Australia has just passed the laws needed to allow medical marijuana to be grown and distributed. Once that starts happening, New Zealanders will be able to go across the ditch to get it - and then legally bring it back here.

The whole issue of medical marijuana's (non)-availability in New Zealand has been highlighted by the case of first Helen Kelly and now claims in The Guardian that towards the end of his illness Martin Crowe was "self-medicating with liquid marijuana and sleeping 15 hours a day". It's a topic that Russell Brown has covered far better than I could in a Vice article, so go read that as background and then come back here.

Because a recent court decision has thrown light on a small subsection of the Misuse of Drugs Act 1975 that could well blow a quite substantial hole in New Zealand's current virtually prohibitionist policy. As reported on RNZ's Nine-to-Noon the case involved an American woman residing in NZ who while back in California was prescribed medical marijuana (which is a legal treatment in that jurisdiction) to treat the symptoms of her chronic pain syndrome. She then purchased medical marijuana products (using the prescription she had been given) and posted them to herself back in NZ before traveling home to Golden Bay. However, Customs detected the products in the mail and she was arrested and charged with possessing marijuana and (much more seriously) importing it.

Well, it was fairly cut-and-dried that these offences had been committed. Marijuana is a Class C "controlled drug" under the Misuse of Drugs Act 1975. She didn't have a New Zealand prescription/permission to use medical marijuana products (such as Helen Kelly had been seeking). And nothing in NZ law allows you to mail yourself controlled drugs here in NZ, even if purchased legally overseas. So - conviction entered and sentence imposed, right?

Not so. Instead, the Judge in her case discharged the accused without conviction - the legal equivalent of granting a free pass. Having not seen the full reasons for that decision (they haven't been issued yet) I can only go on what the accused woman's lawyer (Sue Grey) has told RNZ in her interview, but it seems a major factor in the discharge was the existence of s.8(2)(l) the Misuse of Drugs Act 1975. That provision says that the offences of possessing/importing a controlled drug do not apply in the following situation:

a person may, while entering or leaving New Zealand, possess a controlled drug required for treating the medical condition of the person or any other person in his or her care or control, if the quantity of drug is no greater than that required for treating the medical condition for 1 month, and the drug was—

...

(iii) lawfully supplied to the person overseas and supplied for the purpose of treating a medical condition.

And, of course, the woman in question had got the marijuana laced products perfectly lawfully in California based on a doctor's assessment that they would treat her pain. So if she had physically carried them into NZ in her luggage, she would not have broken the law. But as she mailed them to herself (perhaps thinking about the likely attitude of NZ's border protection officials and wanting to avoid a lengthy delay at the airport), she did. Which the Judge obviously thought was a bit silly (or, at least, a distinction not warranting the harshness of a drugs conviction, with all the stigma that attaches to that) and so (effectively) let her off the charge.

It's pretty obvious why s.8(2)(l) is in our Misuse of Drugs Act. The legislation covers a lot of substances, many of which have therapeutic uses as well as more recreational purposes. Take one example - Diazepam, or "Valium" as anyone who has ever struggled with depression or anxiety issues probably knows it by. It's a class C controlled drug, just as is marijuana (or, cannabis) leaf. Cannabis oil, of course, is a class B controlled drug ... just as is pseudoephedrine, which is a decongestant used to treat stuffy noses.

So what happens when some tourist shows up at Auckland International Airport for her or his three week holiday with a prescribed packet of Valium to help them with the anxiety issues they experience when flying? That's a class C controlled drug. Or a packet of over-the-counter tablets bought in Mexico to deal with the nasty effects of a head cold? If there's psuedoephedrine in them, they are a class B controlled drug. Are we really going to arrest these tourists and charge them with possessing and/or importing controlled drugs? Of course not - we instead say that they can bring in with them a reasonable amount (1 months worth) of the substance to treat their medical condition without breaching our laws. Eminently reasonable.

However, the issue is then twofold. First of all, New Zealand citizens get the same benefit of the legislative exemption - so that if you went to Mexico for a holiday and bought pseudoephedrine containing cold pills while over there, you get to keep them on your return (even though trying to buy them in NZ would be a quite serious criminal offence). And second, as more and more places start recognising marijuana as a therapeutic substance as well as a recreational drug, the number of places that this substance can be "lawfully supplied ... for the purpose of treating a medical condition" will rapidly escalate.

Including our closest neighbour, Australia. Because it has within the last few days, under a Liberal-National conservative government, enacted legislation that permits the growing and distribution of medical marijuana products. As this article sets out, it will be a few months (maybe a year) before products actually become available, and exactly what they will be and how you can get them is still unclear. But nevertheless, by this time next year it may well be feasible for a Kiwi to get on a plane to Sydney or Melbourne, see a doctor about treating the symptoms of her or his cancer/chronic pain/other condition, get a prescription for medical marijuana, fill it and bring back a months worth of the product to New Zealand. Then the next month, she or he can do the same thing again. And again. And again.

Of course, that's hardly the same as getting easy prescription access here in New Zealand. You have to be able to afford to fly and pay to see Australian doctors, to begin with. Also, it is highly questionable whether the Misuse of Drugs Act exemption allows someone to bring in controlled drugs for another person not in his or her presence (even if that person is in "his or her care or control" generally), so you probably have to be well enough to travel yourself to take advantage of the loophole.

Nevertheless, the combination of medical marijuana being available just a three hour flight away plus being able to then legally bring it back to New Zealand is yet another reason why medical marijuana inevitably will become available here New Zealand. A reason that is comes with a delicious, delicious cherry of irony set atop it. Because it is birthed of the same forces that the current prohibitionist minded government says require the adoption of the TPPA - globalisation, common markets, free movement of goods across borders. It's just in this case the thing that wants to move freely - medical marijuana - is something the National Government seems hell-bent on keeping out for purely ideological reasons.

Karma really is a bitch goddess sometimes, isn't she?

Update: Apparently Associate Health Minister Peter Dunne thinks I'm wrong about this - so here's my more detailed discussion of how I think s.8(2)(l) applies.

Comments (3)

by Andre Terzaghi on March 05, 2016
Andre Terzaghi

How long are we going to continue this dance of bizarre unworkable positions before just doing the simple evidence-based rational thing: legalising, regulating, and taxing marijuana?

by Colin Hunter on March 06, 2016
Colin Hunter

I really don't understand Andrew's reasoning here. Marijuana cannot be lawfully supplied under our law. Other controlled substances can be. Andrew is suggesting that the foreign lex causae applies in deteriming what "lawfully supplied" means. I can't see why this would be. Surely New Zealand law is the lex causae, because otherwise the statute would not apply. If the statute applies, then domestic New Zealand law applies to the construction of the terms of the statute. Hence "lawfully supplied" means supplied in a way that would be legal in New Zealand. Isn't this just conflicts 101? It seems to me that Dunne is right.

I doubt very much that the issue of lawful supply is an incidental issue to be determined by foreign law. Even if that were true, what is the conflicts rule that points to foreign law in this case?

 

 

by Andrew Geddis on March 06, 2016
Andrew Geddis

@ Colin,

I have tried to answer this at more length in my later, updated post, but I'll simply note that your understanding does not seem to be the same as Customs. It states that a person entering NZ with a controlled drug only must show that it:

has been lawfully supplied to you in the country of origin – a letter from your doctor or a valid label on the container with your name and the quantity and strength of the drugs would be sufficient.

Note the practical problem with your reading - that the "lawful supply" overseas means "as permitted under NZ law". How is a Customs agent meeting a traveler at the border meant to know whether the prescribing/distributing processes in the overseas jurisdiction are the same as those required here in NZ under our Medicines Act 1981? What if the controlled drug requires a prescription here in NZ, but in the travelers home country can be sold by pharmacists over the counter? Does the failure to have gotten a prescription for the medication mean that s.8(2)(l) does not apply? And so on ... .

Finally, marijuana can be lawfully supplied under NZ law - see Alex Renton's case. Its just it requires special ministerial permission on a case by case basis.

Post new comment

You must be logged in to post a comment.