Unsurprisingly, initial political reaction to the Law Commission's drug law review has been negative, despite its measured approach. So how can we tackle the drug problem in New Zealand?
Readers won't be surprised by the very blunt assessment of our drug law given by the Law Commission.
In their public consultation document - Controlling and Regulating Drugs - the Commission says the Misuse of Drugs Act 1975 "no longer provides a coherent and effective legislative framework for responding to the misuse of psychoactive drugs... The Act is now outdated and does not reflect current knowledge and understanding about drug use and related health, social and economic harms."
No wonder the Act isn't fit for purpose in the 21st century, it's 35 years old! Drugs have changed, New Zealanders' appetite for drugs has changed, and our knowledge about the most effective ways to reduce drug harm has advanced. Despite the many ad hoc amendments to our drug law during that time the fundamentals of our drug law have remained.
The Commission's paper traces the history of drug policy and regulation in New Zealand, and reviews the current approach to drug control and regulation. It makes some preliminary proposals for how New Zealand's drug laws can be updated to put in place a modern and evidence-based statute.
Sadly but predictably, the initial political reaction has been negative. This is despite the very measured and considered options canvassed in the review.
I'm hoping to post here some of the Drug Foundation's analysis over the course of the review (until 30 April). But I thought I'd touch briefly on the things that have already got some people a wee bit het up. Those relate to options explored by the Commission for lower level offending (i.e. possession for personal use, social supply, small dealing to support addiction).
The Law Commission says:
"We consider that a less restrictive approach to personal use would:
- provide a more proportionate response to the harm that drug use causes;
- enable law enforcement resources and activity to focus on more harmful drug-related offending like commercial dealing;
- address or mitigate some of the harms and costs that inevitably result from drug prohibition;
- provide greater opportunities in the criminal justice system to divert drug users into drug education, assessment and treatment;
- be in line with the approach taken in all Australian states and territories, the United Kingdom, and many European countries.
"In proposing a new approach to personal use offences, we do not intend to downplay the significant harm that drug use, either on in its own or in combination with other factors, can cause to the user, his or her family, and the wider community. Our aim is to find the most effective way to address this harm. In our view, the current approach is not that way."
The Commission's options include: a formal cautioning scheme, infringement scheme, or a hybrid of both. Full details about these options are outlined in the report, so I won't detail them here; I suspect you all have a fair idea about how these schemes work.
I think the important point to note here is that these options operate within a prohibition framework - they don't legalise nor decriminalise drugs. That's important to remember, because all of the Commission's considerations were required - by its Terms of Reference -to conform with our obligations under international drug treaties (there's a whole conversation to be had on that topic).
Let's gaze across the Tasman and see whether such cautioning and infringement schemes "work":
Diversion programmes have a variety of goals e.g. reducing the harms from receiving a criminal penalty, reducing offending and increasing access to drug assessment and treatment. Diversion programmes differ in their ability to attain such goals, largely due to their chosen mechanism and target population. For example, the less intensive programmes appear better at reducing demands on police and more intensive programmes appear better at reducing drug use and related problems.
That said it has been shown that diversion programmes have had numerous benefits.
Firstly, they have reduced demands on the criminal justice system. For example, the evaluators of the NSW Cannabis Cautioning Programme calculated that the scheme saved 6000 police hours in each year of operation. This is because fewer offenders were sent to court and, compared to a traditional criminal charge, cannabis cautioning produced a saving of 1.5 hours per officer at the point of arrest and seven hours in cases where an offender would have had to go to court.
Diversion programmes have also reduced offending and the likelihood of imprisonment from re-offending. A national review of 12 police diversion programmes in Australia found the majority of offenders did not reoffend following diversion. Moreover, in spite of marked differences in offending between jurisdictions, the proportionate decrease in offending after diversion was relatively consistent across all jurisdictions, with 69-86 percent of offenders without prior records and 31-54 percent of offenders with prior records not reoffending within 18 months. Even among offenders with prior records, a proven predictor of reoffending, most committed either less or similar levels of offending.
A third benefit has been reduced drug use, frequency of drug use and/or harmful use. For example, the proportion of offenders who self reported as regular cannabis users decreased from 95 to 74 percent pre and post undertaking the Queensland Police Drug Diversion Programme and participants in the Western Australian Pre-sentence Opportunity Programme also reported significant reductions in self-reported drug use.
Fourthly, the programmes have improved physical health, mental health and relationships. For example evaluators of the NSW MERIT programme found significant improvements in relation to HIV risk taking behaviour, polydrug use behaviour, psychological wellbeing and elements of physical health.
Lastly, the programmes have increased the cost-effectiveness of responses. For example, studies of the NSW Magistrates Early Referral Into Treatment court diversion programme revealed that drug diversion offered savings equivalent to $2.98 for every $1 invested. This was attributed to reductions in the costs of police investigation, hospitalisations, criminal activity and prison and probation supervision costs.
These schemes aren't perfect. Studies have also shown that diversion programmes can have counter-productive impacts. A particular concern is the issue of net-widening, whereby the likelihood of receiving formal criminal justice contact is increased following the introduction of diversion programmes. As shown in the South Australian Cannabis Expiation Notice Scheme, net-widening can occur because diversion is faster for police to implement. It can also occur due to the belief that diversion will be beneficial for offenders.
In our press release yesterday the Drug Foundation "urged politicians and the wider public to engage constructively with the review and to avoid pointless ideological grandstanding." No joy yet, but I am still hoping we can have a more sensible conversation about new ways to reduce drug harm, and be prepared to learn from interventions that work overseas.
Ross Bell is executive director of the Drug Foundation
For the full drug law review report, and to make a submission, visit www.talklaw.co.nz
Part of this post is based on an article the Drug Foundation is due to publish in the February issue of our quarterly magazine Matters of Substance. If you would like a copy of the magazine posted to you, just email me email@example.com