Further action against P and other drugs
18 December 2003
Further action against P and other drugs
Further action against "P" and other drugs were announced today by Jim Anderton, Chair of the Ministerial Committee on Drug Policy, and Justice Minister Phil Goff.
"Cabinet has agreed to amend the Misuse of Drugs Act to give Police and Customs the powers they need to fight drug crime in this country. It will also provide a quicker way to implement 'presumption of supply' decisions, and strengthen the current needle and exchange programme to bolster efforts to stop the spread of HIV/AIDS and Hepatitis C.
"Last week, I announced a crack down on importers of the two key ingredients of methamphetamine and today we are cracking down on importers who aim to make illicit drugs out of any of the other 20 precursors listed in the Act, with a penalty of up to seven years' imprisonment on conviction," Mr Anderton said.
"Similarly the use of controlled deliveries, where Customs tracks a package believed to contain Class A, B, or C drugs, will be extended to all precursors to allow authorities to arrest importers once they have taken possession of the parcel," Mr Goff said.
"Police and Customs will also have broader powers to undertake personal searches without warrants during a controlled delivery operation, in order to take instant action to recover evidence.
"At present Customs officials cannot detain and search parcel collectors without a warrant, and police can only search without a warrant when the parcel contains class A, B1 or C1 drugs. This precludes precursors and B2 drugs such as ecstasy and amphetamine, and situations where the imported drugs had been replaced with placebos by police or Customs before the delivery.
"The legality of international controlled deliveries has also been clarified to make it clear that when Customs and Police undertake these duties on behalf of another country, they are acting in accordance within New Zealand law and that the liability of the importer is unaffected.
"We are also extending the ability of Customs and Police to conduct personal searches with respect to those detained under the Act on suspicion of internal concealment of drugs," Mr Goff said.
"It's not only importers we are after, with Police being given the power to search without warrant those 'shoppers' they believe are in possession of pseudoephedrine and ephedrine for the manufacture of methamphetamine, " Mr Anderton said.
"'Presumption of supply' is the amount of a drug that presumes you to be a supplier. The agreed amount for methamphetamine or 'P' and for the similar new emerging drug methcathinone or "cat" is now 5 grams down from 56 grams so we will catch more suppliers.
"It was also agreed that the Expert Advisory Committee on Drugs review the 'presumption of supply' for Khat and fantasy-type substances so any recommended change can be included in the legislation," the Progressive Leader said.
Cabinet also agreed that 'presumption of supply' levels be included in the classification process. There can be a delay between enacting the classification of a drug through the Order-in-Council process and the enacting of accompanying 'presumption for supply' through the normal legislative process. To combat the delay, presumption will be enacted when the drug is classified.
A Justice official with expertise of sentencing procedures is to be added to the Expert Advisory Committee on Drugs (EACD). Cabinet also approved changes designed to help improve participation in the needle and syringe exchange programme.
The National Drug Policy provides a framework within which issues relating to minimising the harm from the use of drugs may be analysed. Issues and responses are categorised generally as being matters about controlling the supply of drugs, reducing the demand and limiting the problems. Generally controlling the supply relates to enforcement practices, reducing the demand to prevention strategies and problem limitation is broadly about enhancing treatment. Sometimes the boundaries of each approach may overlap. An effective strategy for dealing with a particular drug issue will usually require the application of policies or practices covering supply, demand and treatment. The decisions outlined today are part of the "whole of government" Methamphetamine Action Plan announced by Jim Andeton Associate Minister of Health and Chair of the Ministerial Committee on Drug Policy in May this year.
The decisions taken are primarily about improving the legal context and the capacity of enforcement agencies to control the supply of drugs. There is one that relates to problem limitation or treatment.
Customs and Police powers
The following decisions relate to improving the enforcement powers of Customs and Police particularly, but not exclusively, with regard to precursor substances. There are 22 substances currently listed in Schedule 4 of the Misuse of Drugs Act (MODA), and as such are not classified as controlled drugs but are key ingredients for the manufacture of them, i.e. drugs like heroin, cocaine, LSD, Ecstacy and amphetamines including methamphetamine.
Power of seizure at the border- background
At present, the MODA contains no offence relating to the import or export of precursors. When persons in possession of precursor substances are stopped at the border, Customs officers can only lay charges for the offence of possessing a precursor. However, possession is difficult to prove in cargo and mail interceptions, as no person has physical possession or control of the substance.
When intercepted by Customs through international mail or commercial cargo, the substances are seized under provisions of the Medicines Act 1981 and the Customs and Excise Act 1996. The penalties provided by the Medicines Act are not appropriate for dealing with substances that are key precursors for controlled drugs.
Power of seizure at the border- decisions
To resolve the issues relating to importation of precursors, section 12A of the MODA will be amended to create two importation and exportation offences for precursor substances. The first offence prohibits importing or exporting a precursor substance with the knowledge that it would be used to manufacture an illicit drug and attracts a maximum penalty of seven years imprisonment. The second offence prohibits importing or exporting precursors without reasonable excuse and attracts a maximum of two years imprisonment. These proposed offences will not impact on legitimate importers of precursor substances but will provide more consistent and appropriate penalties for those importing precursor substances without reasonable excuse or to manufacture illicit drugs. They will ensure that shipments of all types of precursors suspected of being destined for the manufacture of illicit drugs would be liable for seizure.
Power to search without warrant for ephedrine/pseudoephedrine - background
Police are attempting to address the increasing illicit trade in methamphetamine through targeting the precursor substances and chemical reagents used to manufacture the drug - principally ephedrine and pseudoephedrine. The power to detain, search and seize without warrant under section 18 of the MODA is restricted to Class A, B1 and C1 controlled drugs. In particular, Police is concerned that they are unable to respond quickly (i.e. without a warrant) when they are investigating "pill shoppers" who purchase large amounts of pharmacy-only pseudoephedrine medication to pass on to illicit manufacturers. The enhancement of Police powers to search and seize is an action point in the Government's Methamphetamine Action Plan. It was also suggested in a recent District Court judgement (R v John  DCR 57).
Power to search without warrant for ephedrine/pseudoephedrine - decision
This issue will be addressed by creating a third part of the Fourth Schedule and relocating ephedrine and pseudoephedrine into this part. The power to detain, enter, search and seize without warrant under sections 18(3) and 18(2) will then be extended to the third part of the Fourth Schedule. Such an amendment will provide the flexibility for other precursors to be placed or relocated into the third part of the Fourth Schedule by the Order-in-Council process in the future.
Controlled deliveries - background
Customs report that importers often use false addressees, safe houses, or unwitting recipients for the importation of precursors. These techniques are identical to those used by persons or groups importing illicit drugs. Customs' intelligence can also suggest that the ultimate destination of importation may be a known illicit drug manufacturer or a person known to have organised crime links.
Controlled deliveries in relation to precursors
Currently Customs officers can allow a package believed to contain a controlled drug that has been illegally imported into New Zealand to proceed to the importer under the control and surveillance of Customs and Police officers. At present a controlled delivery can only be conducted for Class A, B or C drugs but that power is to be extended to include Schedule 4 precursor substances, to enable the identification of the true importer of the precursor.
Controlled deliveries in relation to personal searches and placebos
Under existing legislation personal searches by Police and Customs officers are limited in a controlled delivery type situation which gives rise to three issues.
Firstly, the attendant Customs officials are unable to detain and search the collector or take possession of the drug found. Hence, the opportunity to charge the person and collect the evidence is lost.
Secondly, Police rely on section 18(3) of the MODA to detain and search the suspect without a warrant in a controlled delivery. Section 18(3) however, is confined to Class A, B1 and C1 controlled drugs. This precludes some current drugs of abuse that are being imported, such as ecstasy and amphetamine because they Class B2 controlled drugs. It also precludes doing a personal search for precursor substances in the Fourth Schedule of the MODA.
Finally, the Police powers under section 18(3) cannot be used in situations where the drugs have been totally substituted with placebos because there are no controlled drugs in the package.
Controlled deliveries - decisions
Because of the use of false names and anti-enforcement tactics employed by the importers and the need for instant action to recover evidence, the power of personal search without a warrant is required in these situations.
Another decision made in relation to controlled delivery provisions, is the need to clarify the situation where the controlled drugs are located outside of New Zealand and New Zealand law enforcement authorities are requested by overseas administrations to accompany and/or accept a controlled delivery; or for controlled drugs that are exported out of New Zealand to another country as part of a controlled delivery. The provisions are to be clarified to make it clear when Customs and Police undertake these duties they are acting in accordance with New Zealand law, and that the liability of the importer is unaffected.
Personal search for those detained for internal concealment of drugs -background
Police and Customs officers have the power to detain a person where there is reasonable cause to believe he or she has any Class A or B drug internally secreted in his or her body. The majority of such detentions occur as a consequence of intercepting suspected drug couriers arriving at international airports. In these circumstances, the detainee is kept in a secure hotel room until the internally concealed drug has passed naturally through the detainee's body and can be seized by Police or Customs officers. While bodily functions occur in private, the detainee cannot dispose of excreted drugs due to alteration of the toilet facilities. A concern has been raised that during detentions (for the purpose of finding internally secreted drugs) it is possible for the detainee to attempt to hide about his or her person or clothing the drugs previously secreted within the body cavities.
Personal search for those detained for internal concealment of drugs -decision
Personal search powers are limited if this situation occurs, therefore Police and Customs officers will be provided with powers to enable them to conduct a personal search of those detained under sections 13A-13M. Such a search could be undertaken if a Police or Custom's officer has reasonable cause to suspect a detainee has concealed drugs about his or her person.
Presumption of supply - background
The Misuse of Drugs Act (MODA) contains a rebuttable presumption that when a person is found with a certain amount of a drug, he or she possesses the drug for the purpose of dealing (by sale or supply). The onus is on the person found with the drug to prove that he or she was not supplying the drug, and that the drug was intended for personal use. This presumption is referred to in the MODA as "presumption of supply".
"Presumption of supply" is set at a default amount of 56 grams for all controlled drugs except those that have a specific "presumption of supply" listed in section 6(6) of the MODA. For example, the presumption of supply for cocaine and heroin is set at half a gram. At present, the MODA must be amended to alter or set a specific "presumption of supply" for a controlled drug. This process can result in long delays due to lack of an appropriate legislative vehicle.
The default "presumption of supply" amount has to cover a large number of controlled drugs. For some drugs 56 grams would be an excessive amount for supply, for example, amphetamine. On the other hand, there are some controlled substances, such as khat (leaves of the catha edulis plant with stimulant properties), where a single dose is over 56 grams. Given the wide range of potency of the controlled drugs, 56 grams can be seen as a relatively arbitrary amount.
Furthermore, a charge of supply exposes the defendant to penalties that are higher than those for possession. For example, Class A drugs have a maximum penalty for supply of life imprisonment. For possession, the maximum penalty is imprisonment not exceeding six months, and/or a fine of $1000. At present the default of 56 grams applies to less potent controlled substances such as khat. This situation could be seen as unfair to some defendants who would be required to prove that they possessed the drug for their personal use. Therefore, it is necessary that the amount of drug determined for either the specific or default "presumption of supply" is an amount that is unequivocally greater than the amount that someone would possess for personal use.
Presumption of supply - decisions
There are four decisions that have been made relating to the "presumption of supply" provisions in the Misuse of Drugs Act (MODA). The first is to speed up the process for enacting the "presumption of supply" associated with any drug that has been classified as a controlled drug. There is frequently a long period of time between enacting the classification of a drug through the Order-in-Council process, and then enacting its accompanying "presumption for supply" through the normal legislative process. It is considered appropriate that the "presumption for supply" should be enacted when the drug is classified. This will be done by transferring the drugs from the MODA into the Schedules, where a specific "presumption of supply" quantity will be attached to each drug. In the absence of better information, the current default of 56 grams will be applied in the Schedules to those drugs that do not currently have a specified amount. However, khat (and any other controlled drugs that are commonly possessed in amounts over 56 grams for personal use) will be referred to the EACD for review and determination of a more accurate "presumption of supply".
The second decision is to repeal the default "presumption for supply". The problem with the default presumption is that it has to cover a wide range of drugs of very different levels of potency. Fifty-six grams of some drugs is an excessive amount of the drug even for supply purposes, while for others 56 grams would not constitute an amount for personal use eg. Khat. It is proposed that in light of the new process for determining the "presumption of supply" that the default should be repealed and a "presumption of supply" be determined for each drug.
The third relates to altering the presumption of supply for methcathinone to 5 grams. This is consistent with the recommendations of the EACD with regard to methamphetamine, a substantially similar drug. Further, khat and fantasy-type substances are referred to the EACD for recommendations about "presumption of supply" amounts.
The fourth is that the EACD should include a representative from the Ministry of Justice. This proposal is in response to the Health Select Committee's reports to the House on two separate occasions.
Possession of needles and syringes - background
The aim of the Needle and Syringe Exchange Programme (NSEP) is to reduce the spread of HIV, Hepatitis C and other blood-borne viruses amongst injecting drug users (IDUs). This aim is primarily achieved through the sale and distribution of sterile injecting equipment. The NSEP also encourages safe disposal of used needles and syringes and provides information about safer drug use techniques. It is operated through pharmacies and dedicated needle exchanges throughout New Zealand (NSEP outlets).
Needle exchange was legalised in New Zealand through the introduction of the Health (Needles and Syringes) Regulations 1987, which allowed sale of needles and syringes to IDUs provided their sale is part of the NSEP. The 1987 regulations also created a legal defence to the charge of possession of a needle or syringe (which is currently an offence under section 13(1)(aa) of the MODA). The defence provides that a person will not commit an offence under section 13(1)(aa), if they can show the needle or syringe was purchased through the NSEP. The 1987 regulations were superseded by new regulations in 1998 but the defence was retained
The NSEP National Co-ordinator has advised that many of their clients fear prosecution and do not defend the charge and are convicted despite the availability of the defence. The reasons for this are:
- the defence is contained in a separate piece of legislation to the offence, making it less conspicuous;
- attendees of the NSEP are unaware that the defence exists or do not feel empowered to use it;
- duty solicitors and lawyers are unaware that the defence exists;
- the onus is on the defendant to prove that they obtained their injecting equipment from an NSEP outlet.
Possession of needles and syringes - decision
The fear of arrest and prosecution for possession of a needle and syringe is seen as a significant barrier to IDUs participating in the NSEP and may be contributing to lower than expected needle and syringe return rates to NSEP outlets. Thus, undermining the effectiveness of an important public health initiative. While the issue of needle return rates will be most effectively addressed by a combination of approaches (such as one-for-one needle exchange) it has been decided to move the defence from the regulations and put it in the MODA legislation as well as reversing the onus of proof so that Police would be required to prove that a needle was not purchased at an NSEP outlet.
Proving the origins of any particular needle or syringe is difficult both for users and Police, due to the anonymous nature of NSEP and the lack of any identifying marks on the injecting equipment, however reversing the onus and moving the defence should overcome the obstacles outlined above and help improve the success of the Needle and Syringe programme. This programme was assessed last year as saving NZ $35 million in treatment costs by lowering the number of cases of HIV/AIDS and Hepatitis C since its inception.