How New Zealand got hooked on moral panic over drug laws

19/10/2018

A new bill to increase the penalty for drug supply and distribution has passed its second reading in parliament. Green MP Chloë Swarbrick looks back on a decade of harmful drug laws.

OPINION: We are at a crossroads on drug policy in New Zealand. There is a real risk we take a backward step, further entrenching a deeply broken system that increases harm in our communities.

This week National Party MP Simeon Brown's Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill passed its Second Reading with the support of New Zealand First.

The bill would increase the penalties for possessing with intention to supply (a problematic yet typical machination of archaic drug law itself, reversing the burden of proof), supplying and selling psychoactive substances from two years to eight years. New Zealand First have signalled their intention to introduce a Supplementary Order Paper to increase the penalties further, from eight years to 14 years.

As many MPs in their speeches made clear, people are dying. We must do something. The Greens believe that "something" must actually work. We cannot in good faith apply the same approach that got us into this mess in the first place. Politicians, as representatives of the people of New Zealand, have a responsibility to use the decades of evidence and advice they've received to genuinely reduce drug harm.

We've been operating against the evidence for a very long time. The centrepiece of New Zealand drug law is the Misuse of Drugs Act 1975 - a carbon copy of the UK's Misuse of Drugs Act 1971. Its premise is that any use of the listed drugs is a misuse, and therefore carries penalties.

By way of contrast, in 2001 Portugal became the first country in the world to decriminalise all drugs, massively increasing funding available for mental health, drug abuse and addiction services. They have now racked up 17 years of quantitative and qualitative evidence to demonstrate that while they're obviously not a utopia, all harmful statistics associated to drugs (such as overdose deaths and problematic use) have decreased substantially.

Yet, Portugal remains an outlier in its successful, bold move; for politicians throughout the rest of the world, maintaining prohibition and ratcheting up penalties remains the preferred policy option. This is a costly mistake.

In the early 2010s, New Zealand began seeing the proliferation of a new breed of substances. Following 2007's 'ban' of party drug benzylpiperazine (BZP), savvy minds turned to concocting a raft of new psychoactive products which flooded onto the market faster than legislators could legislate their prohibition in the Misuse of Drugs Act 1975.

2011 saw the Law Commission produce their 408-page comprehensive report on the efficacy of (or, as the case became, lack thereof) the decades-old Misuse of Drugs Act. Their first recommendation was to repeal and replace the Act with something that was administered by the Ministry of Health (as opposed to the Ministry of Justice), explicitly focussed on reducing drug harm. They proposed a new regulatory model for emerging psychoactive substances.

In the two years following, New Zealand continued to see growth of synthetic substances, with parliament in 2013 moving to unanimously pass the Psychoactive Substances Act 2013. At the time, it was heralded internationally as a model to regulate drugs and their potential harm. But that optimism quickly waned.

The 2013 Act included temporary licencing provisions for substances that had not been shown to be harmful. The introduction of regulations, such as purchasing age and location of sale restrictions, ironically meant that whilst the products were removed from their ubiquitous place on dairy counters, the "problem" became opaque for the first time, as queues of users of these drugs appeared outside of adult-restricted retailers.

Responding to moral panic from communities evidently alarmed by the prevalence of these users, Parliament of the day indulged in political expediency to see knee-jerk revocation of temporary licences. They did so in a 2014 Amendment presented in the form of an intractable combination for the Greens, amalgamating it with clarity around bans on animal testing.

Former Green MP and Health spokesperson, Kevin Hague, attempted to negotiate a split of the Bill, because of our strong support for a ban on animal testing and strong opposition to the revocation of temporary licences. The National Government refused.

In May of 2014, 14 Green MPs were the only politicians in New Zealand's parliament who did not vote for the Amendment imposing a blanket ban on all psychoactive substances, ripping away regulation and forcing the market underground.

Kevin issued this warning in the legislation's final reading:

"Prohibition takes supply out of the hands of regulated, controlled retailers and instead puts that supply into the hands of criminal gangs or other illicit suppliers. Unfortunately, what that means is that the drug dealer on the street in the alleyway behind the shop at Naenae and the drug dealer in the tinny house are not subject to those same controls.

“Those people supplying the demand that will not go away as a result of this bill tonight will not be checking people for their ID or for proof of age. We should expect that supply to people under age will increase as a result of this bill. Those people will not be making a distinction between those products that are low risk and those products that are high risk.

"We should expect that the supply of products that are high risk will increase as a result of this bill. Those people, those illicit drug dealers, will, in addition to having a range of psychoactive substances--those currently legal and those currently illegal--have, in another pocket, other drugs like methamphetamine. So the product of this bill will be that the demand, which will not go away as a result of this bill, will also be met by the increased supply of currently illicit drugs. We are going to be seeing a significant increase in harm."

Kevin, unfortunately, was right. We have seen an explosion of illegal synthetics, and we have seen their harm increase as the chemicals get nastier and concoctions cheaper to throw together.

West Auckland synthetic user Tammara, interviewed by Vice Media earlier this year - four years after the repeal of interim licences - put it best when she said, "You get all these people addicted, like actually f**king addicted, and then just take it away and make it illegal? Of course it's gonna go underground, and people are gonna start making sh*t that is harmful."

An added complex layer is that the dealers of this cheap and nasty drug are often also its users; it's not yet controlled by the gangs because it's not yet as lucrative as the likes of methamphetamine.

Moira Lawler, CEO of Lifewise, responsible for rolling out the 'Housing First' model endorsed by politicians across the aisle, recalls: "Synthetics are really cheap. We've had one of our whanau arrested and charged with dealing and one of the things the police said that really stuck with me was that their unit was full of coins. You don't make your fortune dealing synthetics. It's a small-change drug. But people use it because it's all they can afford."

Communities around our country have lost loved sons and daughters to the synthetics crisis, but according to Coroner's Reports, far more common is the death of country's homeless and our jobless - our most vulnerable, and most often overlooked.

In 2017, when media reported that at least seven people had died from synthetic usage, former Prime Minister Bill English said it was an issue of personal responsibility, denying government action was needed. That death toll rose to 25 in 2017. So far in 2018, the Chief Coroner has reported they're investigating 40-45 deaths associated to synthetic usage.

Thankfully, we've moved beyond the scapegoat of 'personal responsibility'. Far, far too often, I've heard the term invoked to abdicate political responsibility. We now have political consensus that 'something' must be done. But how on Earth could politicians responsibly come to the conclusion that the same thinking and actions that got us into this awful mess will produce anything other than worse outcomes?

Submitting on Brown's Bill, specialised academics Shore & Whariki Research Centre put forward the evidence and "experience from overseas that increasing penalties for drug trafficking increases conviction and prison numbers while only having a minimal impact on drug prices and availability."

Calls to be "hard on crime" are hollow and meaningless in the face of these deaths, unless the aim is purely to lock more people up without making a dent in demand, and therefore supply, and therefore, suffering. Such has been the political modus operandi for a long time now. The War on Drugs sounds good, and it's the easy and straightforward 'something', but we know it will not work. It will not save lives. It will multiply misery.

Drugs are defined as "a medicine or other substance which has a physiological effect when ingested or otherwise introduced into the body." This is important to note because we regulate a large number of drugs in society, such as caffeine, sugar, and the deadliest known drug in the world: alcohol.

The thing about drug harm reduction is that it recognises drugs, and particularly our responses to those drugs, can cause harm. Of course it'd be easier if people didn't take drugs. But nowhere in the world has eradicated drugs, regardless of the penalties they carry.

So we've got to operate in reality. These drugs exist. We've got to take them out of the shadows. We've got to regulate to reduce harm.

Regulations are often conflated with 'chaos', hedonism and increases in access. What such moral panic fails to recognise is that we presently have chaos; access for any and all in a dangerous black market that isn't monitoring substance safety, providing health information or education, or checking ID. Regulation tempers affordability and access, and allows us the ability to intervene in problematic drug use and dependence.

People are unnecessarily dying, and those people are among our most vulnerable. Harsher penalties will not reduce drug demand - and therefore, supply - because they don't target the drivers of drug use. If we're genuinely set on saving people's lives, we'll be housing the homeless, reducing inequality, investing in mental health, drug abuse and addiction services, and taking substances out of the hands of profit-driven organisations - gangs and corporations alike.

There's a short-lived high in filling up prison cells when the come-down means waking up to greater suffering.

Chloë Swarbrick is a Green Party MP