MISUSE OF DRUGS AMENDMENT (N0 3) BILL NOTES FOR FIRST READING SPEECH 4.20 p.m. Wednesday September 15 2004

Hon. Jim Anderton Associate Health Minister & Progressive leader

I move that the Misuse of Drugs Amendment (No 3) Bill be now read for the first time.

The purpose of this Bill is to ensure that the Misuse of Drugs legislation is better able to meet its objective – to prevent the misuse of drugs.

The Misuse of Drugs Act has two key parts. First, the Misuse of Drugs Act 1975 or the Principal Act, which comes under my responsibility as Associate Health Minister.

The second part, the Misuse of Drugs Amendment Act 1978, comes under the responsibility of my colleague, the Hon. Phil Goff, the Minister of Justice.

The Bill will make several key changes to the Principal Act to make it more responsive to changes in illicit drug trends in New Zealand. These changes are:

Moving presumption of supply matters from the provisions of the Principal Act to its schedules, so they can be altered more quickly and flexibly by Order in Council; Setting the presumption of supply amount for methamphetamine at five grams, rather than the current default amount of 56 grams; and Expanding the membership of the Expert Advisory Committee on Drugs to include a Ministry of Justice official.

The principal Act currently provides for a rebuttal presumption that when a person is found with a certain amount of a controlled drug, he or she possesses that drug for the purpose of dealing or supplying it.

The onus is on the person found with the drug to prove that she or he was not supplying the drug and that the drug was intended for personal use. This presumption is referred to as the presumption of supply.

Section 6 subsection (6) currently provides a presumption of supply that is set at the amount of 56 grams for all controlled drugs, except those that have a specific presumption of supply amount listed in that subsection.

This situation gives rise to difficulties as the principal Act must be amended every time there is a decision to set or alter a specific presumption of supply for a particular controlled drug.

This process can result in unnecessarily long delays.

The principal Act will be amended to move presumption of supply matters to its schedules, so they can be set or altered through Order in Council.

This amendment will allow for a more efficient process than passing a new Act of Parliament, but it will still allow for scrutiny by the Health Select Committee and the House, as well as provide for public consultation.

The Expert Advisory Committee on Drugs recently recommended that the presumption of supply amount for methamphetamine should be set at five grams. Accordingly, the new presumption of supply schedule will set this amount for methamphetamine.

In addition, the Expert Advisory Committee on Drugs is to be expanded to include the expertise of a Ministry of Justice official.

Changes are also proposed to respond to concerns that the enforcement provisions dealing with precursor substances are inadequate.

Concern has centred on ephedrine and pseudoephredrine, which are key precursor substances used in the illicit manufacture of methamphetamine.

Currently, there is no offence relating to the import or export of precursors for the manufacture of illicit drugs.

In a border situation, only charges for the offence of possessing a precursor can be laid.

However, possession is impossible to prove in cargo and mail interceptions as no person has physical possession or control of the substance.

The Labour Progressive government has therefore, created two new offences.

The first will enable Customs officers to seize and detain precursor substances imported into New Zealand or exported from New Zealand with the knowledge that they would be used to commit an offence by producing or manufacturing any controlled drug with a maximum penalty of 7 years’ imprisonment.

The second offence will enable Customs officers to seize and detain precursor substances imported into New Zealand or exported from New Zealand without reasonable excuse, with a maximum penalty of 1 year’s imprisonment.

At present, the power to detain, search and seize without warrant is restricted to Classes A, B1 and C1 controlled drugs.

The government has also agreed that the principal Act be amended to:

create a new Part 3 of Schedule 4 and extend powers in section 18 subsections (2) and (3) to enter, detain, search and seize without warrant to precursor substances in the new Part 3 of Schedule 4; and list ephedrine and pseudoephedrine in the new Part 3 of Schedule 4.

Therefore this Bill will extend the powers of search and seizure without warrant to ephedrine and pseudoephedrine, allowing Police to respond quickly when investigating large purchases of pharmacy-only pseudophedrine medication to pass on to illicit manufacturers of methamphetamine.

The last set of changes to the principal Act relates to the offence of possessing needles or syringes.

Under the Health (Needles & Syringes) regulations of 1987, there is a legal defence to the charge of possession of a needle or syringe if the injecting drug user can show the needle and syringe was obtained through the Needle and Syringe Exchange Programme.

At present, the onus of proof in the defence lies with the defendant.

The Bill will amend the principal Act to move the defence to the offence of possessing a needle or syringe from the regulations into the principal Act, and to reverse the onus of proof to the prosecution to prove that the needle and syringe was not obtained through the exchange programme.

The second part of the Misuse of Drugs Act is the Misuse of Drugs Amendment Act 1978.

The changes to the second part of Act are intended to provide New Zealand’s law enforcement agencies, namely Customs and Police, with powers that enable them to more effectively detect the presence of controlled drugs and take appropriate action. The main changes will be:

that the provisions in the second part of the Act that relate to controlled deliveries will be extended to include precursor substances that Customs officers and members of the police will be able to conduct personal searches without a warrant during any controlled delivery that law enforcement agencies in New Zealand will be able to facilitate international controlled deliveries without the prospect of the liability of the importer and exporter of the illegal substances being affected by the law enforcement agencies’ involvement that Customs officers and members of the police will be provided with the power to personally search persons held under the internal concealment provisions of the second part of the Act.

There is one further issue related to this Bill, to which I wish to draw your attention.

In March 2004, the Expert Advisory Committee on Drugs recommended the creation of a new schedule for the Misuse of Drugs Act.

The purpose of the new schedule is to enable some regulation for legal substances which are subject to abuse but do not warrant, on available evidence, regulation under the current risk Classes A, B or C drug classifications.

An example of such a substance is the "legal high” BZP.

The regulation proposed will allow restrictions to be placed on such matters as legal age of purchase, retail, supply, marketing or labelling in relation to substances in the new schedule.

Such a schedule would not be confined to substances like BZP but would also provide another strategy in the spectrum of measures to reduce the harm associated with volatile substance abuse, which includes solvent abuse.

The Misuse of Drugs Amendment (No 3) Bill provides an opportunity to put this new schedule in place now. It is the Labour Progressive government’s intention to introduce a Supplementary Order Paper providing for such a new schedule in time for it to be considered with the Bill by the select committee.

It is proposed to refer the Misuse of Drugs Amendment (No 3) Bill to the Health Select Committee for consideration. The Labour Progressive government is anxious that this important Bill be passed this year if possible, and therefore I propose that the Health Select Committee endeavour to make its final report to the House on the Bill by the end of November to enable this to happen.

ENDS

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