The Government's health-based approach to drugs wants users to be given help, not handcuffs. Photo / Getty Images
A health-based approach to the country's illegal-drug problem means users will get assistance rather than possible jail time, writes Derek Cheng.
Hundreds of thousands of New Zealanders use illegal drugs, and thousands are charged with using or having drugs every year.
For decades the response has been a War on Drugs, a criminal justice approach that could see jail time not only for those who supply, manufacture or import drugs, but also those who use them.
But a profound shift in drug laws is happening.
The Government still wants to disrupt the supply chain, but is taking a health-based approach. Instead of criminalising drug users, they would be directed to mental health and addiction services.
In real terms, that would mean that if you're one of thousands of people a year caught with an illegal substance, you won't be prosecuted, but offered help and drug education.
Ideally these services would be available for heavy users in need of residential care, but also for people whose drug use is just becoming problematic, where an early intervention could prevent the need for a more intense response if the problem escalated.
If you're in prison and, like most prisoners, have a substance-abuse problem, these would be addressed as part of a bigger programme to get your life back on track, which would include a former addict to walk alongside you once you're back in the community.
Police testing of wastewater around the country - described as one large urine test - provides the clearest picture of drug use in New Zealand, covering 80 per cent of the population.
The tests are for methamphetamine, MDMA (Ecstasy), cocaine, heroin and fentanyl.
The most heavily used, by far, was methamphetamine - 16kg each week, and it was found on every day of testing.
MDMA, the active ingredient in Ecstasy, was the second most detected drug, with an average of 4kg consumed each week, followed by 700g of weekly cocaine use. But these small amounts only suggested recreational weekend use.
Heroin was hardly detected at all, and tests for fentanyl was also very low, but inconclusive as testing for fentanyl has only just started.
According to surveys, some 300,000 to 400,000 New Zealanders use cannabis every year, with up to 70,000 daily users. Longitudinal studies in Christchurch and Dunedin show that one in 10 users develop a pattern of heavy use.
According to health experts, most drug users do not suffer long-term negative effects, and those who do are heavy users trying to escape trauma or isolation.
The Drug Foundation estimates that about 100,000 people have problems with drug use, though executive director Ross Bell notes that the last Ministry of Health drug use survey was in 2007/08, meaning New Zealand is somewhat "flying blind".
New Zealand has held firm with a War on Drugs stance alongside similar nations for decades, but the previous Government started the first moves towards a health-based approach.
It was under National and Sir John Key that the Te Ara Oranga programme to address methamphetamine use in Northland was piloted, encouraging a collaborative approach where police and health services worked together to help P users turn their lives around.
This programme has been widely lauded and, in Budget 2019, received $4 million to continue its work.
In 2017, the confidence and supply agreement between Labour and the Greens committed to treating drug use as a health issue, as well as addressing the crisis in addiction treatment services and holding a referendum on recreational cannabis.
The health-based approach is multi-faceted, taking aim at drug dealers, offering help not handcuffs to drug users, and making sure there are enough health services for those who need them.
This was reinforced last year at the UN General Assembly, when Prime Minister Jacinda Ardern said that a health approach meant rejecting US President Donald Trump's call to sign up to the Global Call to Action on the World Drug Problem.
At last year's Police Association conference, Police Minister Stuart Nash plugged Johann Hari's book Chasing the Scream, which chronicles the War on Drugs, the link between trauma and drug addiction, and the impacts of legalisation and decriminalisation in different parts of the world.
With one of the people I really admire: Johann Hari, the author of ‘Chasing the Scream’. An extremely readable book...
Posted by Stuart Nash MP on Tuesday, 11 September 2018
Health Minister David Clark also recommended the same book during a speech to the House last October.
Though political parties disagree on the way forward, there is broad agreement that the status quo is broken, particularly in light of how P has crippled communities and the current crisis with synthetic drugs, which have contributed to 80 deaths in the last two years.
The latter in particular has led to a proposal described as the biggest change in drug laws in 40 years.
In July last year, then-Acting Prime Minister Winston Peters announced that a cross-agency approach would be taken to tackle the issue of synthetic drugs.
The crisis stems from the low-harm legal highs that started surfacing in the early 2000s and led to the Psychoactive Substances Act in 2013.
The Act was hailed as groundbreaking at the time, as it put the onus on legal high manufacturers to prove that their products were safe before they could be sold, while granting interim licences to operators in the meantime.
But an amendment in 2014 axed the interim licences and banned animal testing from being used to prove the products were low-risk, leading to a black market that moved to cheaper, more dangerous synthetic drugs.
Two common compounds - AMB-Fubinaca and 5F-ADB - have been found in increasing concentrations.
"AMB-Fubinaca has been reported as having an effect 75 times stronger than tetrahydrocannabinol (THC), the major psychoactive component of cannabis, and 5F-ADB has been shown to be almost 290 times stronger than THC," said a Cabinet committee paper from last December, released to the Herald under the Official Information Act.
The Government's response is a $2 million-per-year discretionary fund to offer community-based, wraparound services and establish a early drug detection system.
The legislative response is the Misuse of Drugs Amendment Bill, which is expected to have its second reading in the House on Tuesday.
The bill would make those two compounds Class A drugs, which can be punished by lifetime imprisonment for supplying, importing or manufacturing them, or up to six months' jail for use/possession.
More controversially, the bill would codify police discretion for prosecuting drug use/possession into law in a manner that is likely to make such prosecutions rare.
The bill says a prosecution should not proceed if a therapeutic approach would be more beneficial.
When the bill was at select committee, Drug Foundation executive director Ross Bell said he could not think of any circumstance where a prosecution would be more appropriate than a therapeutic approach.
If a case ever came to court, Law Society spokesman Chris Macklin said it would be easy for a lawyer to argue that the prosecution should never have been brought.
Police already use a number of non-prosecution options for low-level offending, and Solicitor-General's guidelines say that prosecutions need to pass the "public interest" test.
But Police Association president Chris Cahill said the bill would see police move from a default presumption to prosecute to one of non-prosecution for all drug users, which would lead to a "dramatic" decline in police charges.
These observations prompted the National Party to call the bill de facto decriminalisation for drug use, but the Government has rejected this claim repeatedly.
And, technically, it is not decriminalisation, as criminal penalties still exist.
The word "decriminalisation" is absent from hundreds of pages of official advice on the bill, but there are constant and repeated references to the Government's intention not to criminalise drug users.
David Clark said that the status quo had failed to keep Kiwis safe, and a fear of prosecution can deter people from seeking help.
"We don't want to ruin lives by putting people in jail at a cost to taxpayers of $110,000 a year when we can help them to get the treatment they need."
But he stressed that misusing drugs remained illegal.
Ardern said that the bill would simply codify current police practice.
A request for this advice has been refused under the Official Information Act on the grounds of free and frank advice and confidentiality of advice to Ministers.
Police have been softening its stance on drug users in the last decade, with the exception of P.
But if they no longer charged people for using or having drugs, it would still affect thousands of people.
Ministry of Justice statistics show that 4114 people were charged for drug use or possession in 2018, and 3188 were convicted. Those numbers have remained relatively static since 2013.
Numbers for the year 2017/18, revealed in Cabinet papers released under the Official Information Act, show breakdowns for possession or use of different drugs (where that offence was the most serious charge):
• For methamphetamine, 666 people were charged, 525 convicted and 41 imprisoned
• For other Class A drugs (including as LSD, magic mushrooms, cocaine, heroin), 14 people were charged, nine convicted, and no one imprisoned
• For cannabis, 567 people were charged, 372 convicted, and seven imprisoned
• For other Class B/C (including morphine, opium, ecstasy and many amphetamine-type substances), 104 people were charged, 62 convicted, and four imprisoned
Providing health services to those who need them will be a particularly important aspect of the Government's approach, and Budget 2019 included a $1.9 billion commitment to mental health and addiction treatment services.
Police are currently drawing up guidelines for how to apply discretion, and are expected to publish those records in an effort to mitigate the risk of unconscious bias, which could disproportionately harm Maori.
What impact encoding police discretion into the law will have on the synthetic drugs crisis, and drug-taking in general, is expected to be monitored closely.
But the bill is only an imperfect, interim step in the right direction, according to the Ministry of Health.
The Government has made a long-term commitment to drug law reform, but is keeping it close to its chest.
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