There should not really have been such surprise at news reports about associate Health minister Peter Dunne last week proposing the legal, regulated sale of cannabis and the Portugal-style decriminalisation of other drugs. He has been advancing essentially the same ideas for a couple of years. He announced those ideas as United Future policy the week before and at the beginning of this month he expanded on them in a speech to a police strategy conference.
But his timing in making these relatively explicit proposals is notable. Dunne knows better than anyone that it is likely that the Misuse of Drugs Act 1975 will get a comprehensive rewrite in the next Parliamentary term. He's putting a stake in the ground.
His proposals warrant some debate. His policy when the Misuse of Drugs Act is rewritten, would be to "transfer the current Schedule of Class C Drugs from that Act to the Psychoactive Substances Act." This doesn't quite work, as phrased. Raw cannabis is a Class C drug in the MoDA schedules – but any cannabis preparation is scheduled in Class B, alongside amphetamine and morphine. And yet cannabis preparations are more likely to be approved as medicines and even to meet the "low risk of harm" standard in the Psychoactive Substances.
It may be safe to assume that the minister knows this and is simply choosing to say "Class C" because it's a clearer proposition for a press release. But it does shed useful light on the unholy mess that is the MoDA schedules. Because you might be surprised to know what is actually in Class C. You'll find codeine in its various forms, barbiturates – and also oxycodone (aka "hillybilly heroin") and fentanyl, which has been associated with a wave of overdose deaths in the US. Clearly, we're not going to be seeing those for sale in corner shops.
There is strangeness further up the schedules too. Relatively less harmful drugs such as LSD and magic mushrooms are Class A drugs alongside heroin. It's reasonable to wonder what the schedules actually signify, if not potential for harm. The answer, to some extent, is that they signify whatever panic was abroad at the time.
For Dunne, the regulated supply of cannabis should follow an overall shift to Portugal-style decriminalisation of all drug use and possession:
First, we should move to an overall approach similar to the full Portuguese model, where the cultivation and possession of all drugs remains illegal, and all drug users are referred for assessment and treatment, but where there is a tolerance exercised for the possession of what are essentially Class C drugs under the current Misuse of Drugs Act. In that event, persons caught with – say – no more than the equivalent of one week’s personal supply would be referred directly to treatment rather the Courts, in an extension of our current diversion scheme. This would require significant additional investment in the provision of assessment and treatment services, but that makes far more sense than investing similar amounts more in the Courts and prison services for the same purpose. At the same time, it would free up more Police resources to concentrate on catching the criminals behind the New Zealand drugs scene.
Let's be quite clear here. Portugal's reforms were an attempt to curb alarming rates of harm from IV drug use in particular. They have been an unqualified success by that measure. Between 2001, when the reforms took effect, and 2012, annual new HIV infections plummeted from 1,016 to only 56. Overdose deaths fell from 80 to 16. The number of heroin users has halved. Lifetime prevalance rates suggest that drug use overall is on a long-term decline.
Portugal's system is not the libertarian paradise it's sometimes characterised as. In fact, it's quite nanny-state: the system can, and does, limit the freedom of people it decides are a danger to themselves.
But people picked up with personal quantities of drugs are not all "referred directly to treatment" as the minister suggests. They must appear before a panel ordained as part of the Commissions for the Dissuasion of Drug Addiction, which typically includes a psychologist, a social worker and a legal advisor. The panel may direct a user to treatment: but in as many as 85% of cases, it doesn't. The user's name is simply kept on file and action is suspended for six months. Coming before the panel again within that six months may be seen as evidence of a more serious problem.
This is actually a good thing. Forcing treatment on people who don't need treatment isn't a good use of resources.
New Zealand's most significant source of illicit drug harm is not opioids, but methamphetamine. The harms are different: less likely to involve blood-borne disease and fatal overdose, more likely to encompass mental illness, socal dysfunction and violence. A New Zealand solution thus may not look exactly like a Portugal solution. But Dunne is absolutely right to believe that directing resources from policing and prosecution of individual users to treatment and assessment is the right thing to do.
Portugal's system, however, entrenches another set of problems: those entailed by illicit drug production and supply. It still offers organised crime a monopoly in those areas. More radical solutions would extend regulated supply beyond just the cannabis market. But those solutions can't presently be observed in action anywhere and perhaps it's unrealistic to expect a Parliament to embark on that adventure just now.
What this all adds up to, however, is that drug law reform is absolutely an issue in this election year. The next Parliamentary term represents a once-in-a-generation chance to rewrite a 42 year-old law groaning with anomalies and contradictions – and to bring that law into line with our quite enightened National Drug Policy. We haven't done that well at all so far: the government's dismissal of the Law Commission's thoughtful, cautious review of the Act in 2010 was a disgrace.
It's also perhaps a more fruitful question to ask of those seeking election for the next term. Even the Greens have had qualms about going into an election with a law reform policy and Labour continues to bleat about it "not being a priority". It's not going to be in most manifestos. But asking for a commitment of good faith for when the law must be overhauled seems entirely reasonable.