backbenchers, the foot soldiers of this arrogant Government, have been told—to oppose every single good idea if it doesn’t come from them, and especially if it came from the National Party. We saw that in the Finance and Expenditure Committee this morning, Dr Webb—I don’t think he should be smirking for long.

Dr Craig tried to explain that this wasn’t good from a health and safety at work perspective. Well, I was the Minister that pushed, finally, that piece of legislation through in 2015, against significant opposition. But it was a damn good thing that we reformed our health and safety at work. For Dr Craig to say that this isn’t necessary, I think is quite wrong. Every employer is required to take practicable steps to ensure that their staff and their customers and other stakeholders in their PCBU are safe at work. One practicable step that this House can take is to make sure that the means of getting around a workplace drug test is removed.

It is a narrow bill, but it is a problem. The sponsor of the bill, my good friend Mr Doocey, is saying that by the best estimates from the drug-testing organisations, several hundred of these could be being used, a year, around the country using technologies that are not yet advanced enough to detect the fact that they are synthetic urine. So the members opposite are saying, “Oh, well, there’s no problem to solve.” There is a problem, and the existing techniques for most of the drug-testing agencies are not picking it up.

I have to say that Golriz Ghahraman—and I am a list MP, so I’m allowed to say this—clearly has never met a constituent in her life. Mr Doocey explained very clearly that somehow—what did she say? She said something like “It shouldn’t be what’s important to National.” Well, it’s not so much what’s important to National; it’s what’s important to the people that come through the office of our constituency offices. It’s very important to this employer; it’s very important to other employers who have a responsibility to keep their stakeholders safe and who may be having their urine tests for safety—random or if there has been a near miss or an injury in the workplace—usurped by this surreptitious product. That’s all it does.

The members who spoke from Labour should be ashamed that they cannot, as members of the Health Committee, see what good this can do. Actually, I think they do know what good this can do, and I’m interested in which Minister shut them down on it—probably Michael Wood, the Minister for Workplace Relations and Safety. Heaven knows why. I can’t imagine Mr Little actually opposing this, because he’s a sensible fellow. But somebody over there told Labour members to talk against a good idea just because it’s a National bill, and that’s a crying shame.

I’m not on the Health Committee, but I was the counsel in the Air New Zealand case, which was the test case on drug testing, and then I was also counsel on Toll, which was the second case in the run. So I do know rather a lot about drug testing. In the original case, I remember John Haigh QC, who was a very lovely man, and he described exactly the risk of what has been described here: that people would actually use inventive ways to get round the situation, and they would use synthetic urine, or somebody else’s. And actually, at that point, he was reassured by the expert witness, who was in favour of drug testing, that gold standard testing would mean that no one who did a proper drug test in a proper, robust way would actually be able to pull the wool over the eyes of an employer. So as long as an employer is paying for the gold standard test, that simply should not occur, according to the experts. What has probably happened is there’s been an insidious creep in this area, so that there are a lot of tests that aren’t necessarily up to scratch in terms of their science.

Now, the problem with that testing, of course, itself was evident to the full court. It is a very invasive form of testing, and we’ve heard a little bit about that today. It does involve, really, a balance between the employer’s interests or the public’s interests and the private interests of the employees. What the court warned in that case was that while drug testing at that point was accepted in quite prescribed circumstances, it was not for ever. In fact, what they said was that as soon as saliva testing became reliable, it should replace this form of testing, because it’s a lot less invasive. We now have actually really good saliva testing available. It’s going to be cheaper for employers. It’s way less invasive, because it is only saliva. It’s on the spot, so there’s a lot less chance that you can actually fiddle with the tests. And, also, it does something very important: it focuses on recent use. There’s all sorts of issues with testing with regard to picking up historical use—particularly of marijuana, because marijuana stays in the fat cells—and so it is actually a very bad indicator of whether there’s impairment in the workplace.

I have some concerns about drug testing in general because I think it does distract from the real issue, which is actually fatigue and other forms of impairment in a workplace. If you have people who are incentivised to work very, very quickly—it was happening on the port, and it has been discussed recently; if you have people who are very fatigued by the types of shifts they are on; if you have people on various drugs, or they’re just fatigued because their lifestyle is out of kilter, then you can have really bad accidents. And this kind of approach, where we focus on and demonise always the employee, actually tends to distract from some of the actual causes of workplace fatalities and serious injuries.

So I am absolutely in favour of workers turning up to work unimpaired, as I am in favour of them not being impaired by alcohol. But what I would like to do is see the wood for the trees in this situation, and the intelligent approach here is to look at saliva testing, if you have to, and look at impairment testing, ultimately, because impairment testing will actually focus on the worker who’s driving the forklift erratically or dangerously. It won’t actually tick the box that they are not impaired by drugs and put them back on the forklift. In my career, I have actually seen that happen, and it frightens me. It frightens me that we are misdirecting. This bill could be a costly one to supervise and to enforce, and it would be a waste of taxpayers’ money. I do not commend this bill to the House.

On 28 April this year, I attended a ceremony to mark International Workers’ Memorial Day in my electorate in Dunedin, in Taieri. We put 56 crosses up, and each of those crosses represented somebody’s mother, father, son, daughter—a worker who went to work at the beginning of a shift and didn’t come home at the end of that shift. That was a really emotional ceremony, and it shows that work safety is an issue. Actually, the most dangerous industries that we have are the farming industries, construction sites, logging, and so on. I want to tautoko the unions and my hero, the late Helen Kelly, for the work that she’s done in this space. So I do have some sympathy for the intention of the bill and some sympathy for the member who has proposed it.

However, the logic simply doesn’t add up. It makes a huge leap from correlation to cause, and that is similar to what we saw earlier in the Crimes (Robbery) Amendment Bill. The bill simply doesn’t solve the problem that it seeks to address, and that is workplace safety. The bill seeks to heavily restrict access to synthetic urine to make workplaces safer. To go through the logic, if we look at the intention, the policy statement is that “Drug testing in the workplace is used to keep people safe and prevent accidents and deaths.” That policy statement says that employers are concerned. That’s a little bit of a red flag for me, because if this was a real issue I believe employees would be concerned as well. They are the ones who stand to lose if their fellow employees are impaired.

The logical framework links unsafe work; employers’ concerns about synthetic urine; risks of accident and death; the sale of synthetic urine; and the prohibition of importation, supply, and acquisition. And that’s a very seductive story. Yes, these things are all correlated, but it makes huge assumptions. There is a serious problem with workplace safety, but it doesn’t necessarily mean that that comes from drugs. There is no evidence of that. Cheating does occur, but the evidence shows that this cheating is what my colleagues on this side of the House have alluded to, which is more the case of somebody using somebody else’s urine rather than buying synthetic urine, which I would wager is possibly more expensive and not as common. So the third assumption is that banning synthetic urine will make workplaces safe, and that is flawed as well, because banning synthetic urine won’t magically solve the problem.

Another issue with this bill is that it does create a strict liability offence. So the intention is assumed, which means that the causality in my view needs to be shown even more than it does in a normal case. And here we have correlation, but no causality is shown. If we look at UK best practice, there’s a holistic approach around workplace testing. The approach is to consult with employees. There needs to be an assessment of safety-critical work that needs to be identified, policies developed, people would be tested, and there would be support for those with a problem. The issue here is the safety-critical work element. As has been said by my colleagues on this side of the House, the impairment is what is missing from this bill. The problem is the impairment. It is the impairment caused for whatever reason, be it drugs, be it tiredness or something else, it is simply missing from this bill. So logically, not all employees who have ingested drugs are impaired, which again speaks to the intent of the bill, and not all impaired people or even a significant amount will be rendered safe by this bill.

If I can just speak more broadly about the element of support for those people who may have ingested drugs, and that is that we see drugs as a health issue. Rather than pushing drugs underground or having employees turn to other drugs to avoid drug testing or perhaps try other means of avoiding tests, we really want to see harm reduction and we want to see that harm reduction and people being supported not to ingest drugs in the first place is going to do a much better job of making our workplaces safer.

So in summary, this bill is about workplace safety, but not about drugs generally. Impairment is important, and it’s missing. It doesn’t even mention the correlation between impairment and the non-safety, and it fails to address the very issue that it seeks out to support. I cannot support this bill.

Matt Doocey, five minutes in reply.

Thank you very much, Mr Speaker. Well, well, well; we’ve learnt it all tonight. When this bill first got pulled, as I said, the media wrote a title: “Doocey Taking the Piss”. I think the title tomorrow morning will be “The Labour Government Taking the Piss”. Really? Are they saying they are happy to live in a country where retailers are openly selling a means to cheat a workplace drug test? That is what the Labour Government is saying tonight. They are happy for that. They are happy for a 16-year-old or an 18-year-old to walk into one of those shops, maybe not looking for a product like that, but think, “Oh, I’ve never thought of that before. Must be OK, because it’s being sold legally.”, and go back to the workplace, consume drugs, and then use synthetic urine to cheat a drug test.

Members said before that we haven’t heard about employees. Well, the reason I know about this issue is because the employer who brought the issue to me, it was other employees in the workplace that dobbed on their colleague when he had told them what had happened. The reason they dobbed on him was because they did not want to work in a workplace where people had cheated a drug test and put them all at risk. When I say all at risk, these are our family, these are our neighbours, and these are our friends. Any one of our loved ones, going forward from tonight, is at risk because this Labour Government did not take the opportunity to stop retailers openly selling a means to cheat a workplace drug test. What has happened in New Zealand’s social fabric that we can continue this to happen?

I hear from the members saying, “Oh, well, we haven’t heard of how much the issue is.” If they’d done their research—it’s called the Parliamentary Library; use the email system and the work’s done for you. Last year, November, in the Navy there was suspicion so they searched a sailor’s cabin. Along with the bong and plant-like material believed to be cannabis, they found an empty box of synthetic urine used to pass drug tests. There’s another case—in our Navy. We’re hearing these stories every week.

One of the reasons why we don’t know the totality of the issue is exactly what happened to my constituent. Because when he tried to raise it, he was threatened with the reputational risk of his business. Because everyone wanted to say, “Oh, wow. You’ve clearly got a drug problem. Wait till your customers hear about that.” That’s wrong. Hard-working Kiwis are working hard all their lives, trying to employ people so they can fund their kids’ education and their mortgage, and we’re allowing employees to go and cheat a workplace drug test? Really? Is that what the Labour Government has resorted to?

Each backbencher MP tonight is going to have to go back to their electorate and defend their decision that they are happy with people going into their workplaces, using synthetic urine, and cheating a drug test. They had an opportunity to stop that tonight, but do you know what they did? They toed the party line. Here are new MPs that worked their guts off, no doubt, in campaigns and put their personal brand and reputation up, and now they turn up to Parliament to make a difference and they get told that they’ve got to vote down a bill. The principle we are debating here tonight is: do you agree that in New Zealand retailers should be able to openly sell a means to cheat a drug test—synthetic urine? It’s a simple question, and the Labour Government has answered that question tonight. They believe it is appropriate. They’re the role models for the next generation. They’re the ones telling the next generation that it’s OK to go down to COSMIC, spend 40 bucks, and spliff up all night, and if you get tested tomorrow morning, at your heavy machinery workplace, just use the synthetic urine, and it’s OK—the Labour Government said it’s OK. That is disgusting.