Our watered-down synthetic drug law failed to prevent 25 deaths. Will an upcoming amendment make any difference?
UPDATE: The amendment to the Psychoactive Substances Act has passed its first reading in Parliament in a 65 to 55 vote. Labour and the Greens opposed increasing jail time for suppliers of synthetic drugs, but National and NZ First voted in favour of the change. The bill is now at the Select Committee stage and public submissions are being called for until May.
It was meant to be a world-leading move; a drug law that instead of trying to quash an evolving synthetic drug industry, would let people legally get high if the substances were proven safe.
But so far, it hasn’t worked. In fact, the law inadvertently drove the drugs underground, handed over power to the black market, and contributed to the death of dozens of New Zealanders. Synthetic drugs are now considered one of the deadliest illegal substances in the country.
The Psychoactive Substances Act (PSA) passed almost unanimously in 2013 but quickly lost political support. Communities began to protest the sale of “legal highs”, an uproar about animal testing surfaced, and a looming general election scared politicians into a U-turn. On top of that, a two-year delay in getting the rules in place for the law to work meant the PSA fell flat on its face.
Meanwhile, drugs like synthetic cannabis wreaked havoc across the country in vulnerable pockets of society. It proved to be a potent, highly addictive drug that the health system was ill-equipped to deal with. Yet despite the growing crisis, leaders have been reluctant to do anything about it.
Last year when media reported that at least seven people died as a result of synthetic cannabis use, former-Prime Minister Bill English said the issue was about “personal responsibility”. He rejected suggestions that an urgent Government-level response was needed.
The number of deaths from synthetic drug use in 2017 has risen to 25 and still, no decisive action from the former or current Government. However, thanks to Parliament’s lottery last month, an amendment to the PSA was drawn at random and the issue has fallen right into politicians’ laps.
The amendment proposes to increase the maximum penalty people who illegally supply psychoactive substances from two years to eight years. It comes ahead of the PSA’s five-year review later this year when, again, the country’s leaders will be forced to take a hard look at what went wrong.
“THE LAW NEEDS SOME TEETH”
It’s a dream for any backbencher to have a bill considered in Parliament and National Party MP Simeon Brown is confident his will go through.
Brown’s PSA amendment bill was randomly drawn from the ballot last month and is due to be debated in Parliament tomorrow.
“The reason why this amendment is required is because there are people who are being severely hurt - some are dying - from taking these drugs and those who are supplying them are not being sentenced according to the crime they are committing,” he says.
Effectively, his law will mean that those who supply drugs like synthetic cannabis will have the same penalty as if they were supplying a class C drug like marijuana - up to eight years in prison.
“The law needs to have some teeth when it comes to sentencing and judges need to have the ability to hand out sentences that reflect the crime that’s being committed,” he says.
Brown knows his amendment is not going to solve the problem of synthetic drug use in New Zealand but believes it’s part of the solution.
“There are problems around addiction, problems with people who are suffering from these drugs that need to be addressed, too. I’ve launched a petition which will hopefully get a Select Committee inquiry into the addiction services provided to those suffering from synthetic drugs. My petition will also be presented to Parliament,” he says.
Ross Bell, executive director of the Drug Foundation, says the amendment is a bad idea. Every time you lock one drug dealer up six more come along to replace them, he says.
“We only have to look at what New Zealand did with methamphetamine which used to be a Class C drug. We made it a class A drug, New Zealanders became the highest users of meth in the world, we clogged up our court system with meth crimes, and at the same time didn’t provide any help to anyone.”
Brown’s amendment is “based on an assumption - an assumption that’s been proved wrong decade after decade - that if you up the penalties, it deters people from entering the drug market and solves the whole drug problem. Well that’s never worked,” says Bell.
He also the bill is “disingenuous”, making it appear as if politicians are doing something while ignoring effective steps like greater support for prevention and treatment.
“It’s ironic that it’s coming from the National Party because that’s a government that was in place when twenty plus people were suddenly dying from these substances and they did nothing.”
Health Minister David Clarke says Labour won’t be voting in favour of Brown’s bill.
“There is no convincing evidence that increasing sentences will actually result in reducing either use or harm.”
In response to Brown’s petition, Clarke doesn’t believe a separate inquiry into synthetic cannabis is needed but says the Health Select Committee can initiate its own inquiries if it decides to do so.
WHAT WENT WRONG WITH THE PSA?
Peter Dunne championed the PSA. He also watched it fail. Since stepping down from Parliament last year, Dunne can talk candidly about what went wrong.
“It’s devastating because it’s everything we were trying to prevent,” he says about the 25 deaths from synthetic drug use.
While serving as Associate Health Minister, Dunne was facing a tricky predicament; synthetic drug manufacturers were constantly coming up with new products. Each time Dunne banned a substance under the Misuse of Drugs Act, a new product with a slightly altered chemical compound, immediately took its place.
So Dunne proposed an idea that; instead of wasting time reactively banning products, the Government could pass a law that legalised synthetic drugs if they could be proven safe at the cost of the manufacturer.
He argued that regulating the market was more effective than criminalising it. It was a progressive approach backed by international research and politicians seemed to be on board. In 2013, the Psychoactive Substances bill passed 119 votes to one.
About 350 different synthetic drugs on sale in New Zealand were cut that down to just 41. Those 41 were temporarily allowed to stay on shelves as they were deemed safe enough for an interim exemption.
The Ministry of Health’s job was to oversee the regulatory regime which would ultimately determine what could be safely and legally sold - a process that should've taken a few weeks. Synthetic drug manufacturers would then be able to apply to have their drugs approved for sale in the country if pharmaceutical trials showed they were safe.
But before that could happen, the 41 exemptions started to cause problems. They were the impetus for public backlash with some communities unhappy that products with synthetic cannabinoids were suddenly being legally sold in their backyards.
“What this Act said was that these substances could only be sold in R18 stores. In most cases, that’s the local sex shop. In places like Napier and other provincial towns, you suddenly had a whole lot of people turning up to the local sex shop to buy psychoactive substances,” says Dunne. “People didn’t like that”.
Politicians caved to public pressure and pushed through an emergency amendment banning the remaining 41 psychoactive substances in mid-2014.
From Thursday it will be an offence to possess, sell, or supply psychoactive products. pic.twitter.com/LmCUTw09Ba— John Key (@RtHon_JohnKey) May 6, 2014
“In retrospect, I would not have had the 41 exceptions,” says Dunne. He believes the backlash mixed with the general election of 2014 made politicians U-turn on their initial support for the Act.
But the bigger problem was the regulatory regime wasn’t set up for two years despite the Ministry of Health advising Dunne that it would be up-and-running in two weeks. Without the regime in place, no drugs could be deemed “safe” for public use and the Act was basically just a law banning all the substances, pushing them into the black market.
Then Dunne ran into another problem; in order to prove the drugs were safe for human consumption, the synthetic substances needed to be tested on animals, specifically dogs and rabbits. That was, of course, hugely unpopular amongst the public and all political parties so as part of the emergency amendment, animal testing was also banned.
“John Key at that time said I’m not going out at Easter time to tell everyone that the Easter Bunny is going to be used for testing,” says Dunne.
To this day, no alternative to animal testing is available for the purposes of synthetic drug trials. Not a single manufacturing license has been applied for under the PSA so drugs with dangerous, unknown ingredients continue to circulate illegally in vulnerable communities.
TIME TO TAKE BACK POWER
Ross Bell says the PSA was a step in the right direction. When it was first introduced, it was beginning to work.
“There was a study out of Dunedin Mental Health Services that showed there were fewer presentations because of the substances. We were finally able to identify what the products were, we were able to control where they were sold from,” he says.
But he says the Act wasn’t well supported or well resourced. Plus everyone got caught up in community panic.
“By shutting the regulations down, the Government lost all control. They handed the drugs over to the black market,” he says. “Peter [Dunne] was left out to dry because John Key got nervous about bunny rabbits and beagle dogs.”
“The black market got really, really nasty. The chemicals started getting worse.”
He agrees that The Ministry of Health did not get the regulations in place quick enough and says there was a “lack of political bravery” from all political parties.
He’s still shocked at how little was done when reports of people dying of synthetic drugs emerged.
“I went on TV and probably got the angriest I’ve ever gotten in a live interview. I said if this was kids from rich families in Remuera, there would have been action. I do think that the Government didn't respond because of the people who were dying.”
“It really upsets me that because it was homeless people and disenfranchised Māori and Pacific kids from poorer parts of Auckland nothing was done. What does that say about us?”
He says proper implementation of the PSA is needed and more resources must go into communities for treatment services, as well as prevention.
Peter Dunne says the key is to take the control back off the black market.
“The only answer is to go back to what the Act originally said and move to a regulated market where you can control what’s happening.”
“I think we have an opportunity now to get this stuff right but I’m desperately concerned that we’ll end up going backwards,” he says.