Jacoby Poulain: Hazy law hampers legal-high fight

Jacoby Poulain is a Hastings District Council Flaxmere Ward councillor and a Hawke's Bay District Health Board member.

New Zealand can stand up and take a bow and so too can much of Hawke's Bay and our mayors for the leadership they've shown in regards to the legal high issue.

As many will be aware, the government has recently announced that it will introduce and pass, under urgency, legislation removing all remaining psychoactive substances from sale until they have been subject to a new testing regime. Public pressure has won this round, but I wonder for how long.

The landscape of this issue and legislation is still very unclear and arguably unworkable. While this latest move will see that all products are removed from shelves, this is only until they are proven safe. Some will likely make it back. The question then becomes what powers do councils and communities have to deal with the remaining legal highs in our communities?

The Psychoactive Substances Act is still in place and remains the governing legislation. Hastings Mayor and President of Local Government New Zealand, Lawrence Yule, appeared on TV3's show The Nation on Saturday morning with Associate Health Minister Peter Dunne. The pair debated the effectiveness of the legislation with Mr Yule reiterating, in essence, that many councils are frustrated with having the issue forced upon them to deal with, without having sufficient powers to do so. In defence, Mr Dunne criticised councils for not taking up and establishing local policies, which the legislation gives them power to do, and which he suggests would solve the problem. He seemingly implied that the purpose of the legislation was to give councils powers so that they can, in effect, ban these substances.

Yule hit back, and rightly so, informing Mr Dunne that his view was too simplistic. Hamilton Council is being legally challenged for the creation and implementation of their local policy that has closed stores, as is Hastings District Council. Should these test cases fail in the courts then councils are back to square one with little or no powers, as the powers they have tried to execute have been deemed by our courts as invalid. This leaves us with an unworkable piece of legislation, and ratepayers across the country with hefty legal bills attempting to enforce something that is unenforceable.

Much of this will come down to what the court decides. In determining the success or failure of these appeals the court will look at a number of factors such as what parliament's intent was in creating the law. It seems here that Mr Dunne is saying that it was one of parliament's intentions to allow councils to create policies that in effect ban the sale of psychoactive substances. Councils, however, have been subject to legal advice and interpretation that says that they have powers to create rules to control the location of the sale of psychoactive substances to a certain extent, but that policies cannot be so restrictive as to in effect ban the sale of approved products.

So which one is it and what powers do councils and communities really have over this issue? Time will tell when these cases and potentially others are tested through our legal system.

I contend though that this should not mean that the Minister can throw his hands up and say it's out of his hands and relegate it to councils and courts on these matters. These cases are going to court, I believe, to a significant degree as a result of unclear and ambiguous legislation, or at least explanation of - even I had my head cocked sideways looking at the TV through squinted eyes on Saturday trying to decipher what Mr Dunne was really saying. I have a feeling his opinion will be sought and his answers scrutinised a lot more for the real meaning and clarification on this in the near future.