The New Zealand Psychoactive Substances Act 2013 (PSA 2013) was never world leading drug reform, as frequently claimed by drug reformers at the time and re-asserted in an article by one of the Act’s key flag bearers.
It was however, ground breaking drug legislation, that succeeded in gaining unanimous support across New Zealand Parliament (apart from one independent MP), because this new drug law expanded prohibition to include every new psychoactive substance (NPS) not currently incorporated within the Misuse of Drugs Act.
If the concept of the PSA2013 to make drugs illegal (unapproved NPS), punish personal possession and supply, while privileging other selected drugs (approved NPS), sounds familiar, it is, it’s called prohibition. It mirrors what has been happening for decades with approved legal drugs (alcohol, tobacco, caffeine and pharmaceuticals) and outlawed drugs listed under the 1975 Misuse of Drugs Act, except it provides a blanket ban (unless specifically approved), rather than a blanket acceptance (unless specifically banned).
This prohibitionist masterstroke was hardly surprising, coming from a government that has invested heavily in Drug Abstinence Courts, rolled out drug testing for anyone claiming unemployment benefits, refused take home naloxone, criminalised self medication with cannabis and operates a mass police operation to destroy cannabis crops in rural areas. What was surprising, however, was how the global reform movement heralded New Zealand’s approach.
The key problem with the PSA2013 is its slippery nature. The Act can be whatever you want it to be – it all depends on how you tell it, what you tell, and what you omit.
To prohibitionists, it was sold as a robust end to the ‘cat and mouse’ game of legal highs, by introducing a once-and-for-all blanket ban on all psychoactive substances currently legal. The Act removed legal highs from circulation and prevented them from being sold in corner shops. Some NPS were temporarily allowed on restricted sale after the PSA2013, but were subsequently removed when the process for approval proved too demanding.
By expanding prohibition to include every new psychoactive substance, the PSA2013 makes all NPS’ in New Zealand illegal unless subsequently approved by the state. Worryingly, the PSA makes personal possession of any new psychoactive drug a punishable offence, it introduced new police powers to enter premises without a warrant, and a two year prison sentence for anyone supplying ‘unapproved’ psychoactive drugs. These are all issues I have highlighted in writing and in a presentation to the Health Select Committee.
To drug reformers, these disconcerting aspects of the PSA were frequently airbrushed out of the story. Instead, the PSA2013 was sold to the reform community as ‘world-leading’ drug reform: an exciting framework to regulate new psychoactive substances (that once legal the same legislation had made illegal), provided these new substances could be demonstrated to be low risk. But it was always unclear what exactly is a ‘psychoactive’ substance, what would be considered ‘low risk’, and would there ever be a political willingness to approve any new drug? What the PSA has effectively done is to outlaw those drugs that were legal, impose punishments for possession of these drugs, and offer the possibility that, if proved low risk, some of these drugs might possibly, one day, be approved for circulation.
The PSA 2013 is prohibition under the guise of reform. Instead of the tedious and expensive process of the government having to use the Misuse of Drugs Act, to ban each individual drug that comes on the market, the PSA has simply banned the lot, albeit with a slim backdoor possibility that some ‘low risk’ drugs might, one day, be accommodated. The Act delivered what the Associate Health Minister Peter Dunne always promised it would, when in July 2012 he declared :
We are winning the battle [against drugs] and we are about to deliver the knockout blow with this legislation
We know from difficult experience with the 40+ year old Misuse of Drugs Act, that prohibitive laws are hard to change positively, so the idea that the PSA was a work-in-progress, subject to amendment, was a dangerous notion to support. The problem with our New Zealand PSA2013 is, it was from the outset, a compromised pig in a poke.
Unfortunately, reformers had little interest in considering the risks in blending prohibitionist agendas with drug reform aspirations. It seemed the intoxication of promoting ‘world leading reform’ was too great to be worrying over getting the details right. Maybe reformers thought the most important goal was to send out a global message that countries are rolling out world leading drug reform, in an attempt to give the impression of a momentum?
Whatever the misguided motivation, here in New Zealand we are sadly left with an Act that has significantly widened the scope of prohibition, an Act that allows the state powers control, threaten and/or punish people for personal choices concerning what they choose to put in their own bodies. Surely reformers didn’t intend to support this?
So the real lessons from New Zealand are: don’t get high on drug reform; think critically about what is being proposed; be willing to ask the tough questions (especially of your allies); and don’t be tempted to form an alliance with prohibitionists on some shared pseudo-compromised-agenda simply to get any drug reform legislation passed.
If we have learned nothing else from the drug wars, it is that a non-negotiable principle in any reform, must be that personal possession of any substance must never be an offence. But our ‘world leading’ kiwi drug ‘reform’ has succeeded in outlawing personal possession of all new psychoactive drugs – even those not yet invented. Bad drug laws are hard to change, and here in New Zealand where harm reduction seems stuck in a 1980s time warp, we now have two bad drug laws, the MDA1975 and the PSA2013.
Julian Buchanan is a recently retired Associate Professor of Criminology at the Institute of Criminology, Victoria University of Wellington, New Zealand
A version of this article appeared originally on Julian Buchanan’s blog