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Dunne: next Government will overhaul Misuse of Drugs Act

Thursday, 8 September 2011

Dunne: next Government will overhaul Misuse of Drugs Act

The near 40-year-old Misuse of Drugs Act will be overhauled and replaced and legislation developed to create a new regime for currently unregulated psychoactive substances, Associate Health Minister Peter Dunne said today in delivering the Government’s official response to the Law Commission’s report on the Act.

The Law Commission report, Controlling and Regulating Drugs: a Review of the Misuse of Drugs Act 1975, was delivered in May and the Government has since been considering its findings and recommendations.

In tabling the Government’s response in Parliament today, Mr Dunne said that along with a fundamental overhaul of the Misuse of Drugs Act it was “clearly unacceptable that psychoactive substances can be sold without regulatory controls or any assessment of their potential harm”.

The Government has already taken all synthetic cannabinoids such as Kronic off the market through temporary class drug notices, and will deliver a permanent legislative solution next year, he said.

“The legislation we will bring in will reverse the onus of proof so anyone wishing to sell these products would need to prove they are safe,” he said.

Mr Dunne said that as well as wider legislation to replace the existing Misuse of Drugs Act, further policy work was still required on a number of the Law Commission’s 144 recommendations before detailed legislative proposals would be presented to Parliament.

“These are big issues; they are complex and have consequences and a long term impact and that impact actually plays out in peoples’ lives with issues like drugs, so it is important that we take the time to get it right and do not rush things,” he said.

“It is clear to the Government that the Misuse of Drugs Act needs updating and we are in agreement with the Law Commission on that.

“The current Act was developed nearly 40 years ago at a time when drugs and their use were very different than they are today and the argument for a substantive update is clear and compelling

Mr Dunne said it is unlikely that all the Law Commission’s recommendations would find their way into Government policy or law.

“Officials are evaluating all the recommendations and will advise the next government on how best to incorporate some of the key into a new Act to be considered by the incoming Parliament,” he said.

Among the more controversial Law Commission recommendations in its May report was that clinical trials be conducted into the medical use of leaf cannabis.

“We are not going with that recommendation. It is the Government’s view that is not its role to initiate clinical trials on cannabis leaf or any other product or substance.

“If the active ingredient of cannabis is seen as essential or beneficial for pain relief there are already pharmaceutical forms of it available that provide measured doses and quality control,” he said.

Mr Dunne said that the Law Commission’s recommendations that specialist drug courts be established was being progressed separately by Justice Minister Simon Power

The regulatory impact statement can be found at and at

Questions and Answers:
What is the current system for drug control?

The Misuse of Drugs Act 1975 is the legislative mechanism for banning or restricting harmful drugs. The Act lists controlled drugs in three schedules (Class A, B, or C – in terms of the degree of harm) and these drugs are prohibited unless expressly authorised for legitimate use. The Act also schedules precursor substances (substances which are used in the manufacture of controlled drugs) which may not be imported or exported without reasonable excuse.
Other features of the Act include: the presumption for supply of controlled drugs for possession over a certain amount, the banning of drug utensils (except for needles and syringes obtained through an authorised provider), and defining substances with similar chemical structure (analogues) as Class C drugs.
An amendment to the Act in 2005 established a restricted substances regime. Restricted substances are substances which have a low risk of harm. They are may be legally sold but, like alcohol and tobacco, have restrictions placed around their marketing and availability. There are no restricted substances currently scheduled.

Why create a separate regime for psychoactive substances alongside the Misuse of Drugs Act?
Unlike the system in place for foods, alcohol, medicines and hazardous substances, there is no legislative mechanism to control psychoactive substances before they reach the market. Currently the Government must identify that a substance is being sold and collate a significant amount of information on the substance before being able to place any restrictions on it. The Government has introduced interim measures to respond with urgency to substances such as the cannabinomimetic products. This has provided for potentially harmful products to be removed from the market. However the new regime will provide an enduring mechanism to prevent any psychoactive substance from entering the legal market unless it has been rigorously assessed and demonstrated not to pose an undue risk to the consumer.

What is the background to the Law Commission’s involvement in this issue?
In July 2007, the Government invited the Law Commission to review the Misuse of Drugs Act 1975.
The Law Commission carried out a first principles review with a mandate to make proposals for a new legislative regime consistent with New Zealand’s international obligations under the United Nations drug conventions and taking account of a range of issues and concerns about the Act.
Concerns included:
o the need to rationalise and consolidate the three different parts of the Act and for it to be consistent with other legislation,
o to ensure that penalties under the act were proportionate,
o to review the affirmative resolution procedure for scheduling controlled drugs,
o the need for a review of the criteria for classification of substances,
o the constitutionality of the presumption for supply provisions,
o concerns that sponsors of new psychoactive substances were not required to establish the safety of such products before they could be legally sold.
In February last year, the Law Commission published an Issues Paper providing a detailed discussion of the problems with the current legislation and proposing options to address these problems. The Law Commission conducted targeted and public consultation and received 3800 submissions on the Issues Paper. On 3 May this year, the final report of the Law Commission was tabled in the House.

What matters are still under consideration?
The following issues will be analysed before proposals for a new Misuse of Drugs Act are put forward:
a) Classification of controlled drugs including recommendations relating to establishing a new expert committee, abolishing the current sub-schedules in the “ABC” system, developing new schedules for precursor substances, and abolishing the Order in Council provision.
b) Offences and penalties including possession and supply provisions.
c) Interaction with other legislation including the Medicines Act 1981, ministerial powers, and regulations made under the Misuse of Drugs Act.

What mechanisms are currently available for dealing with new psychoactive substances?
The current mechanisms for dealing with these substances are:
a) The Smoke-free Environments Act 1990 prohibits the sale of herbal smoking products, such as herbal products containing synthetic cannabinomimetic substances, to people aged under 18.
b) The analogue provisions of the Act state that substances which are structurally similar to controlled drugs are analogues of these drugs and automatically classified as Class C controlled drugs by default.
c) If the Expert Advisory Committee on Drugs assesses a substance as having a moderate or higher level of harm then it can be prohibited as a controlled drug.
d) If the Expert Advisory Committee on Drugs assesses a substance as having a low risk of harm it can be restricted under the Misuse of Drugs Amendment Act 2005 as a restricted substance.
e) The temporary class drug notices introduced by the Misuse of Drugs Amendment Act 2011 provide a mechanism for prohibiting the importation, manufacture, sale and supply of substances listed by a notice in the Gazette. Sixteen synthetic cannabinomimetic substances have been listed since the provision came into effect in August 2011.

Why have the existing tools for dealing with uncontrolled psychoactive substances not provided an adequate response to the market for “legal highs”?

Over the last ten years, there has been a burgeoning market in “legal highs” which are psychoactive substances not scheduled as controlled drugs in the Act.
The Law Commission raised concerns about the reactive nature of drug control in that new psychoactive substances can be manufactured, imported and sold with minimal restriction until they are proven to be harmful and classified as prohibited drugs or scheduled as restricted substances.

There is a delay from identifying a new substance, acquiring and collating evidence of harm and finally scheduling drugs under the Act. The Law Commission considered that in this period potentially harmful substances could be marketed and sold.

The Law Commission identifies two inter-related problems with the status quo. Firstly, potentially harmful psychoactive substances are available with little or no control over their ingredients, dose, place of sale and purchase age. Secondly, the onus is on the Government to identify that these substances are available, and then to determine whether they are harmful before placing restrictions upon them.

Will the new regime involve legislation separate to the Misuse of Drugs Act?
The legislative details of the new regime are yet to be worked through. It is likely that the new regime will be enacted as either an amendment to the Misuse of Drugs Act 1975 or as stand alone legislation.

What is happening about drug courts?
Justice Minister Simon Power is working on this issue separately.


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