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The Discrepancies Between Drug Policy and Law in New Zealand

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According to the New Zealand Drug Harm Index (2016), the social cost of drug-related harms and the ensuing interventions are estimated to cost $1.8 billion annually, despite the health budget averaging a mere $351.4 million (New Zealand Drug Foundation, NZDF, 2017). One survey suggests that approximately 604,000 New Zealand adults consumed an illicit drug in 2018, whereas just over 5,200 individuals were convicted of drug-related charges in that same year (Ministry of Health, 2019; Ministry of Justice, 2019). Both licit and illicit drugs are used in New Zealand for a myriad of reasons: recreationally, experimentally, for performance enhancement, to medicate physical or emotional pain, spiritual discovery or after peer pressure, with the vast majority of users not negatively affected from their use in the long-term (NZDF, 2017). However, the punitive stance of the Misuse of Drugs Act 1975 (MDA) means that a great deal is spent on enforcement strategies to punish and deter those associated with illegal substances, making it difficult for individuals with addiction problems to seek help- with only one third of problematic users receiving support to help reduce their use annually (NZDF, 2017). Acknowledging that drug-harm is extremely prevalent in New Zealand and that the punitiveness of the MDA can have harsh consequences, the National Drug Policy 2015-2020 (NDP) was enacted to promote proportionality, compassion and innovation in the justice system (Inter-Agency Committee on Drugs, IACD, 2015). The NDP aimed to minimise drug and alcohol harm and prioritise health-interventions, laying out its three ‘priority’ areas to focus on (ICAD, 2015). When analysed however, the MDA and NDP seem to contradict one another- insinuating the impracticality of having a drug policy that refutes the drug law it sits behind[1]. A snapshot of these contradictions will be the focus of this essay, due to limited wordcount: how the NDP insists that legislation deters drug-use despite the outdated ideas of the MDA; the NDP advocates for evidence-based interventions whilst the categorisation of punishments of the MDA were found to be arbitrary; the NDP states that harm from drug-laws are apparent whereas the existence of the MDA ensures these harms; the NDP treats drug-use with a health-focus whereas the MDA treats drug-use as a criminal issue. Therefore, the disparities between the MDA and the NDP suggest the two frameworks are mutually exclusive and that the punitive effects of the MDA are primarily felt, causing a great deal of detriment to those policed and officially labelled ‘drug offenders.’

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Whilst the NDP affirms that current “legislation and law enforcement act to prevent and deter” drug-use, the outdated-nature of the MDA has ensured this policy has not been put into practise (IACD, 2015, p. 21). The MDA was implemented in response to President Nixon’s 1971 ‘War on Drugs,’ aiming to ‘crack-down hard’ on drug-users, viewing them as criminal and declaring drugs as “public enemy number one” (Sharp, 1994, p.1). The MDA’s enactment was prior to the Harm Reduction movement of the eighties, which arose in regard to the hysteric HIV epidemic, the MDA adversely reflecting the view that punishment of users should be prioritised over treatment (Adamson & Todd, 2010). Forty-four years later however, the same antiquated ideas are enforced despite the changed drug-landscape and the emerged research that criticises imprisonment as a deterrent- finding that prison-environments may exacerbate drug-use (Farrington & Welsh, 2007). Whilst the NDP insists that legislation “has responded to changing environments and technologies,” it was not until late 2013 that the Psychoactive Substances Act was established, meaning that for years the MDA failed to provide a coherent legislative framework for penalising psychoactive drug-users- resulting in potentially erratic allocations of punishment (IACD, 2015, p. 17; Adamson & Todd, 2010). Furthermore, according to the World Drug Report (2018) illicit drug-use in New Zealand has climbed steadily over the last few decades despite the United Nations’ push for “a drug free world,” with 24.1% of those released from prison in 2016/2017 re-convicted for drug-offences within 12 months of release (Department of Corrections, 2018). Despite the prohibitory stance of the MDA, self-report data insinuates that drug-use occurs regardless of punishment, with one study suggesting that as far as 43% of New Zealanders had used an illegal drug in 2018 with the majority of use being unproblematic- questioning the efficacy of the MDA in deterrence (Winstock, Barratt, Ferris & Maier, 2017). From these examples it seems that the law enforcement measures arising on account of the MDA do not appear to have the desired effect on the consumption of illicit substances, with ‘drug-offenders’ and undetected users continuing to consume despite the legal consequences. Does the ‘public enemy number one’ idea of the MDA suggest that the widespread number of users are all deviant? Are they all lurking on the margins of society like Nixon suggested? These notions are outdated and improbable as current research deems that drug-use is done by all groups in society and does not solely have to be problematic (NZDF, 2017). Moreover, the NDP’s endorsement of the MDA’s adaptability has been disproven, meaning that for over forty years New Zealand has been stuck with this system that proposed to deal with the drugs ‘problem,’ but this problem has continued to stick around regardless of the penalties or policies in place. This has negative implications for those who are policed and punished under the MDA, granting them a fate similar to the ‘war on drug-users’ notion of the past, despite the NDP being in place to encourage compassion and proportionality.

Despite the NDP advocating for “penalties proportionate to potential [drug] harms and evidence-based consequences” when dealing with drug-use, the arbitrary categorisation of drugs in the MDA and the ensuing penalties are negating this aim (IACD, 2015, p. iii). Bancroft (2009) stated that drugs are social categories which are treated differently depending on who uses them, how and what for, with no pharmacological indicators distinguishing a substance from being ‘legal’ or ‘illegal.’ With this in mind, one UK study examined the validity behind the categorisation of drugs in certain OECD countries, including the New Zealand MDA, finding that the sharp divisions between the A, B or C classed drugs were not justified in terms of degrees of harm (Nutt, King & Phillips, 2007). Furthermore, Nutt, King and Phillips (2010) found that despite the legal categorisation of illicit drugs in terms of risk, alcohol was overwhelmingly found to create the most personal and interpersonal harm over any illegal or legal substance, with class C drugs like marijuana producing relatively little harm. Whilst the NDP assures that “of all health loss… alcohol comprises of the majority of this loss,” alcohol is still not considered by the MDA damaging enough to be heavily policed nor prohibited like several other ‘less-harmful’ illicit substances (IACD, 2015, p. 3). The NDP goes further to contradict itself, stating that “in some cases, such as meth, we want to eradicate all supply and use… with alcohol to drink moderately,” despite acknowledging that harm from alcohol consumption exceeds even that of methamphetamine, creating this bifurcation of ideas and disallowing the moderate use of other substances that are deemed ‘illegal’ but are less harmful (IACD, 2015, p. iii). Despite the NDP’s aspiration to increase innovation and proportionality into the justice system, the arbitrary punishments still utilised under the MDA ensure that those convicted or imprisoned for drug-related offences are done so unjustifiably- the official brand of ‘offender’ negatively affecting their own lives and those around them. As of March 2019, 11.4% of prisoners in New Zealand were imprisoned for drug-related charges as their most serious offence, or around 1150 individuals, implying that 1150 people may have been imprisoned based on the fact that society deemed their substance of choice ‘unacceptable’ and ‘deviant,’ with no scientific basis to go off (Department of Corrections, 2019). Due to the contradiction between the two frameworks, the continued adherence to the MDA means that the idealistic aim of the NDP to encourage ‘proportionality’ will not come to be. Whilst the NDP calls for an ‘evidence-based’ method of managing drug-users, the arbitrary nature of the MDA’s drug categorisation refutes this, causing notable harm to those entering the justice system as ‘drug-offenders.’

Despite the NDP stating that “compassion is crucial… harms we are trying to prevent comes from our approach as much as their use,” this statement is contradicted as the continued adherence to the MDA means that the harms arising from drug laws will persevere (IACD, 2015, p. ii). Drug laws cause detriment to individuals in a myriad of ways, especially after revelations about arbitrary categorisations, with imprisonment negatively impacting employment, housing, relationship and overseas travelling opportunities- lowering one’s quality of life (New Zealand Law Commission, 2011). Additionally, the formal label of ‘drug-offender’ heavily stigmatises those associated with illicit substances, with stigma noted as a key driver that prevents people from accessing treatment, fuelling the negative public opinion towards drug-use and further deteriorating the self-worth of users (Zhang et al., 2014). Furthermore, the NDP acknowledges that a protective factor against future offending is to “stay engaged in education,” but young New Zealanders who receive drug convictions (that may subsist for life) are suspended from school and are thus unable to fulfil this objective- highlighting how the NDP is not being put into practise (IACD, 2015, p. 3). Moreover, the Christchurch Health and Development Longitudinal study found that harm from drug-laws manifested in the disparities between arrestee ethnicities, finding that Maori were three times more likely to be arrested than non-Maori in 2014 for drug-offences (Fergusson, Boden & Horwood, 2015). Continuing this trend, as of March 2019, Maori consisted of 51.3% of the prison population whilst only comprising 15% of the general population- insinuating that a possible racial perception of crime may be apparent, negatively influencing the policing of these punitive laws in New Zealand (Department of Correction, 2019). Whilst the NDP’s ideas align with the finding that drug-laws do cause harm “as much as” drug-use itself, it appears that without reform of our drug laws that shift away from this ‘lock ‘em up’ mentality, the devastating effects will remain (IACD, 2015, p. iii). Take the case study of Portugal, who decriminalised all drugs for personal use in 2001, leading to the increase in treatment and substance-education programmes, lowering the proportion of drug-injecting users and HIV diagnoses whilst leading to a decline in drug-related deaths by 655% (Vale de Andrade & Carapinha, 2010). Based on the polarised views of both politicians and the populous, it is doubtful the government will follow this radical change anytime soon, but it does give insight into benefits of prioritising healthcare over criminalisation- making it less threatening for problematic users to attend treatment earlier in their drug-taking history (Adamson & Todd, 2010). Regardless of the NDP’s acknowledgement that drug laws are harmful, the continued enforcement of the punitive MDA is detrimental to problematic and unproblematic users alike. Without shifting away from the notion that drug users are ‘criminals’ and must be punished, it appears that the harms arising from New Zealand’s archaic drug laws will persist, denoting the mutual exclusivity of the NDP and MDA.

Whilst the NDP states that “alcohol and other drug problems are first and foremost health issues,” the MDA conversely regards drug-use as a criminal issue and therefore punishment is prioritised over health interventions (IACD, 2015, p. iii). This prioritization is reflected in expenditure statistics: a total of $171 million was spent by government enforcement agencies in 2017/2018 to police, process and imprison drug offenders, whilst a mere $16 million was spent by Corrections on addressing the substance-use and dependency issues of inmates (Department of Corrections, 2019, p. 35; Allan, 2018, p. 90). Although the NDP strives to “promote and protect health and wellbeing,” one New Zealand study found that 87% of prisoners had a lifetime diagnosis of substance-abuse disorder, but less than half of those received treatment for their addiction within 12 months of incarceration (Indig, Gear & Wilhelm, 2016). The reasons behind this unorthodox management of prisoners, whose rights were not forfeit because they used drugs, were not stated- but Allan (2018) mentioned that underfunding in the treatment area means that drug-services are unable to commit to the long-process of intervention and a high-turnover of specialised staff means that little resources are available to help. However, back in 1971 when the Blake-Palmer report was undertaken by the Board of Health, it recognised that without adequate attention or fund allocation to drug treatment, legislative attempts to control use and importantly misuse would be unlikely to succeed (New Zealand Law Commission, 2011). The recommendations of the Blake-Palmer report did not make it into the later MDA unfortunately, as these ideas failed to align with the political values of the time period (New Zealand Law Commission, 2011). Therefore, the continued implementation of the MDA ensures that punishment will be given precedence over treatment, resulting in prison overcrowding (despite five prisons being built since 2005) whilst intensive intervention-programmes are heavily waitlisted and understaffed (NZDF, 2017). Despite the NDP’s insistence that “relapse is common for struggling addicts” and a treatment-focus is needed to reduce misuse, the criminalising nature of the MDA is detrimental to seeing the harm-reduction ideas behind the NDP being put into practice (IACD, 2015, p. 11). The argument above exemplifies once more that the drug policy in New Zealand is contradicted by the law it sits behind, illustrating the infeasibility of having both frameworks working in concurrence. This has negative implications for those formally branded ‘drug-offenders’ as they are not receiving the “compassionate, innovative and proportionate” approach that was promised (IACD, 2015, p. i).

Despite criticism towards the misalignment of drug policy and law, the New Zealand government have recently called for submissions pertaining to the Misuse of Drugs Act Amendment Bill that may bring forward the health-focussed goals of the NDP. One of the advocated changes to the MDA was the increased use of Police discretion when dealing with those who had used or possessed any illicit drug, instead of the strict adherence to apprehension procedures; the Bill would require prosecutions to occur only if it was in the public interest to do so and the option to refer seemingly problematic users to treatment must be made available (NZDF, 2019). This proposal intends to alter Police mindset from a ‘presumption of prosecution’ to a ‘presumption of non-prosecution,’ ideally reducing the number of individuals convicted for low-level drug offences and minimising the harm caused by people entangled in the justice system (NZDF, 2019). Whilst discretion may appear to have a positive impact on lowering the proportion of those officially labelled ‘drug-offenders’, would Police discretion have an adverse effect on Maori conviction and imprisonment rates? Whilst it is recognised there is no evidential support for the claim that the New Zealand Police are racist, however, it would be interesting to observe whether this encouraged use of discretion would exacerbate the overrepresentation of Maori in criminal justice statistics as the literature suggests – with Pakeha more likely to receive the benefits of discretion (NZDF, 2017). In the UK, the use of Police discretion was measured by the number of ‘out-of-court’ disposals given out instead of prosecutions. Slothowler (2014) noted that both youth and racial minorities were significantly less likely to be given the opportunity for alternative action than other groups – with those of European-decent more likely to receive this benefit. Will this happen in New Zealand? With Slothowler’s study (2014) in mind, it appears that New Zealand must come a long way in drug-law reform before the harms from the laws itself are eradicated – despite this proposition to bridge the gap between the goals of the NDP and MDA.

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The main ideas behind New Zealand’s NDP are contradicted by the drug-law it sits behind, meaning the policy’s pillars of compassion, innovation and proportionality are not put into practice. Whilst the NDP advocates for the efficacy of legislation, evidence-based approaches, reducing drug-law harm and a health-focus to drug-use, the outdated, punitive and arbitrary nature of the MDA refutes these ideals. This has negative implications for those ‘unnecessarily’ snared into the justice system and branded with a criminal-history, the stigma reducing career, relationship, living and travelling opportunities whilst consequently lowering user’s life qualities. Due to the punitive mismatch between policy and law, enforcement agencies are heavily invested in, allowing for more individuals to be policed, apprehended and convicted for drug-offences whilst resources for intensive drug-treatments are lacking- impeding problematic users from receiving help to overcome their addictions. Whilst the NDP intends to “promote and protect health and wellbeing,” the draconian ideas of the MDA have ensured that for both problematic and unproblematic users this will unlikely be their reality (IACD, 2015, p. i). In spite of these criticisms, the MDA Amendment Bill is currently under construction to further align the ideals of the NDP with a reformed drug-law- promoting the use of discretion before formally prosecuting those using or possessing any illicit substance. Additionally, Police would be able to refer offenders to health-interventions if needed, akin to the NDP’s harm-minimisation aspect. Although this amendment does not abolish the harms arising from drug-laws and may create additional problems, it seems to be one step closer to the health-centred approach that the NDP necessitates, giving opportunity for the compatibility between policy and law. If so, the positive implications of the NDP may surface and drug-users may get a taste of their deserved health-focussed reality.


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[1] Laws are the set-out standards that regulate the actions of inhabitants, with breakage of these laws resulting in different penalties (Pretorious, 2014). Alternatively, a policy document is not law; policies are created by governments to state their goals of what they were wanting to achieve in a specific timeframe, listing the methods, principles and potential laws that will be created and utilised to achieve them (Pretorious, 2014).

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