Motions — Misuse of Drugs (Classification and Presumption of Supply) Order 2022—Approval

Thank you, Mr Speaker. I move, That, pursuant to section 4A of the Misuse of Drugs Act 1975, this House approve the Misuse of Drugs (Classification and Presumption of Supply) Order 2022, made under section 4 of that Act.

This is a reasonably technical motion that, with the approval of Parliament, allows then the order to be promulgated and for drugs listed in the order to then appear in the appropriate schedule in the Misuse of Drugs Act. This is a measure designed to provide protection from harm in the face of a growing presence or risk of presence of the drugs listed so that our communities and our people are kept safe from them.

The nature of the Misuse of Drugs Act does attract some commentary from some quarters as, amongst other things, it is about making sure that certain substances are appropriately classified and, with the appropriate level of classification reflecting the level of harm that they pose, then there are measures available if those drugs are abused or improperly used.

These orders providing for the classification of drugs in these circumstances are on the basis of advice from the Expert Advisory Committee on Drugs, and their judgment is that, of the drugs listed in the order, the current controls and restrictions on them do not adequately reflect the potential harms and risks that they pose. Approving this order means that we not only provide greater safety in relation to the presence of these particular drugs in our community but meet our international obligations under a variety of international instruments: the United Nations Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Some of these drugs are ones that are already present in New Zealand but now pose a level of risk that they need to be reclassified. Some are drugs that we know from intelligence are abroad and there is a much higher potential or risk that they will make their way into New Zealand. These are measures to make sure that, with the appropriate classification, it affords proper protection to New Zealanders who might otherwise be subject to their use or abuse. On that note, I commend the motion to the House.

The question is that the motion be agreed to.

Thank you, Mr Speaker. This motion came to the Health Committee. It is very administrative, and what it looks to do is to classify or reclassify 49 substances under the Misuse of Drugs Act. These are very serious substances. They include alpha-PVP, which is a controlled drug analogue; amides and carbamates, which are precursors to methamphetamine; specified fentanyl analogues, and we know that overseas that fentanyl has become one of the pre-eminent drug concerns; and specified synthetic opioids, and these are psychoactive substances when used for the primary purpose of inducing a psychoactive effect. The order also talks to prescription medicines, controlled drug analogues, and a range of chemicals that don’t fit into any one particular category.

It was explained to the Health Committee that these were all recommended by the Expert Advisory Committee on Drugs and that classifying substances in this order is not about criminalising people, but it’s more about people who use harmful drugs—how we can give authorities the tools to better deal with people, and, particularly, to have better tools for those who manufacture and supply harmful drugs. They said to us that doing this will provide better investigative powers for the New Zealand Customs Service and the New Zealand Police to disrupt supply.

We asked about some of the implications on particular service areas, particularly midwives and their prescribing of fentanyl in a legitimate way. The ministry said that in consultation with the midwifery groups, the drug regulations had been amended to allow fentanyl and tramadol to be added to the list that midwives can prescribe.

Can I point out Penny Simmonds’ member’s bill in a similar area, which looks to reclassify the term “medical practitioner” to authorise prescribers as it relates particularly to nurse practitioners, who might also be excluded from obtaining section 29 drugs. This is a similar process that’s happened to midwives here so that they’ve been allowed to prescribe fentanyl.

These are very serious medicines or precursors with the ability to create great harm. The select committee unanimously supported the progress of the order, including our Green colleagues on that select committee, and so we had unanimous support for this order to come to the House. The National Party supports this order through to its conclusion. Thank you.

I seek leave of the House for an extra five minutes on this debate.

💬 DEPUTY SPEAKER: Leave is sought for that purpose. Is there any objection? There is objection.

CHLÖE SWARBRICK: Well, I’ll be as fast as I can then. The Greens are opposing this Misuse of Drugs (Classification and Presumption of Supply) Order—

💬 Chris Bishop: Point of order. I seek leave of the House for Chlöe Swarbrick to have an extra two minutes for her speech in this debate.

💬 Hon David Parker: Point of order. A member is not able to seek leave on behalf of another member.

💬 DEPUTY SPEAKER: Yeah, that’s not dramatically different from the previous leave sought.

Brooke van Velden: Point of order.

💬 DEPUTY SPEAKER: Another point of order, Brooke van Velden?

Brooke van Velden: I seek leave for the Green Party to have the ACT Party’s extra five minutes in this debate.

💬 DEPUTY SPEAKER: Yeah, that’s in the same context. That would be asking me to overrule a determination of the Business Committee. [Interruption] Oh, I stand corrected. Normally, that would be done out—but that’s fine. If you’re doing that, we’ll do a 10-minute speech.

CHLÖE SWARBRICK: Brilliant. Thank you, Mr Speaker, and thank you to the ACT Party. So I’m contributing to this debate today—and thank you, as well, to the member opposite, Chris Bishop. I’m standing on behalf of the Greens today to oppose the Misuse of Drugs (Classification and Presumption of Supply) Order 2022. I think it’s really important to be given this time to unpack exactly why that is, and we do this because we fundamentally oppose the Misuse of Drugs Act 1975 and there are so few opportunities in this House to discuss or debate this Frankenstein law, of which this Order in Council only served to continue to pump with metaphorical steroids.

For those who are listening and uninitiated, I think it is really important to unpack this mechanism that we are grappling with today in the form of an Order in Council. This isn’t quite a law that we are passing but an Order in Council, which needs parliamentary approval. This is important to point out because the mechanisms that exist within the enabling legislation—that is, the Misuse of Drugs Act 1975—mean that if you want to classify or reclassify a substance that is, in practice, effectively introducing or increasing criminal penalties associated to a substance, you only need an Order in Council like this. That has a turn-around of about a month. That is a very different process to one that exists if you were seeking to declassify or to reduce the criminal penalties associated to any given substance as listed in the Misuse of Drugs Act 1975. That is a really important point to make because, effectively, we have baked into that law a ratcheting-up that makes it incredibly difficult to change or to reverse, especially when new evidence comes forward.

I’ll unpack further those issues with regard to the very narrow remit that the expert advisory committee has. So if you were seeking to try and declassify or to reduce the criminal penalties associated to a substance because new evidence came out about where it sits in relation to harm for other substances, you can’t do this passage of an Order in Council, which takes a matter of a few weeks; it’s required for you to pass an amendment bill to the Misuse of Drugs Act 1975. And as the Greens, in particular, have experienced over the past several years and definitely in the last two decades, in attempting to make those amendments to declassify or reduce criminal penalties as associated to certain substances and the massive months’ worth, if not years’ worth, of process to go through that first reading, second reading, committee of the whole House, and third reading stage—let alone the months’ worth of opportunity to scrutinise something at a select committee—it is quite frankly unfathomably unfair that we have a situation where you can see penalties increased through a process as swift as this one in Order in Council. So, once again, I want to thank my colleagues—particularly Brooke van Velden—for enabling me to unpack this in this debate today.

This is, again, as I’ve already alluded to, yet another example baked into the fundamental problem of the Misuse of Drugs Act, which biases and, arguably, actually incentivises criminal punishment whilst making any alternative approach, actually, incredibly difficult to achieve. The same has to be said of the establishment of the expert advisory committee in the early 2000s by virtue of amendment. Now, the expert advisory committee was established, importantly, to try and provide some expert basis with regard to how substances were being classified in relation to each other with regard to harm. However, the remit of the expert advisory committee is such that they can only recommend where substances should be classified—that is, how much of a criminal penalty they should get—as opposed to being able to recommend any alternative approach, such as evidence-based approaches, to actually reduce drug harm in our communities. Literally, all the expert advisory committee can, therefore, do is make recommendations around ratcheting up or increasing or introducing new criminal penalties associated to substances as listed in the Misuse of Drugs Act. They cannot make recommendations that are evidence based such as Te Ara Oranga, the fascinating and fantastic programme rolled out in collaboration between DHB and police in Northland, which—interestingly, it appears as though we have consensus in this House—is a phenomenal programme that is in need of expansion. Just for those who are uninitiated, Te Ara Oranga is a programme that seeks to reduce methamphetamine demand by targeting those who are currently caught up in the supply chain. It has seen a 34 percent reduction in harm and criminal offending, and for every dollar invested is returning between $3 and $7.

I do need to note, with regard to particularly this classification and presumption of supply Order in Council that we’re considering today, that it’s quite the opposite kind of approach and, again, one that is disabled fundamentally by the Misuse of Drugs Act, in that it basically seeks to decriminalise those who are experiencing addiction problems and in turn supports them with drug harm minimisation.

While the drugs classified in this Order in Council are dangerous, as I have always said, and as the Greens have always maintained, when you consider that a substance in and of itself can be harmful, the next question has to be, how do you go about reducing that harm? We know that ratcheting up criminal penalties won’t reduce drug harm. In fact, the only thing that criminal prohibition with regard to substances has ever achieved is in fact more drugs available on the market, evidenced by the fact that we have had numbers of these Orders in Council over the past two decades, which have continued to classify more and more substances, in turn requiring the classification of more and more substances, because it turns out that when you criminally prohibit something, those who are baking up illicit substances in their kitchens or otherwise will become those home chemists and create even more substances, which in turn creates more drug harm, more people in the prison system, more families torn apart, and more lives ruined.

It’s also really worth, I think, pointing out another one of the fundamental problems with regards to the presumption of supply, which, of course, this Order in Council goes to the heart of and others have alluded to in their contributions. This is one of the very rare areas of law where the burden of proof is reversed. To unpack that, if you are somebody who was accused of a crime by the police and by the State, you are put into the courts where, typically, the usual presumption is that of innocent until proven guilty. It is the case with the Misuse of Drugs Act that when you have a threshold above what is noted in the Misuse of Drugs Act classification—which, again, this Order in Council is seeking to amend for a schedule of 49 different substances—you are then in that court experiencing a reversal of that burden of proof. In layman’s terms, that means that instead of the State having to prove you guilty, you yourself are being presumed guilty and having to prove your innocence.

💬 Dr Duncan Webb: Point of order, Mr Speaker. This is a motion on a schedule to the Misuse of Drugs Act, not a lecture on burden of proof, in respect of the Misuse of Drugs Act. Ms Swarbrick’s wandering all over the place without any real reference other than the odd gratuitous one to the schedule.

💬 DEPUTY SPEAKER: I’ve been listening very carefully to the member’s speech and I do agree to a point what the member has raised. However, I have given the member a wide scope and there have been times within her speech which have been relevant, and I have to have a judgment of the overall relevance to the motion on the table. It is, in my opinion, not beyond the ability of the member to bring everything that she has said into order, and I would ask the member in the last two minutes to do that.

CHLÖE SWARBRICK: Thank you, Mr Speaker. Because, of course, today we are debating a motion regarding the Misuse of Drugs (Classification and Presumption of Supply) Order 2022, which makes amendment to the Misuse of Drugs Act 1975, particularly with regard to classification and presumption of supply. That is why I am referring to the reversal of the burden of proof as laid out in the Misuse of Drugs Act 1975, when it is presumed that you are supplying a substance because you are found to have over a certain threshold. Of course, this Order in Council seeks to classify or reclassify 49 substances. I therefore think, for those following at home, but also for sake of Hansard, that it is incredibly important that we contextualise what this Order in Council actually does in practice.

So, summarising then, this reversal of the burden of proof has been found to be inconsistent with the New Zealand Bill of Rights Act and the Supreme Court. Also, former Attorneys-General have found it to be so. Therefore, it is the case that the Greens must oppose this notice of motion regarding the Misuse of Drugs (Classification and Presumption of Supply) Order 2022, because what it does is simply further entrench a Frankenstein law which biases criminal prohibition and the punishment of those who, simply and frankly, need an evidence-based approach. Drugs, it seems, are winning the war on drugs, and I believe that it’s time that this House gave evidence a chance.