Apparently Peter Dunne thinks [update: thought ... see end of post!] I'm wrong about bringing medical marijuana into New Zealand. Here's a longer discussion of why I don't think I am.

Yesterday I wrote this post, leveraging off a RNZ story about a judge discharging a woman without conviction for mailing herself medical marijuana from the US. In it I claimed that, on a straight reading of the Misuse of Drugs Act 1975, it appears that personal imports of a month's worth of medicinal marijuana is lawful (so long as you personally carry it into the country through Customs).

That's a view that I repeated to a reporter from RNZ news, and it is included in this follow up story. But apparently the Ministry of Health thinks that I am wrong, because RNZ's story also quotes the Associate Minister of Health, Peter Dunne, as saying:

"The advice that I've had is no that is not possible. Because they are still bringing in substances that are controlled substances under our Misuse of Drugs Act and that they would be probably be confiscated at the border."

Let's at the outset note the use of the weasel word "probably" in that sentence - I suspect that he really means "hopefully". Because I stand by my original statements and think his claim that medical marijuana (at least, medical marijuana obtained by way of a prescription from an overseas doctor or other medical professional) could lawfully be confiscated at the border is wrong.

(Note that it may very well be true that Customs would, as a matter of fact, confiscate medical marijuana from travelers at the border. I just think that their doing so would be unlawful. But trying to get a government agency - especially an agency like Customs - to do what the law says they should is not always easy!)

To recap and develop what I said in yesterday's post, it generally is unlawful for an individual to possess or import marijuana into New Zealand in either medicinal  or recreational forms. In its "raw" form it is a class C "controlled drug" under the Misuse of Drugs Act 1975. In a refined or processed form (as is the case for pharmaceutical-grade products), it is a class B.

However, there are many substances that have therapeutic purposes (but are open to misuse/abuse) that also are listed as being controlled drugs; substances that we commonly think of as "medicines". Codeine. Pentobarbital. Camazepam. Diazepam. Pseudoephedrine. And so on. It is important to note that the Misuse of Drugs Act 1975 doesn't distinguish between "good" drugs (medicines) and "bad" drugs (not-medicines). Rather, it simply categorises "controlled drugs" into three levels (A, B and C ... or really bad, bad and quite bad) and attaches consequences to possessing/importing each.

So here's the question. What happens if a person arrives at a New Zealand airport with a bunch of pills prescribed to them by an overseas doctor for some medical condition, which happen to contain a "medicine" which New Zealand considers to be a "controlled drug"? Does that person's seeking to bring the pills into New Zealand constitute an attempt to "import" the controlled drug - a criminal offence that can get you locked up for years? Can they even keep the pills, which may be very necessary to treat some medical condition, while they are in NZ?

Well, you'd think from a common-sense point of view, the answer would be "no" and "yes" respectively. And that is precisely what the Misuse of Drugs Act says in s.8(2)(l):

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.

Note that this exemption does not turn on whether or not New Zealand presently permits a particular controlled drug to be prescribed for therapeutic purposes under the Medicines Act 1981. It instead turns on three questions.

  • Is the drug "a controlled drug required for treating the medical condition of the person"?
  • Is the "quantity of drug ... no greater than that required for treating the medical condition for 1 month"?
  • Was the drug "lawfully supplied to the person overseas and supplied for the purpose of treating a medical condition"?

If the answer to these three questions is "yes", then you may possess the "controlled drug" when entering New Zealand. And that appears to be exactly how Customs views the matter, because on its website it gives this advice:

If you arrive in New Zealand carrying controlled drugs on you or in your luggage (methadone for example), you may import it provided that you:

  • Declare the controlled drugs on your passenger arrival card.
  • Do not have more than one month’s supply of the controlled drug with you – if you have more you will need a licence to import from the Ministry of Health.
  • Prove to Customs that the drug:
    • is required for treating your medical condition
    • 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.

So here's the challenge I'd lay down to Minister Dunne and his advisers. In the next year Australia likely will begin to make medical marijuana available (I see Minister Dunne thinks this is "several years" away, but I'll believe what people actually in Australia say). Let's imagine that once it does so some New Zealander flies into Brisbane (Queensland is very keen to get on with distributing the product), sees a doctor there about their medical condition (chronic pain syndrome, say) and is prescribed a month's worth of medical marijuana to treat that condition. She fills that prescription before boarding the plane back to Auckland, declares on her arrival card that she possesses this particular controlled drug and presents at Customs with her prescription/proof it has been lawfully obtained in Australia. How does her situation fit into s.8(2)(l)?

  • She "requires" the medical marijuana to treat the symptoms of her chronic pain syndrome - in the context of the provision this means that the person only needs to show that they have a particular medical condition for which the controlled drug has a therapeutic effect, rather than have to prove that the controlled drug is the best or optimal form of treatment available (as is the case when, say, seeking permission to use medical marijuana as a "new drug" from Minister Dunne under the Medicines Act 1981). Unless, of course, we're going to say that Customs officers can decide under s.8(2)(l) whether someone with a broken leg really "requires" codeine (a class C drug) to treat their pain when they could maybe get by with taking some aspirin?
  • She has a month's worth of the drug.
  • She got it lawfully from an Australian doctor/pharmacist in order to treat her medical condition.

So given this, on what basis can Customs then confiscate the medical marijuana? It can't simply be that marijuana is a "controlled substance" (as Minister Dunne says in his statement). So is methadone (the example Customs uses). So is diazepam. So is codeine. Both class C controlled drugs, just like raw marijuana. So are oxycodone or morphine, which are both class B controlled drugs like processed marijuana. Yet if these drugs are "required" (i.e. suited) to treat a person's medical condition and were lawfully obtained overseas, you can bring a month's worth of them into the country. That's the whole point of s.8(2)(l) - it permits controlled drugs to be brought into NZ and then used for personal treatment purposes! And what it doesn't say anywhere is that those controlled drugs first must be approved as "medicines" here in New Zealand.

So how could properly prescribed medical marijuana be treated any differently to other therapeutic controlled drugs under present law? Because that is a position I would love to see the Crown have to defend in, for instance, an application for a declaratory judgment ... in case anyone out there was keen to test the matter?

Updated: It now appears that Peter Dunne agrees with my legal analysis above, just thinks I'm wrong about how quickly medical marijuana will become available in Australia. I can live with that.

Comments (15)

by Colin Hunter on March 06, 2016
Colin Hunter

Isn't this really a conflict of laws issue? In terms of the statutory definition of "lawfully supplied". Wouldn't the courts apply our law and not the law of the place where the transaction took place to that question. Hence marijuana could not be lawfully supplied, but other controlled substances, that would have met the criteria of lawful supply here would be?

by Andrew Geddis on March 06, 2016
Andrew Geddis

@Colin,

The problem with your reading is that the Act doesn't say "supplied overseas in accordance with NZ law"! Rather, the natural reading of the language is that the drug must be given to the person in accordance with the law of the place where they received it.

In this way s.8(2)(l) resolves the potential conflict of laws problem by allowing overseas medical judgments (taken within the context of the laws of those overseas places) trump status. There will always be people coming to NZ with controlled drugs that medical folk in an overseas jurisdiction say are needed to treat some medical condition. Rather than require adherence to our domestic procedures for being allowed to possess those drugs (go to a NZ doctor and get their authorisation for using the drug by way of a prescription - something that it is impossible to do before you enter the country!), we allow that overseas medical judgment to authorise bringing a limited amount of the drugs into NZ for that person's use.

If that is the case, then it doesn't really matter what NZ law says about doctors being allowed to prescribe the drug in question, or how the Ministry of Health would have to authorise its use domestically, or the like. Just as we don't question (say) overseas medical judgments about which particular pain relief medication to use to treat a sore back, we don't question the judgment that a particular controlled drug has suitable therapeutic effects for some medical condition. Unless we think s.8(2)(l) really empowers Customs to say to a traveler: "I'm sorry sir - your American doctor may have thought Oxycontin suitable for your back pain, but under the rules governing the prescription of controlled substances here in NZ you would never have been given such a strong medication for that ailment. So as you would never have been lawfully allowed to get it in NZ, you'll have to give it up." Is that:

(1) Something we really want to do (leave the traveler with no medication at all for his condition, even if it isn't medication that NZ law would have provided)?

(2) A role Customs agents are well suited to fulfill?

Finally, note a final very good reason for taking the broad reading of the legislation that I'm advocating. A tourist/visitor/returning Kiwi who turns up at a NZ airport with a controlled drug that has been given overseas to them to treat a medical condition is potentially committing a very serious offence - attempting to import a controlled drug carries a very hefty jail term. So unless s.8(2)(l) applies, they are (potentially) in a lot of trouble. If we then make s.8(2)(l)'s application dependent on how NZ law distributes/permits the use of controlled drugs for therapeutic purposes, then a person who gets the drug in an overseas place that regulates those matters differently to NZ can never claim its protection (because they could never get the drug "in accordance with NZ law). Meaning that they are criminals just for being sick and trying to bring the treatment they got for it overseas back to NZ. 

That seems ... a bad outcome.

by Raymond A Francis on March 06, 2016
Raymond A Francis

Instead of worrying about how many angels can dance on a pin head (s.8(2)(l)  which could be easily overturned with the change of couple of words in the Act)

How about we do some proper testing of these drugs to see if they really work and move on from there. At the moment we rely on ancedontal evidence that everyone knows is not reliable, a crushed aspirin in orange juice sold for $1000 a month might work just as well

Some double blind testing would throw some light on the matter

by Ross Bell on March 06, 2016
Ross Bell

I reckon Dunne's correct about how long it's going to take before the Australian research trials result in approved medicines. The researchers themselves haven't even begun growing the grips. 

The federal law change the other week was done simply to allow state governments approve growing cannabis for those various research trials. New zealand law already allows a "prohibited plant" to be grown for research purposes; once ministerial approval has been given. (As far as I'm aware, the only licenses granted were to Police and ESR to grow grips in order to estimate yields for prosecutions).

What I think will happen is that the Aussie trials will result in medical products being approved by the authorities there. And then anything approved by them will simply be approved by Medsafe here - and then, yes as you say, people will be able to bring approved medicines across the border if they're not already available from a pharmacy in NZ.

by Ross Bell on March 06, 2016
Ross Bell

Silly phone. "Grips" = "crops"

by Colin Hunter on March 06, 2016
Colin Hunter

@Andrew

Thanks for your considered opinion.

I admit though I'm not really convinced that what you are saying is a natural reading. I agree with you there are problems with a conservative approach, but the act does state with regard to the exception at s 8(2) "Notwithstanding anything in section 6 or section 7, but subject to sections 22 to 25 and any prohibitions, limitations, restrictions, or conditions, imposed thereby or thereunder or by or pursuant to any regulations under this Act,—"

The ability to import is subject to the restrictions under the act. I think legally supplied, means supplied under the act and hence (under NZ law). 

There are practical problems with your reading too. Customs officials would need to know the formal requirements of foreign law to determine whether it could be imported. It also seems to undermine the policy of the act that supply of drugs be determined under it. Having said this, I appreciate there are problems and I would dearly love to see medicinal marijuana adopted in New Zealand.

 

 

by Andrew Geddis on March 06, 2016
Andrew Geddis

@Colin,

Couple of points. You suggest:

The ability to import is subject to the restrictions under the act. I think legally supplied, means supplied under the act and hence (under NZ law).

I interpret the "subject to" provisos in exactly the opposite way. Of course New Zealand law can take precedent over overseas law. The effect of the proviso is then that if (say) notice is given under s.22 that medical marijuana (or methadone, or psuedoephedrine, or whatever) cannot be imported into NZ at all for a one year period, then that notice trumps the s.8(2)(l) exemption absolutely. A person can't turn up at the border having got that drug lawfully in another jurisdiction to treat an illness and bring it in, because NZ law says that the drug cannot come in at all.

(On this reading, the "subject to" provisos are included so as to allow the Minister by regulation to override/qualify the exemptions contained in the primary enactment - because without making the "subject to" provisos explicit, subordinate legislation could not prohibit what s.8(2)(l) or any of the other s.8 exceptions permit.)

But absent any specific rule/regulation prohibiting absolutely the importation of medical marijuana into New Zealand (indeed, there is provision to do so under existing Ministry of Health processes), then how do the "subject to" provisos override what I suggest is the otherwise applying default rule - that if the drug was obtained overseas for therapeutic purposes according to the laws of that place, NZ will permit a limited amount of it to be brought into the country? Yes, that default rule can be overridden ... but if it hasn't been, then it isn't!

Finally, there are two possible readings available here. One is that s.8(2)(l) allows importation as long as the drug was obtained overseas according to overseas law. The other is that s.8(2)(l) allows importation only if the drug was obtained overseas in the precise way it could be obtained in New Zealand under New Zealand's laws. On the general interpretative principle that criminal laws must be clear, does not the rule of lenity point in favour of the first reading? Especially in the context that most (even if not all) of those that the exemption applies to are from overseas with little-to-no means of learning exactly what is required in order to "lawfully" obtain a particular controlled drug under NZ law? In a context where getting that call wrong opens the individual up to potential arrest, charge and conviction of a very serious offence - attempted importation of a controlled drug! 

On your other point that:

Customs officials would need to know the formal requirements of foreign law to determine whether it could be imported.

Customs practice (as outlined here) appears to support my interpretation of the legislation:

If you arrive in New Zealand carrying controlled drugs on you or in your luggage (methadone for example), you may import it provided that you:

...

Prove to Customs that the drug:

...

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.

To me, that reads like Customs will accept at face value a doctor's letter/pharmacy label as proof that the controlled drug has been supplied in accordance with the country of origin's laws and that this is all that they will look at? Note also that Customs gives no warning to travelers, etc along the lines that "the drug must have been supplied to you in accordance with how New Zealand law requires the drug to be supplied." If that is somehow regarded as implicit in the term "lawfully supplied" ... well, it's really not obvious, is it? Taking into account once again what is at stake - attempting the import of a controlled drug is a really big deal!

by Andrew Geddis on March 06, 2016
Andrew Geddis

@Ross,

OK - I accept the time frames may be wider than I've been suggesting. Thanks.

But when you say:

And then anything approved by them will simply be approved by Medsafe here - and then, yes as you say, people will be able to bring approved medicines across the border if they're not already available from a pharmacy in NZ.

Are you saying that you think Medsafe approval of a controlled drug is needed before  can be brought in under s.8(2)(l)? Which bit of the provision do you think requires that step?

by Ross Bell on March 07, 2016
Ross Bell

@Andrew. Re Medsafe - I wasn't speaking to the law; I think you're probably correct in your interpretation. I'd have to have another look at the Medicines Regulations to see if there are any fish hooks in that for your analysis.

My comment re Medsafe was one of a practical rather than legal nature: they're watching very closely what's happening in Australia and elsewhere. My gut says that as soon as the Aussies or FDS or similar approves a medpot product, then it would receive very swift approval here. (And then hopefully Pharmac subsidises them quickly too).

by Ross Bell on March 07, 2016
Ross Bell

Dammit: "FDS" = "FDA"

by Tim Watkin on March 07, 2016
Tim Watkin

So in response to my tweeting this post, Dunne tweeted on Sunday, across 3 tweets:

"Geddes [sic] is wrong – I've just been in Australia talking to ministers – their law only permits cultivation for clinical purposes. It does not permit cultivation of a product – they told me products to market were still 2-3 years off. Cultivation of crops for clinical trials has been permissible in NZ for some years but there has been no interest."

 

by Andrew Geddis on March 07, 2016
Andrew Geddis

@Tim,

Thanks for that - as I said in response to Ross above, I'll withdraw and apologise on the timing issue. Interesting, but, that he doesn't say why I am wrong on the general importation question!

But saying that, and this goes to Ross and Colin ... the more I think about it, the more I can see that Colin's reading (you can only bring in a "controlled substance" from overseas if you got it there in the same way as you can get it in NZ) is entirely plausible and maybe even the legally correct one! That would mean medical marijuana can't be brought into NZ, as there is no legal way (short of specific Ministerial permission) to be supplied it here.

Thanks for giving me the chance to argue it through in words.

by Rich on March 07, 2016
Rich

What about the US? Several states have legalised medical marijuana (although Federal law proscribes it)

by James Green on March 07, 2016
James Green

@Raymond

We're well past anecdote. However, 79 double blind trials in, the light shed on the matter so far is dim.

http://www.ncbi.nlm.nih.gov/pubmed/26103030

 

by Stewart Hawkins on March 07, 2016
Stewart Hawkins

Well here is one vote for legalising all drugs. It doesn't help lawyers though!

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