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Rushed amendments to the Misuse of Drugs Act should raise concerns

01 May 2019

A bill making important changes to the Misuse of Drugs Act raises significant concerns and is being rushed through the legislative process without adequate evidence and analysis, the New Zealand Law Society says.

The Law Society has presented its submission on the Misuse of Drugs Amendment Bill to Parliament’s Health select committee. The Society submitted that the rushed process for development and scrutiny of the bill created the risk of poor quality legislation.

The Law Society pointed to a number of concerns about the bill. It noted that a complete rewrite of the Misuse of Drugs Act had been recommended by the Law Commission in 2011, but this has not yet eventuated. The Law Society asked that the select committee’s report to Parliament underscore the need for a systematic and comprehensive reform of the legislative framework for responding to drug use.

“This bill is not a substitute for long overdue and wider reform, nor is it a significant step along the path to wider reforms,” Law Society spokesperson Chris Macklin told the select committee.

The Law Society also questioned whether the bill could be considered consistent with the right to be presumed innocent until proven guilty, a right affirmed by the New Zealand Bill of Rights Act 1990.

A new power to temporarily classify new substances as Class C controlled drugs is subject to the Act’s default presumption that quantities of 56 grams or more are for the purpose of supply rather than for personal use. This transfers the burden onto the defendant of disproving that presumption.

“That is a significant burden, and the Ministry of Justice’s view that it is consistent with the Bill of Rights requires closer examination,” Mr Macklin told the select committee.

“Similar amendments in the past have resulted in Attorney-General reports to Parliament that reliance on default quantities to establish a presumption of supply were inconsistent with the right to be presumed innocent. The ministry’s view is difficult to reconcile with these reports. It is also difficult to reconcile with case law,” Mr Macklin said.

“The Supreme Court has considered the issue of presumption of possession of drugs for supply. The Court said that presumption might be justified in terms of the Bill of Rights if the quantity is set so high that the purpose of supply is a ‘near certainty’, to reduce or avoid the risk of wrongful convictions”.  

The Ministry of Justice concluded that 56 grams “would represent a significant amount unlikely to be held for solely personal use”, but this was directly contrary to the Ministry of Health’s conclusion in the Regulatory Impact Assessment that “56 grams is about a month’s worth for an average dependent user, or a few days’ worth for some heavy users.”

The Law Society has recommended that the select committee seeks further advice about the evidence base for relying on the default quantity of 56 grams to justify the presumption of supply.

“The committee may also want to seek advice from officials about alternative approaches that might achieve the objective of the bill without limiting the right to be presumed innocent more than is reasonably necessary”, Mr Macklin said.

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Last updated on the 1st May 2019