6 May 2019

Alexander Gillespie: New Zealand's drug policy revolution

9:00 pm on 6 May 2019

By Alexander Gillespie*

Opinion - A revolution is occurring in New Zealand. Our drug policy, which has been based on prohibition and criminalisation and tied to an expanding variety of illegal drugs since 1901, is being radically overhauled.

drug use, substance abuse, addiction and people concept - close up of addict hands with marijuana joint

Photo: 123 RF

This overhaul is occurring because we like most of the rest of the world face waves of illegal drugs, many of which continue to diversify and grow in both demand and supply. In our case, the best nationwide evidence via testing of wastewater has shown that our profile is different to others.

Our heroin use is very low. Fentanyl (the drug which is causing massive harm in the United States at the moment) is currently low, about 3 grams per week. Cocaine is about 700 grams per week, which was lower than expected. MDMA (the basis for drugs like ecstasy) has an estimated consumption rate of about 4kg each week, while approximately 16kg of methamphetamine is consumed each week in New Zealand. The benefits of this illegal trade go straight to the criminals, with an estimated weekly street value of $9.6m or approximately $500m annually.

The average death toll from illegal drugs in New Zealand, depending on how the counting is done, is an overdose rate of about 38 per year and about 50 deaths from synthetic cannabis. Before this worst point is reached there are large social costs. The entire illegal drug harms (personal and social) and intervention (via government agencies) system costs the country about $1.8 billion per year.

In addition to the damage done to everyone around them, the users often end up damaging their own lives and future prospects, including with criminal convictions. A total 3188 people were convicted with possession or use as their most serious drug charge in 2018.

The question, after a century of a global War on Drugs, is whether there is a different approach to this problem? The answer to this problem is twofold.

Of the softer (but still potentially harmful) drugs like cannabis the trend is towards legalisation and regulation and treating this illegal drug like legal drugs which are already controlled. New Zealand is on this pathway with its regulation of medical cannabis and a promised referendum on recreational cannabis.

Of the other drugs (including cannabis if the proposed referendum fails to legalise) the alternative model most people reach for emerged from Portugal in 2001. The essence of this is to crack down on those who sell all illegal drugs, while treating the users of such drugs (if holding less than 10 days supply) as citizens in need of help, not criminals in need of prosecution.

That help is then given by a panel made up of legal, social and medical professionals. For each person referred, the group will evaluate the person's situation, assess how it fits into their larger social context, and link them into helpful agencies. For recidivists, it can also impose sanctions like community service or fines, but not for first time offenders.

Although far from utopia, as addiction and crime are perpetual, and some soft drug usage increased for young people, the other results of the Portuguese approach have been positive. Death rates from illegal drug use (especially heroin) have declined, and problematic/addicted drug users have decreased. So too have the impacts of drug related social costs, and the number of people incarcerated for drug offences.

Our Parliament is currently walking down this Portuguese road. Sellers will still go to jail - and in our case, we are getting tougher with the Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill aiming to give those who are selling the illegal drug, which is killing more Kiwis than any other, up to 14 years in jail.

In terms of getting softer on users, the proposed Misuse of Drugs Amendment Bill is recommending, with regards to possession and use of any controlled drug, that the police have a clear 'discretion to prosecute'. The new law adds that this discretion 'should not be brought unless it is required in the public interest' which has to be weighted as to 'whether a health-centred or therapeutic approach would be more beneficial".

This is a watershed moment, as more than 100 years of thinking when dealing with drug users is about to go out the window. Police discretion is getting entrenched into law and a presumption not to prosecute consumers of illegal drugs it being made clear.

While this approach should be welcomed, three problems remain.

First, the public interest in this matter is not defined: we need a clear policy statement of where we are aiming, and how success will be measured.

Second, the threshold for when this discretion should be used is not clear.

Third, the burden of the decision is put on the police, without the wider approach of legal, social and medical help, as is utilised in Portugal.

This wider approach is essential if the goal is to reduce this problem, as opposed to only stopping increasing numbers of incarcerated citizens. The agencies and community groups, in addition to the police, that have the best hope of making a difference, must be adequately resourced and at the forefront of the solution.

* Alexander Gillespie is a professor of law at Waikato University. He specialises in international law and is interested in the way that comparative experience is applicable to New Zealand.

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