This Is De-facto Decriminalisation.

Everyone except the PM and David Clark agrees. This is de-facto decriminalisation. Laura Walters from Newsroom explains.

A war of words is raging over the war on drugs, as the Health Select Committee reports back on the most significant piece of drug reform legislation in 40 years.

Just to put things in perspective. The reform, if made, will make the cannabis referendum a mere rubber stamp.

The parties are divided over a single, but significant, clause in the Misuse of Drugs Amendment Bill, which enshrines police discretion over prosecution, and prioritises therapeutic options when dealing with possession and personal use of controlled drugs.

It is the same approach Portugal took when changing its drug laws in 2001. […] Labour, including the Prime Minister and the Health Minister, have pushed back on National’s categorisation that this bill creates “de facto decriminalisation by stealth”, saying it doesn’t take away the power to prosecute, and police would do so when needed.

The bill definitely creates de facto decriminalisation. The NZ Drug Foundation says it does, the police say it does, Chloe Swarbrick says it does. The only people who disagree are the PM and David Clark.

Instead, Labour and New Zealand First have been trying to draw attention to the tougher measures against suppliers of synthetics that the bill contains. When Health Minister David Clark and Police Minister Stuart Nash announced the draft legislation in December, the press release boasted the headline: “Crackdown on synthetic drug dealers”.

Basically, the media got played. The thing to understand is that there has always been a symbiotic relationship between the media and drug prohibition. Prohibitionists supply sensationalist horror stories, often with important facts missing or entirely made up (eg hippies on acid going blind after staring into the sun). The media then dutifully publishes these stories without question as these kinds of stories sell papers. Given this, and given the bill was sold to the media as a crackdown on synthetics, it’s easy to see how the most important bit of the proposed amendment easily slipped through the media’s fingers.

There is a disconnect between the Government’s messaging around the bill, the actual effects of the legislation, and what the Government signed up to in both its confidence and supply agreement with the Green Party, and its commitments following the national Mental Health and Addiction Inquiry.

The National members of the health committee have produced a minority report on the bill, opposing what the party refers to as the de facto decriminalisation. National said it supported the intent of the majority of the bill, including the ability to temporarily classify substances as controlled drugs and classify the two most prevalent chemicals used in synthetics as Class A drugs. However, the party’s opposition to de facto decriminalisation, through the discretion clause, means National refused to support the bill overall.

I get National’s refusal to support it. I don’t agree with it, but I get it. National have placed themselves in opposition to drug law reform so it is consistent that they are opposed to the bill.

The Labour and New Zealand First members recommended one minor and technical change to the discretion clause, leaving the majority of the bill, and its intent, intact. The significant clause stated police officers have a discretion to prosecute, and a prosecution should not be brought unless it was required in the public interest.

Which in practice means no prosecutions for the personal use and distribution of cannabis and personal use of other drugs.

”When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial,” it says.

[…] National Party health spokesperson Michael Woodhouse sits on the health committee and was there when the NZ Drug Foundation, Police Association, psychiatrists and lawyers agreed the bill would essentially decriminalise personal possession and use – regardless of what the Prime Minister says.

In his submission to the committee, Police Association head Chris Cahill referred to it as “compulsory discretion”. Meanwhile, Rotorua lawyer Chris Macklin, representing the Law Society, said he could not think of a single case where police could argue they should prosecute someone for possession of a drug for personal use, under proposed legislation. No-one who came before the select committee said there could be a case made for a criminal prosecution over a therapeutic approach – regardless of what services were available, Woodhouse said.

Yep. Everyone except the PM and Health Minister agree. It is decriminalisation.

If the Government was decriminalising the use of controlled substances, which included meth, synthetics and heroin, there needed to be a wider public debate, rather than slipping it through in this piece of legislation, he said. Living up to the rhetoric But the person behind the discretion clause – Green drug reform spokesperson Chlöe Swarbrick – said the Government wasn’t being secretive about its commitment to effectively decriminalise personal use and possession. “I don’t think there’s anything stealthy about a bill going through the entire select committee process and having submitters on it who are saying, quite explicitly, what the effect of it will be.”

Which is all fair enough but the bill was sold to the media and then through the media to the public as a get tough bill on synthetics.

More than that, the Government has made numerous, high-level public commitments to stop criminalising drug users and drug addicts. […] The Prime Minister said New Zealand would take a health-based approach to drugs, rooted in evidence. This is a key Government commitment under the Labour-Green Party confidence and supply agreement, where the parties vow to “increase funding for alcohol and drug addiction services and ensure drug use is treated as a health issue”. […]

The Government also accepted 38 out of 40 recommendations of the Mental Health and Addiction Inquiry, including: replacing criminal sanctions for the possession for personal use of controlled drugs with civil responses, such as a referral to a drug awareness or treatment programme, or a fine; and committing to support the replacement of criminal sanctions with a full range of treatment and detox services. […]

A full reform of New Zealand drug law, including repealing and replacing the act with a law administered by the Ministry of Health, was also recommended by the Law Commission in 2011 – a position the Green Party also holds. While there was yet no official commitment to repeal and replace the Misuse of Drugs Act, there had been substantive discussions between Government parties.

In the meantime, the Misuse of Drugs Amendment Bill was a significant step towards that health-centred approach. The change would put New Zealand in line with Portugal’s decriminalisation approach, introduced in 2001. The only difference is New Zealand did not have Portugal’s Dissuasion Commission. “This is huge. This is the largest change we’ve seen to drug law in this country, actually in Australasia, in over 40 years,” Swarbrick said.


It is huge. It’s looking likely that if the cannabis referendum passes, it will only pass if it allows just personal distribution and use of cannabis, ie no dispensaries except possibly medicinal. This means that if this amendment passes, the cannabis referendum is not likely to change anything except rubber stamp what would be already in place. Further, the bill will effectively “legalise” the possession of all drugs including Class A drugs such as heroin.
I’m all for decriminalisation. But if the government wants to win over voters as a whole it needs to start being honest and stop treating decriminalisation as if it’s a dirty word.