Drug laws, mixed messages and failed expectations, and tens of thousands in legal limbo

Jacinda Ardern has taken legalisation and decriminalisation of cannabis off the table, instead outlining three areas to look at, each of which still leaves thousands at the mercy of police.

But the new Police Minister is sending a clear message about how police discretion should be applied.

Dr Huhana Hickey is running out of legal cannabis medicine and can’t keep spending like she has – $40,000 in the past five years.

Born premature and suffering from multiple sclerosis, Hickey’s daily mix of morphine, gabapentin, tramadol and codeine was destroying her liver and kidneys.

So she started using the only legal cannabis medicine doctors can currently prescribe – Sativex – for $1450 a month, later switching to Tilray, which specialists can prescribe.

“I had a lot pain because my MS sits in my neck, and that causes spinal problems, spasms, pain, headaches. Now I can be well enough to work, to socialise. I can engage.”

But it’s not sustainable.

“I’ve spent my retirement money, all of our savings, I’ve cashed in heirlooms, sold antiques to get this cannabis because it saves my life.

“I will be dead in 12 months if I have to go back to morphine, gabapentin, tramadol, codeine.”

With a dwindling supply of Tilray and increasing debt, she is considering joining thousands in the illegal medicinal cannabis market.

Affordability of legal cannabis medicineis one of the issues Prime Minister Jacinda Ardern identified in the wake of the cannabis referendum result.

Legalisation would have given suppliers of illegal medicinal cannabis – so-called “green fairies” – and their customers some legal breathing space.

But with a “no” result and the huge gulf in price difference between their products and legal ones, the illegal market is here to stay – and those operating in it continue to face the possibility of criminal charges.

The same legal limbo applies to the those involved in the two others areas Ardern has identified: giving clear legal grounds for drug-checking at festivals to prevent people from taking a drug laced with something more sinister, and ensuring last year’s law change – about police charging for drug use/possession only if it’s in the public interest – is having the desired effect.

But with only two sitting weeks of Parliament this year, a law change for drug-checking is unlikely to come in time for the summer festival season.

And while the Government is now saying that anyone caught with drugs should almost automatically receive a health referral, police data shows that more than 100 people a month are being charged.

The tens of thousands who continue to be at the mercy of police discretion is a sign of the need to repeal and replace the 45-year-old Misuse of Drugs Act (MODA), health and justice advocates say.

That is supported by independent reports including a 2011 Law Commission review, which said the law was no longer fit for purpose and inconsistent with the official policy of minimising harm.

Health Minister Andrew Little, however, has no immediate plans for a wholesale review, but Police Minister Poto Williams is making her expectations clear about how police discretion should be applied.

To prosecute or not to prosecute – the police conundrum

Williams acknowledged the difficulty for frontline police in enforcing a law that criminalises drug use, which seems contrary to the Government’s national drug policy statement to reduce harm.

Convictions, for example, are one of the social harms that blights a person’s work and education opportunities, and eliminating them was a rationale behind the “yes” campaign in the cannabis referendum.

Williams told the Herald that police discretion should be viewed through a lens of “what harm is being done at that time”.

Policing was also about acknowledging reality, she added, including the widespread prevalence of cannabis and the estimated 70,000 people who use it regularly.

Police Association president Chris Cahill said the referendum result – 50.7 per cent against legalisation and 48.4 per cent in favour -was one reason why officers were “very confused” about how to police cannabis.

“They’ve got a law that says cannabis is illegal, they have [last year’s law change] that says they shouldn’t prosecute if it’s not in the public interest and they should make a health referral, and now they have half the country saying cannabis should still be illegal and half saying it shouldn’t be,” Cahill said.

“If you work on the theory that they should police with the consent of the public, which 50 per cent do they choose?”

Williams said the equivocal message from referendum voters was not a signal that the public wanted a hard-line police approach.

That is already the case, with Justice Ministry figures showing only five people going to jail in 2019/20 for cannabis use/possession as their sole offence.

She supported police to continue moving towards more warnings and away from “the hard hammer to crack the nut”.

“I’m an advocate of ‘less is more’ in terms of the justice or the police response. A conviction for cannabis can impact a young person’s future.”

She added that police resources should be directed to more important issues than cannabis.

“I want to support police to not have to spend time to do this. There are lots of others things they could be doing -where are our priorities?”

The gulf between legal and illegal medicinal cannabis

In April this year, new regulations for medicinal cannabis came into effect for pharmaceutical-grade products, which are expected to hit the market in the middle of next year.

But they are expected to cost in the hundreds of dollars because they need to meet Good Manufacturing Practice standards in the Medicines Act.

Last week the NZ Medical Cannabis Council called for the Government to consider a lower standard or a state subsidy to bring down costs.

Meanwhile, if green fairies want to go legit, they’d have to fork outan estimated $20,000 for the required licences.

That has prompted the Auckland Patients Group to call for an amnesty for suppliers, carers and users of illegal medicinal cannabis; a legal defence currently exists for users, but only if they are palliative patients.

Little is yet to have a briefing on medicinal cannabis, but if legal medicines are too expensive, he said “all options would be on the table”.

Effective decriminalisation of drug use

The Government still wanted to minimise the harms that legalising cannabis would have eradicated, Little said.

Decriminalisation would also minimise the social harms that come with a conviction, and loud voices are backing it in the wake of the referendum result, including elements of the “no” camp such as the Salvation Army and Auckland Councillor Efeso Collins.

Last term the Government also received independent reports – including Turuki? Turuki?, from the Safe and Effective Justice Group, and mental health report He Ara Oranga – calling for an end to criminal sanctions for personal drug use.

But Little said decriminalisation would disrespect the referendum result, and instead he wants to ensure last year’s MODA change is having the desired effect.

That change codified police discretion into law for prosecuting drug use/possession, but users shouldn’t be charged unless it’s in the public interest.

The key clause is this: “When considering whether a prosecution is required in the public interest, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial to the public interest.”

This should make a health referral the default police response, Little said – which is effectively decriminalisation of drug use.

But a vastly different reality is revealed in police data comparing the year before the law change with the 10 and a half months afterwards.

Where drug use/possession was the most serious charge, only 10.7 per cent were given a health referral.

The proportion of people being prosecuted has dropped from a third of drug users to a quarter, with the rest given warnings or alternative resolutions. In real terms, that amounted to 1200 people being charged since the law change, or about 114 people a month.

Little said that number should be zero, or thereabouts.

“Our expectation is that the default position would be, if drug possession was the most serious offence or the principle criminal offending, then it would lead to a health referral.”

One issue to look at was whether there were enough health services to give police confidence to offer referrals, he said.

“We’ve got the intention and the objective right. The question now is: ‘Are we achieving what we set out to achieve?’ The early statistics would suggest we’re not there.”

He has ordered a joint review – “sooner rather than later” – led by the Health Ministry and police.

Mixed political messages

The Police Association said Little seemed to be very clear about what Parliament wanted the law to achieve.

“But it’s not the same message when the law was passed,” Cahill said.

Back then, the law change was described as de facto decriminalisation by the Drug Foundation, the Law Society, the Greens (in a good way) and the National Party (in a bad away).

But senior ministers including the Prime Minister dismissed this, saying it was only putting into law what police were already doing.

“It is the police themselves who have suggested this would simply codify their practice in law,” Ardern said during Question Time on May 13 last year.

Coalition partner NZ First agreed, and put forward an 11th hour change to reinforce this. It clarified that a health referral should only be ordered if it is “more beneficial to the public interest”, rather than to the individual in question.

Even with that change, Cahill expected the number of police prosecutions to have halved.

And he expected police to give health referrals to half of the drug users they came across, allowing for the fact that they can be refused and, for some, they may not be needed; the majority of cannabis users, for example, do not experience health issues.

Cahill had sympathy for frontline police because the wording in the law was “far from black and white”.

“If they [politicians] don’t believe the law’s being interpreted the way Parliament intended, they should make the law clearer.”

Little didn’t rule out changing the law again.

“We need to look at what is happening and whether the problem is with the law or frontline [police] practice or a combination of both, in which case we need to know what we need to do at both ends.”

Police said in a statement that they have responded to the law change by reducing prosecutions and increasing warnings and alternative resolutions.

“Police are continuing to review our approach to personal drug possession and use.”

'Systemic racism'

Another social harm cannabis legalisation would have minimised was the way the law is disproportionately applied to Māori – and last year’s law change hasn’t changed that either.

Police appear to have made a concerted effort following the law change to prosecute less, but didn’t apply this equally and eventually reverted to old habits.

For Māori, police used alternative resolutions for cannabis use/possession more than prosecutions for only one month. For non-Māori, the greater use of alternative resolutions lasted for four months.

The breakdown for police action since the law change for all drug use/possession is:

• For Māori, 28 per cent went to court, 61 per cent were given a warning, and 10 per cent were given alternative measures such as Youth Aid referrals, family group conferences, community justice panels, or no further action.

• For non-Māori, 23 per cent went to court, 65 per cent were given a warning, and 11 per cent were given alternative measures.

Little, who was previously Justice Minister, said there was “systemic racism” in the criminal justice system – and not just for drug use.

“It’s across the board, and I think the police hierarchy would admit they still have work do to change some of the habits and attitudes that are prevalent on the frontline.”

Police Commissioner Andy Coster has said the “appalling” criminal justice outcomes for Māori are unacceptable.

The Police Association said the data was clear but the behaviour behind the data wasn’t.

“It could be bias, unconscious or intentional, but it could also be something such as previous convictions that sways the decision [to prosecute],” Cahill said.

“It’s important that police drill down and understand the drivers of that.”

The Police Minister said tackling police bias was a major focus of hers, and she acknowledged the police programmes to counter it including increasing diversity in the force.

“This stuff takes time but it is my job to keep pressing that home,” Poto Williams said.

“We’ve got room for improvement, but we are heading in the right direction.”

Drug-checking – 'We don't need Govt permission'

Williams agreed with her predecessor Stuart Nash about the value of drug-checking to ensure people weren’t taking a substance that was laced with something far more dangerous.

Last season, drug-checking organisation KnowYourStuffNZ tested 1368 samples between April 2019 and March this year, and 86 per cent of the time the drug was what users thought it was.

Under section 12 of the MODA, a person breaks the law if they knowingly allow their premises to be used for a drug offence, such as use/possession.

Nash wanted to make it clear that drug-checking at festivals was legal but was blocked by NZ First, which asked for more research.

That research is not expected to be completed until the end of this month, and with only two parliamentary sitting weeks this year, both Williams and Little said a law change in time for the summer festival season was unlikely.

Managing director Wendy Allison said KnowYourStuffNZ still planned to operate this summer, adding that they’ve never been threatened with prosecution or harassed by police, nor have any event hosts as far as she knows.

She looked forward to a law change that would make their legal position unequivocal, but in the meantime: “We don’t need the Government’s permission to operate.”

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