New Zealand Drug Policy: How did a country poised for world leading reform deliver a raft of prohibitionist drug policies?

The TSS Earnslaw Steamship on Lake Wakatipu, Queenstown (Photo by Julian Buchanan)

At the beginning of the decade the New Zealand Law Commission delivered a comprehensive and authoritative 350 page report reviewing New Zealand drug policy. Most significantly the Law Commission recommended that the Misuse of Drug Act be rescinded and replaced with a new law that would be managed by Health not the Criminal Justice System. The report recommended that all personal drug possession be dealt with by way of a caution and social dealing should not result in imprisonment. How has so much ground has been lost over the past decade.

2011: A Mandate for World Leading Drug Reform

In January 2011 New Zealand was on the cusp of transformational drug reform. Coinciding with my arrival to the country, the comprehensive and bold reform recommendations by the 2011 Law Commission Review of the Misuse of Drugs Act (MDA) had just been published. It was a major and carefully considered study carried out by a well respected team. The three year independent inquiry carried gravitas and authority.

The document set the scene for re-imagining and refocusing New Zealand drug policy away from abstinence; away from a brain disease model of addiction; and away from ‘drug free’ propaganda, towards an evidence based approach of living with drugs through legal regulation, harm reduction and human rights.

The Law Commission recommended a mandatory cautioning scheme for all personal drug possession, legalisation of all drug related utensils, greater leniency for social dealing, avoiding the use of prison, and rescinding the Misuse of Drugs Act and replacing it with a new Act administered by Health Department not the Justice Department.

The comprehensive Law Commission Report published in 2011, should have kick started a sweeping movement of public debate and education leading to a decade of drug policy reform informed by a mature drug policy debate and ever evolving evidence base.

A key player in shaping and coordinating drug policy is the New Zealand Drug Foundation, the lead drug policy NGO, heavily funded by the government. But during this period the Drug Foundation led by the high profile Executive Director Ross Bell, worked closely with the Associate Minister for Health Peter Dunne and steered drug agencies (some might say manipulated) thinking around drug policy on behalf of the then, National government. The National Party have remained firmly prohibitionist and anti ‘drugs’. National MPs were mandated to vote ‘No’ in the failed Cannabis Legalisation Referendum.

Arguably, despite their heavy dependence on government funding, as the lead NGO, the New Zealand Drug Foundation (NZDF) should have seized the opportunities to rally support for the authoritative Law Commission Review to push, advocate and seek to implement key reform recommendations, to raise public consciousness and awareness about the hypocrisy surrounding drugs, and expose the propaganda, futility and harm from prohibitionist drug policies. The scene had been set for a evidence based, mature and adult conversation about ‘drugs’.

However, a combination of fear, ignorance, ambivalence and vested interest appears to have deterred many key individuals and drug agencies from engaging in an open and honest evidence based discussion around New Zealand drug laws and policies. Maybe this was no surprise given a pervasive culture of dirty politics operating in New Zealand politics at the time. As a result of my commitment to harm reduction and human rights I had the debilitating experience of discovering I had been systematically slandered and excluded from drug policy events and forums.

The Unspoken U Turn

Instead of evidence based harm reduction policies, by 2012 the Drug Foundation were heralding the roll out in New Zealand of the USA styled Drug Abstinence Courts that involved coercive measures including; frequent random drug testing, alcohol ankle tags and punishments to ‘help’ people they called ‘addicts’ to fight the ‘disease’ and become ‘drug’ free. Following the initial pilot, Drug Abstinence Courts have been extended and expanded to other areas of New Zealand.

By August 2013 the NZDF set up a carefully selected, invite only, multi agency gathering in Wellington to consider and formulate new directions in NZ drug policy. This two day gathering produced a document that seemed to have given up hope or interest in the carefully considered recommendations set out in the Law Commission Report. Instead, the NZDF delivered a forty page consensus dossier entitled The Wellington Declaration. A document that sought the compromise of ‘a broad church’ while side stepping: the key reform recommendation and work of the Law Commission; overlooking much needed harm reduction measures such as naloxone take home and drug checking; and ignoring the very dubious policies of meth-house testing, drug testing beneficiaries and drug presence testing of drivers.

In November that year the Drug Foundation hosted their 2nd Cannabis Conference on Health Risks in which they invited anti-drug propagandist Kevin Sabet from SAM USA a second time, this time to speak about preventing and treating cannabis use. This was a wasted opportunity at best. It should have been a conference to enlighten agencies, the media and the public on alternatives to cannabis prohibition, and start the much needed public debate and review of cannabis laws.

In 2013 we also saw the introduction of the Psychoactive Substances Act 2013 (PSA2013) that the Associate Health Minister Peter Dunne claimed would be the ‘knock out blow to drugs— by ending the cat and mouse game of having to outlaw each drug separately under the MDA1975, this new Act banned EVERY new psychoactive substance (NPS) before they are even created. The PSA2013 introduced new possession and supply offences including warrantless entry, and instead of having to prove a substance was dangerous in order to ban it, the new Act automatically banned every future psychoactive substance reversing the onus of proof. However, the PSA2013 was sold to reformers as as world leading reform, because theoretically, if a psychoactive substance could be proved safe, it could in theory, be legally regulated. The legislation was unanimously backed by the National Party because it widened the net and the powers of prohibition — and not surprisingly since the inception of the PSA2013 not a single NPS has ever deemed safe enough to be regulated due to the impossible hoops and hurdles demanded. After the loosely managed legal high industry was prohibited and legal highs removed from sale by the PSA, their was a dramatic increases in synthetic drug fatalities, around 70 deaths over a two year period.

During this period drug testing beneficiaries, drug testing employees and drug testing houses (primarily for traces of methamphetamine) became rampant, resulting in redundancies, suspension of benefits and evictions. It spawned intolerance, hostility and many new drug testing businesses. There was little protest, virtually no user voice and little or no significant outcry against these injustices from key stakeholders.

In 2017 the tough abstinence and intolerance approach, at the heart of New Zealand prohibition, was bolstered further by a new law Substance Addiction (Compulsory Assessment and Treatment) Act 2017 to force people to get assessment and treatment for addiction, despite the lack of evidence based to support compulsory treatment, and despite the human rights concerns. The Act crept in quietly and little was said.

Green Party Referendum to Legalise Cannabis

So this was the context within which in 2018 the Labour/Green/NZFirst Coalition announced New Zealand would consider legalising recreational cannabis via a Referendum. A move instigated not by key stakeholders, but by a pledge in the Green Party manifesto. The public was hardly best prepared. They had been spoon fed prohibitionist propaganda for most of the past of a decade — with none of the main agencies or NGOs seriously advocating or arguing for the robust alternatives sown in the 2011 Law Commission Review or indeed for cannabis legalisation.

It is interesting that the campaign to legally regulate cannabis failed to expose and address the real issue at stake — prohibition. Instead, prohibitionist discourse was accepted and adopted, with slogans such as “Regulate cannabis to reduce the harms it can cause“, Let’s get cannabis under control by regulating it, and protect our young people.

These soundbites from the YES campaign misleadingly implied cannabis was out of control and dangerous, when the real problem was that prohibition is out of control. It is prohibition that is dangerous not cannabis. It is prohibition that is ruining lives not cannabis.

Hardly surprising then, so many public and media discussions centred on the risks, effects and harms of ‘introducing’ cannabis rather than the risks, effects and harms of prohibition. The referendum was never going to introduce cannabis — cannabis is already here in New Zealand and widely used. However, the focus upon the risks of cannabis rather than the harms and futility of prohibition, perpetuated the myth that prohibition is successfully controls cannabis supply and demand. It does nothing of the sort.

The Damage Caused by Prohibition

Cannabis like all drugs, including alcohol and caffeine, carries risks, but let us be clear about the significant additional harms created by prohibition.

It means the person has:

1. No idea of the strength of the drug.

2. No guarantee about the purity or indeed content of the drug purchased — it could be contaminated or even mixed with toxic ingredients that could cause serious harm, even death.

3. Has to buy the drug ‘underground’ — exposing the person to the vagaries of a potentially dangerous criminal underworld with no legal recourse for consumer protection.

4. Is placed at risk of acquiring a criminal record for drug possession — which would have lifelong damaging consequences upon employment prospects, education, insurance, travel and housing.

5. Buying, using and/or sharing drugs puts the person at risk of serious criminal sentences such as a Drug Court order with a residential rehabilitation requirement, random drug testing — even imprisonment.

6. The drug has to be used in secret. For some people this may mean using in an isolated location which could be potentially dangerous — such as a condemned building, under a railway bridge, by a river etc.

7. Has to hide their use of the drug making it more difficult to manage and harder to seek help, support or advice if problems arise.

8. If the person has a life-limiting medical condition that’s untreatable and can’t afford and/or can’t access expensive legal medical cannabis — trying to acquire a regular reliable supply underground places further strain and pressure upon the sick person.

9. Enforcement drug laws unfairly target poor people, young people and indigenous people — and once a young person who is already disadvantaged gets a criminal record for drugs — opportunities become severely limited.

10. Using valuable police time to scour the countryside to dig up plants, stop and search people, carry out dawn raids, — time that could be better spent catching criminals and protecting victims from physical/sexual violence, trespass, theft and burglary.

11. Prohibition enforcement fuels an extremely lucrative underground illegal market where disputes and turf wars can’t get resolved by arbitration, consumer rights or the courts — disputes get resolved by violence, knives, baseball bats and guns.

12. Drugs such as cannabis are used widely, but the entire market from seeds, growing, the equipment, the preparation, marketing, packaging and profit is entirely unregulated, unaccountable, underground and undeclared — this existing lucrative underground business is losing the country millions of dollars in tax revenue and employment opportunities.

Courting the USA drug policy ‘experts’

Asking an ill informed public who have over the past decade been drip fed a raft of prohibitionist anti ‘drug’ policies to vote on Cannabis legalisation was always going to be risky. The NZ public have been duped by relentless prohibitionist propaganda for decades, and it has gone largely unchallenged. Since the Misuse of Drugs Act in 1975 — and apart from some knee jerk reactions to the HIV/AIDS threat in the 1980s that resulted in accommodating needle exchanges and substitute prescribing, US styled anti-drugs propaganda has dominated NZ drug policies, leaving the public ill-prepared and ill-informed to understand the cannabis referendum issues.

Since 2011 numerous influential speakers have been invited over from the USA to reinforce abstinence and prohibitionist approaches, including Dr Kevin Sabet President of SAM USA (Smart Approaches to Marijuana), Dr Tom McLellan ex USA Deputy Drug Tsar, the late Christopher Kennedy Lawford the USA in-recovery champion and the USA Superior Judge Peggy Hora and her team who run drug abstinence courts based on the brain disease model of addiction. The strong connections and support from the USA prohibitionists are firmly established here in New Zealand and continue to shape our drug policies. USA propaganda was fundamental to supporting the cannabis ‘No’ vote.

On the back of a major Law Commission review that recommended in 2011 rescinding the existing drug law, the past decade in New Zealand should have been so different. The groundwork for major reform should have been done but it wasn’t. The Cannabis Referendum should have been a done deal. Instead, in the 2010s we witnessed a tidal wave of unchallenged prohibitionist policies that made mature and informed rational discussion on legal regulation of cannabis, let alone all drugs, extremely difficult. Thanks to the Green Party New Zealand became the first country in the world to ask voters to legalise cannabis, unfortunately however, we were ill prepared. New Zealand became the first country in the world to reject cannabis legalisation.

On the Wrong Side of History

Prohibition is such a unpleasant devious beast. We had an opportunity here in New Zealand a decade ago with the Law Commission Review, to begin to end the tyranny of prohibition. We failed abysmally to take it, largely because the National government in power at the time, refused to consider an evidence based approach to drug policy, but also because the NGO’s and agencies in the health and drugs field so quickly dropped the ‘reform ball’, preferring instead to play safe and sit on the fence, to accommodate the prohibitionist agendas, energy was diverted into developing international links with USA drug policy advisors, and into securing funding to attend international drug policy agendas via the UNODC (CND), which enabled a delegation from New Zealand to take a trip to Vienna.

A decade later we had another opportunity to be on the right side of history (as New Zealand so often has been in the past on important issues), but this opportunity was squandered; partly by a YES campaign that adopted a prohibitionist discourse and placed cannabis in the dock - when prohibition should have been in the dock. However, in the main, the Referendum was lost because of the lack of commitment, education and dialogue about drug reform in the preceding decade.

Instead, ministers, NGO’s and key stakeholder courted prohibitionists, abstentionists and recovery gurus, and rolled out a raft of prohibitionist drug policies. We have lost ground internationally on drug policy when so much more could and should, have been achieved.

Retired Professor, international expert in drug policy, researcher, public speaker, writer and ex UN advisor.

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