Drug and Substance Checking Legislation Bill (No 2)

Madam Chair, thank you very much. I don’t want to take a long time on this. The Government has the numbers. They’re going to pass this bill. National opposes it, and that sort of is that. We’ve put out our reasons why that is the case. It is like so many bad laws that this Government passes. Kris Faafoi seems to be chief among Ministers at passing bad laws at the moment, but we’ll get to three strikes, I hope, later today.

But on this pill-testing one, my questions for the Minister really relate to this: I could be wrong, so I ask the Minister—he can point out the error in what I’m saying; I’m all ears, but I feel like the Government went to the election with a ban on pill testing at music festivals, right? That’s what they were going to do. That’s how this started. That’s the bill we got. But then what happened is: somewhere along the line, they just decided we’d have pill testing everywhere, right? It is now, under this law that we’re going through the committee of the whole House on, the case that pill testing can be done anywhere. I didn’t see any official change come; it just came through the law, fundamentally—although, once they’d been elected.

So, given that, I want to understand the underlying rationale of that. Why have we gone from music festivals—I don’t like it, personally, I think it will encourage use. There’s no safe use of the likes of MDMA, but, in any event, I do understand the rationale of it for music festivals—the “Rhythms and Vines” and so on that these guys on the other side are giving a lot of money to because they love a big music festival. We know that about Angie Warren-Clark, we’ve discussed this in the House before. So why the change? When the change? I think, in all seriousness, I’m probably being a bit flippant but I do think, actually, it’s an important issue, the move from testing, simply, at music festival to, technically under this law, anywhere. What is going to go on here?

I presume we’re talking K Road, as it was called. Now it’s Karangahape Road—it was K Road when I was a kid, and we used to get our thrills driving up and down it to see the night life; as a 15-year-old, it was very exciting. I remember, actually, one time—no we won’t go there, actually, no we won’t go there. Anyway, OK, K Road, outside the night clubs—those clubs Shanan Halbert probably went to until the day he became a member of Parliament and he decided you shouldn’t be out past midnight. Nothing good comes after midnight, Shanan Halbert, OK? So is it going to be outside those?

But, more than that, actually, is there going to be—and I’m not being facetious; I just want to understand—rule-making, regulatory powers here? Will it be outside the local playground? There’s no legal impediment to that that I can see in the bill. Will it be outside schools? Under the guise of public harm reduction education, we’ll let the 15- and 16-year-olds know that they can test their pills here because that’s cool and that’s the way the Ministry of Health and those public health officials roll these days, right? It’s all harm reduction, and we’re cool with this outside of schools and outside of playgrounds. I just want to get a sense of the parameters and the legal restrictions. Will there be rule-making powers? I think there should be. I think that’s really important.

And because I’m not playing cat and mouse here and I don’t want to take six calls and string this out and ask the Minister lots of other things, I also want to underline another thing that we never heard about in the election campaign—I don’t think we saw anything about it until the Minister’s office stuck a press release out, and a friendly journalist at stuff.co.nz asked me for some comment on it—and that is the fact that now not only have we gone from pill testing just at festivals being legalised, to everywhere but that taxpayers are going to pay for it. So my question, simply, again, on that is: when did they make that decision? Is it a new thing? Why have they decided that the taxpayer should pay for it?

I just say on that, on the “Why?”, I’m very curious about that. Call me old-fashioned. Call me a stick in the mud. I just work on this basis—and I know they’re a bunch of woke-sters now in ACT these days, so they don’t go along with this; they’ve given blatant disregard for taxpayers’ money these days, and they’re happy for taxpayers to pick up on this down-with-it, cool, hip thing called “pill testing” everywhere. Why isn’t it user–pays? Why aren’t users paying to test their own illicit, illegal drugs? Why do I have to pay? I don’t want to pay for Kris Faafoi to get down with it at Rhythm and Vines. I just don’t want to pay for that.

The final question, because I think I can do this in five minutes: will it stay at 850 grand—I presume, per annum—or am I right to say that, actually, every year this is going to go up as there’s bracket creep, and we see millions spent on subsidising other people to have pills that are so-called safe, even though they’re not? How much is this going to cost?

Sorry; just with apologies before I take the member—just to tell the committee that we are on Part 1. This is the debate on clauses 3 to 12A and Schedules 1 and 2. The question is that Part 1 stand part.

Thank you, Madam Chair. I thank the member Simon Bridges who’s just resumed his seat. He started off by saying he’s not here for a long time. I thought he was going to say he’s here for a good time—but he didn’t even give us the benefit of that—which is what some people say when they’re going off to enjoy themselves on Karangahape Road and nightclubs and what have you. But anyway, let’s see if I can answer his questions seriatim.

He started by asking why this wasn’t promised in the election. Well, actually, it was. We said that we are committed to the continuation of the regime—to have a regime that allows for drug-checking.

The member asked why it has gone from music festivals to—it took him a while to explain to me to where it’s gone from musical festivals to—anywhere. The point is that there are potentially dangerous substances, let’s call them recreational substances, consumed in a whole bunch of different settings and environments; not just at music festivals. We, in last year’s short-term legislation, stuck with music festivals because we knew there was an immediate need, and we could test out, if you like, setting up a regime that allowed us to do that.

But the reality is there are people who are consuming substances the authenticity of which, the reality of which, they do not know. And they should have access to it as well, because in the end, this is about keeping people safe. It’s about keeping people safe from illicit substances that can be traded without any verification about what it is, and what we saw from the exercise last summer at music festivals is that a lot of people—young people, in that situation—were kept safe as a result. There was a strong public benefit as a result. And just as those who go to music festivals and want to try out substances and really wanted to know what they are, so it is for people all year round in a variety of different settings—people who live on the streets, people who might go a nightclub, people who are using substances that have the potential to cause harm, particularly if they are substances that the person doesn’t know have been mixed in with what they think it is and could cause a lot of serious trouble.

So the idea is that this will allow a regime to be put in place that would deal with music festivals, orientation weeks, and what have you, but also those who are year-round consuming substances that come their way and they don’t know the safety of it. I mean, it’s not so long ago—it’s in living memory of that member and myself—when we had the synthetic cannabis crisis because people were purchasing stuff and consuming stuff when they simply did not know what was in it. It was causing severe harm—actually causing deaths. This is the thing, the mischief if you like, that we’re trying to remedy. So it is intended to be broader than just music festivals and orientation weeks.

The member asked whether this could mean people could set up outside local playgrounds and schools. No, because that’s not where these transactions are taking place and it’s not where people who are using substances from a questionable background need to have them tested. So that won’t happen.

Then the member asked why the person who’s getting the testing done does not pay for it. Because there is a public health benefit as a consequence. This is about keeping people safe. In the greater scheme of things, it’s actually not an expensive safeguard to have for people who, at a time in life, might indulge in substances that would otherwise cause them harm.

The member asked whether the costs will rise. We will make sure, as we do with health initiatives and public health initiatives in particular, that there is a regime in place that means that people can get access—and it doesn’t require them to be wealthy to do so—to testing services so that they can keep safe. That’s, again, what this is about. It won’t be expensive because it’s not expensive and we’ll support those who meet the conditions to get a permit and get a permit to carry out the testing and support them to do that job, because that is what it takes to keep people safe.

Thank you, Madam Chair. I don’t think that that answer was very convincing around the schools and playgrounds, because the Minister’s explanation was it would be where drugs transactions take place, and I’m reliably informed that outside schools is exactly where a number of drugs transactions take place. I don’t see anything in the legislation that would prevent a mobile service pulling up outside a school and actually performing their service outside a school. So could he perhaps answer: what in the legislation is going to restrict that? Thank you, Madam Chair.

I’m happy to respond to that question, and this comes up in debate sometimes, particularly on what members of the Opposition like to regard as moral issues. It’s a thing that actually doesn’t have to be legislated for; it’s actually called real-world common sense. Real-world common sense tells you—[Interruption]—and I know members have big gasps of breath, sharp intakes of breath, because this is a foreign concept: the idea that, you know, people might actually behave in a way that is consistent with basics that are common sense. So the members of the Opposition who sat on the committee and, indeed, who sat through the second reading, don’t appear to have proposed any other measures that are needed. It is not needed, because that is not the way the community who would benefit from this measure operates. So I give that assurance to the member. If she could stipulate some evidence of where this might be a concern, then she’s free to relay herself that experience. But it is not needed, because that is not where the demand for this sort of service comes in.

Thank you, Madam Chair, for the opportunity to take a call on this bill. I just want to reflect a little bit on what the Minister in the chair, the Hon Andrew Little, was just saying there. He said we want to ensure that we have these drug-checking services in the places where they purchase these substances. My colleague Penny Simmonds has mentioned the very real issue of drug dealers preying on our young people outside our high schools, and if the Minister in the chair was to go and talk to some high school principals and ask them about this issue, then he would get some real-world common sense from those principals. But I imagine he hasn’t actually done that with this piece of legislation.

The question here around this piece of legislation is whether this will protect people from illicit substances by testing those illicit substances. I’d like to ask the Minister where in this piece of legislation will it protect the young people who go along to a drug-checking service with some MDMA and the drug-checking service says, “Oh yes, you’ve got MDMA and there’s no adulterants in it, therefore it’s all good. Go—you know, have fun.”, because the real issue, and the evidence is clear that the real killer from MDMA is MDMA, not some adulterants which have been mixed in and which may be found out through this process.

The next question I’d like to ask the Minister in the chair is around the issue of inadmissibility of the evidence in the drug-checking service. The question I’ve got here is: for someone who deals drugs—I’m not talking about just a simple user; I’m talking about someone who deals drugs—and wants to take a couple of samples along to this drug-checking service, whether that be at a music festival, at K Road or at a university campus, or maybe outside a school, because that may be where the demand might lead these services and was to check their services, what is stopping that person from then using that information to say, “Yes, I’ve tested these services.”, and marketing those services to their sellers and then potentially demand a higher price for that substance?

I’d like to ask the Minister why that evidence is inadmissible in the courts and what the purpose of removing that admissibility is. And does it cover not only people who are using substances but does that inadmissibility also extend to people who are supplying substances to others as well? I think the Minister in the chair may want to reflect on that, because there is a real issue here in New Zealand with illicit substances. It’s not just the use but it’s the supply and it’s the peddling and it’s the misery which gets caused by the people who peddle these substances to our young people and who cause enormous misery throughout society.

So I’d like the Minister to spend some time reflecting on those questions and giving some clear answers which give confidence to New Zealanders that this is not going to provide an out of jail sort of way to get around it for drug dealers, but also to explicitly answer the question around whether this will provide any exclusionary zones around schools. Because I think parents up and down New Zealand will have very severe concerns about that part of this legislation if there were not exclusionary zones inputted into this legislation.

I think, to assist that member, first of all, this is a bill dealing with those who wish to consume substances and who wish to have the substances checked at the time they wish to consume them. I’m not quite sure how much consumption of illicit substances happens at the school gate, but that might be a reflection of the member’s own experiences.

I’m happy to further assist the member by reading the bill for him, because clearly he hasn’t.

💬 Hon Member: Go on.

I will, because he only needs to look at clause 10, which inserts new section 35DDF, to know that it is a requirement—and the Health Committee put this in, actually—for a drug-checking service to give harm reduction advice to a person whose substances they have just checked. So it’s not enough just to kind of test it, say, “This is what it is.”, and hand it back. They are required to give harm reduction advice, and the harm reduction advice has to be in a manner and a form and a language that is accessible to the person with whom they are dealing. So that is there—that is all there. The member only had to look at the bill to know that that was the case.

In terms of the member’s concern that somehow a peddler of drugs will go and have some kind of a validation test that they can wield in their advertising, the advice that will be given to a person whose substances are tested is verbal advice; no more has to be given. So in the end, a person who has substances, whether they got it from a peddler or from a friend or picked it up or whatever, in the end, they are the ones who have the opportunity to get the assurance to know that what they are consuming is going to be safe. It does not allow a peddler to get a kind of a certificate of approval for the stuff that they are trying to sell.

Thank you very much, Madam Chair, and thank you to the Minister for providing a bit of an overview in terms of this bill. I was actually a member of the select committee that went through this, and I do want to acknowledge the many parties that did provide a submission as part of that select committee process; in particular, St John Ambulance of which I am a volunteer member. I guess my experience related to this bill—and I’ve got a couple of questions for the Minister around in particular new section 35DDF, inserted by clause 10, which I’ve just slightly touched on there around the provision of appropriate harm reduction advice.

The other aspect I’m interested in is in new section 35DDI, which is the data provision or information and data that is provided to the Director-General of Health in regard to dangerous drugs. What I’d like the Minister to provide a little bit of context around is in regard to those dangerous drugs. What are some examples, in terms of that, where he would foresee that information that would be provided through to the director-general—and for what purpose would that information be used in order to, I guess, provide some public benefit?

In regard to the harm reduction elements, I’m interested to get into the practicalities around how hard or how overt that advice is going to be, and particularly also the provision of advice to individuals or minors. So there I’m referring to individuals that are under the age of 16 or potentially are when they’re seeking the advice under the influence of alcohol, so their competency in order to be able to understand information, particularly advice, their ability to comprehend the implications of taking that drug or not, and the follow-through around that—how that is assessed by the person providing that harm reduction advice. Because I think that is a pretty significant point in terms of whether the individual may or may not take the drug.

My experience having worked at SIX60 concert in a capacity as a St John volunteer ambulance officer for the last two concerts in Auckland—I’ve dealt with multiple patients; one was critical. We actually had to physically ventilate the patient, one that was having a seizure in the mosh pit as the result of drugs, and trying to extract them in darkness with torches and trying to manage that is significant. The reality is no testing would have avoided the situation in that regard, and I think the information for those individuals of the risks around drug taking—for most, they may say, “Look, there’s no risks.”, but I personally have seen the consequences of drug taking and the implications that it does have for individuals and their families. So I’d appreciate some feedback from the Minister on that.

I’m thankful to that member for the insight he’s shared with the experience that he has had at those concerts. I might say, too, when I was the custodian of a student union building and was on duty at some of the big concerts, I saw some pretty horrific consequences of overconsumption of alcohol that were distressing, including a person who after a night on the tequila had walked over the balcony completely out of it, landed on his back and put a bone through his hand, and all the rest of it, and I had to attend to him.

But the point that he makes, that actually even drug-checking services might make it inevitable that there will be people who can’t be prevented from consuming dangerously; I’m not sure that is necessarily the case. The availability of drug-checking services in a sense in an environment where there is no judgment made and it’s accessible, I think, can go a long way to changing behaviours, as I think the Victoria University research on last summer’s activity around drug-checking services showed. Two-thirds of those who used-drug checking services changed their behaviour, either declined to consume at all or reduced their level of consumption, or took away material that was about harm reduction.

So to answer the two specific questions the member asked—what L data would go to the director-general under new section 35DDI—I was checking to see whether the bill went up to section 35DDT, because that might deal with some of the problems we had, but no, it didn’t. But new section 35DDI—the purpose of providing that data to the director-general is again a public health approach: let’s build up a profile of the data that’s been gathered, the sort of drugs that are being consumed, the risks that are being taken, because that can then inform some broader public policy, public health initiatives to address dangerous or harmful drug consumption.

In terms of the second question, how I view that advice, I think the bill makes it very clear in new section 35DDF(2), “The advice must be about the following harms and how they may be reduced”. And then, if the test is a positive test, there’s a certain amount of advice that has to be given, and if the test is not positive, nevertheless, advice has to be given on harm reduction and the risks and dangers associated with the consumption of that particular substance or any substance of that sort of nature.

So I think that is covered off, and I’m thankful to the committee, who actually put that provision in. I think it’s a useful provision to have and it further sustains the objective of the exercise, which is harm reduction and actually being able to inform, particularly, young people for whom this is often an experimental kind of time, an experimental activity, just to let them know that there are hazards and dangers associated with drugs. Even if the drugs are what they say they are, there can still be hazards that go with it and every effort should be made to keep people informed about that. So I thank the member for those questions. I’m confident that they are covered off in what is in the bill. And again, it is about keeping people safe.

Thank you, Madam Chair. I’d just like the Minister to confirm whether section 14(4) of the Misuse of Drugs Act, which provides for the Minister to be able to give approval to grant a licence to any person who has had a conviction under the Misuse of Drugs Act, Darius Fagan means that the Minister could approve, for example, a gang member who had previously had drug convictions to then, at some stage later, get a licence to do the drug testing?

I’m just trying to get the section the member Penny Simmonds referred to, which I think was in, clause—I’m not sure if she said clause 14(4), is that what the member wanted? I’m just looking for clause 14. There is no clause 14(4). I think there is, however, a clause 11 that has a section 37B that relates to “Regulations relating to drug and substance checking service providers”, and there’s conditions that have to be met in terms of that, and they are laid out there for all the world to see.

So regulations must prescribe various requirements that a drug-checking service must have, must also prescribe the form of licences, conditions of licences, and there’s a range of other things there as well. So subsection 2 of that section 37B, which is part of clause 11 of the bill, also says regulations may, without limitation, prescribe conditions that specify how the service provider must comply with the conditions imposed in the earlier subsection, and any other requirements.

So a lot will depend on, or turn on, what happens in those regulations, and, also, then schedule 2 of the bill lays out conditions for decisions on licence applications. So the first condition is: the Director-General of Health may issue a licence if satisfied that, firstly, the applicant is suitable; and secondly, the applicant’s proposed service model, and what have you. So the director-general has to be sure that the person is suitable. I know the National Party has an obsession about gangs and gang members. In the end, this is a piece of legislation about keeping people safe and about people with the right competencies and the right skills and the right profile to do this important task that will keep people safe.

I don’t think the question has been answered yet. I understand that the Minister can give approval to grant a licence to a person who has been convicted under the Act. Can the Minister confirm whether that’s correct or not? Thank you.

It would help in the committee stage for members to refer to the specific parts of the bill. In relation to that, the member refers to a generality. I’ve taken the member through the regulation-making exercise that is now available to the Governor-General by Order in Council on advice from Ministers, and, indeed, then when it comes to licences, requirements that must be met. So I’m not quite sure—if there is a specific part of the bill that the member wants to ask questions about, the member should refer to it rather than just sort of raising generalities, because all she can expect in return is generalities about the bill.

I refer to Part 1, and to clause 10, which inserts new section 35DDE, Minister, by my next question. So it relates in regards to the collection of information around the individual when they are going to participate or get some of their drugs tested. And what I’d like the Minister to articulate is in terms of subsections (2)(a) and (2)(b)—paragraph (a) refers to the fact that someone is not required to disclose personal or demographic information: age, sex, gender, or cultural background, but then following that there’s a paragraph to say that, actually, if a service provider does wish to collect that, then they can do so. So what I’m looking for from the Minister there is—and I know in the select committee process there was quite a lot of conversation around the collection of personal information and the pros and cons around that. I think St John’s in particular were one of the providers that noted the ability to collect some information may or may not provide some level of benefit for them.

And I appreciate that the Minister’s just seeking a little bit of advice and guidance, so I will just continue to elaborate on this point for a little bit longer just so that we’ve got a bit of time. But I think this is important because one of the aspects that was brought up in a lot of the submissions from young people in terms of this bill was the concerns around whether the provision of information would form a barrier or not in terms of them seeking advice. And I just want to get a little bit of comfort from the Minister on whether he feels like we’ve landed in the right place in regards to that or a little bit more context, if I may, Minister.

I’m going to ask the member to heckle loudly. He referred to a clause (2)(a). I’m just trying to understand which—is he talking about clause 10, and this is actually new section 35DDE, subsection (2), paragraph(a)?

💬 Simon Watts: Yes.

That is that part, OK. Then, in that respect, that is the regime that requires accurate and appropriate harm reduction information to be given, as the member will see, and then lays out in that subsection (2), in those various bits and pieces there, how the approach is to be taken. So if the test indicates the likely identity, then the advice should be about that specific drug that the person has surrendered for testing. Now, if the test doesn’t indicate the likely identity of the drug or substance but the provider considers that they are able to form a view on its likely identity, then the drug checking service can provide information on that drug or substance that they think that it is and the harms associated with that particular drug or substance. And in any other case where the test doesn’t indicate the likely identity of the drug or substance, nevertheless the harms associated with taking a drug or substance of an unknown identity. So it covers all those off. This is about the person who takes their drugs in for checking getting some information either about the specific substance that they know that is tested positive or general information about the risks associated with drug taking generally.

And I might add, because I’ve now identified what it is that the member Penny Simmonds was asking about in Schedule 2 of the bill, and I refer her to clause 4 of Schedule 2 and subclause (2) “The Director-General of Health must not issue a licence without the Minister’s approval if any relevant person, or an entity of which any relevant person was a responsible person at the time of the conviction or revocation,—(a) has been convicted of an offence against this Act”—that’s the Misuse of Drugs Act—“or its regulations; or (b) has had a licence under this Act”—including, no doubt, a licence to do this—“revoked for failing to comply with [the conditions]”. So if the member is asking whether there are circumstances in which a Minister might give approval for that, I cannot imagine. This is about having the right people and appropriate people carrying out the service. It carries a level of responsibility and maturity, and those are the people who we would want permitted to carry out tasks under the bill.