The Misuse of Drugs Amendment Bill 119-3 has passed through Parliament and will come into force the day after it receives the Royal assent. [Update: Assent was on 12 August 2019, so in force from 13 August.]
Of particular interest is its addition of two subsections, (5) and (6), to s 7 of the Misuse of Drugs Act 1975.
The new subsections apply only to offences against s 7(1)(a): unlawfully procuring or having in possession, or consuming, smoking, or otherwise using, any controlled drug.
These offences carry maximum penalties of imprisonment for six months if a Class A drug is involved, or for three months in any other case.
The new subsections are:
(5) To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a), and a prosecution should not be brought unless it is required in the public interest.
(6) When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial to the public interest.
These have been publicly taken to be effective decriminalisation, or at least that was said about them before the last four words were added to (6).
The decision to prosecute is described as discretionary. This is important in legal terms because discretions are treated differently by courts from exercises of judgement. See Stanley v New Zealand Law Society [2019] NZCA 119 at [21], referring to Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308.
What the public interest means is not elaborated by the setting out of examples of relevant considerations. It is acknowledged that there can be “other relevant matters”, and the new matter to consider is “whether a health-centred or therapeutic approach would be more beneficial to the public interest.” Obviously, the health-centred and the therapeutic approaches are not intended to be competing considerations, but they are to be taken together. Apparently, when they are available they weigh against prosecution.
The legislation does not refer to the Solicitor-General’s Prosecution Guidelines, but these are expected to be followed by the police. The Guidelines refer to the “decision” to prosecute, but also to a “discretion as to whether a prosecution is required in the public interest” ([5.2], [5.5]). Guideline [5.7] sets out the presumption in favour of prosecution, and [5.7]-[5.8] give illustrations of what matters can be considered in weighing up the public interest. The approach is individualistic: each case is to be considered in the light of its own circumstances.
Guideline [5.9.13] refers to whether there are any proper available alternatives to prosecution. Perhaps the new subsections come into play here: did Parliament intend to make an addition to the Guidelines, without actually referring to them, or did it intend to give special weight, separately from the Guidelines, to the consideration of a health-centred or therapeutic approach? Section 7(6) uses the phrase “in addition to any other relevant matters”, but this doesn’t answer the question, and it is not necessarily giving dominance to whether the health-centred or therapeutic approach would be more beneficial to the public interest than would prosecution.
It was this issue which was contentious in Parliament. The National Party in opposition took the view that this was de facto decriminalisation, because even where the public interest in proceeding with a prosecution has (in other respects) been met a prosecution would not proceed if a therapeutic approach would be more beneficial. That is, the presumption would move from favouring prosecution to favouring non-prosecution. The Police Association, the New Zealand Drug Foundation, and the New Zealand Law Society all had the same understanding (see the Report of the Health Committee on the Bill 119-2, the National Party members’ view).
The point has not been clarified in legislation. Is the health-centred or therapeutic approach to the public interest dominant, or is it just a factor in the decision whether a prosecution is in the public interest? The words of the subsections do not suggest dominance, but the fact that this approach has been singled out for statutory mention could. The majority of the Health Committee simply said that the discretion “allows the Police to consider a health-based approach in place of a punitive one when appropriate.” This too does not suggest dominance, but the expression “when appropriate” does shroud the decision process in mystery.
Judicial scrutiny of the discretion could require consideration of complex issues. People charged with offences against s 7(1)(a) are likely to want to challenge the exercise of the discretion to prosecute in their own particular circumstances. There could be a flood of applications to the High Court to review the exercise of such discretions, although the risk of cost sanctions may deter all but the wealthy few, raising in turn issues of equal access to justice.
The practical requirement to accept a therapeutic approach may undermine the right to refuse to undergo medical treatment - New Zealand Bill of Rights Act 1990, (BORA) s 11, although this might be a justified limitation on the right, s 5. This issue was not covered in the advice to the Attorney-General on compliance of the Bill with BORA. There have been indications that it is only in cases of addiction that the health-centred or therapeutic approach will be relevant, the Minister noted in this context that “Fear of prosecution can deter people from seeking help to deal with addiction issues.”
There is, therefore, good reason to think that the discretion not to prosecute will only be exercised in relation to people who, in the opinion of the police, need medical help with addiction. This seems to be the intent behind an amendment to the Bill at a late stage which put the focus on benefit “to the public interest” (subsection (6) above), instead of, as previously worded, just "beneficial" without saying to whom. The change has been taken as swinging the pendulum back towards the status quo. My own view, at this stage, is that this is correct, and that the mystery brought to attention by the Health Committee’s majority’s words “when appropriate” disappears if they mean “in cases of addiction.” So if it's not effectively decriminalisation, which is what bothered the National Party, why did its MPs vote against the Bill? Apparently, because these provisions seemed to add nothing to current practice, and were too vague (although the National Party would have supported other aspects of the Bill). Looking at the third reading debate, you can see how confused the politicians were over what they were voting for or against.
People on the way to addiction or to the other adverse effects of drug use could also benefit from a health-centred or therapeutic approach, so decisions may have to be made as to whether these people should be prosecuted and then given the opportunity of diversion, or whether there should be no prosecution so that an approach like that taken with addicts can be tried. In some areas of the country, currently Waitakere, Auckland and Christchurch, specialist therapeutic sittings of the District Court, known as the Alcohol and Other Drug Treatment Court, are available where prosecution has been commenced, so this will be relevant to deciding whether prosecution is in the public interest in those cases.
