The NZ Psychoactive Substances Act 2013 (PSA2013) was never world leading drug reform as frequently claimed by some drug reformers and re-asserted in an article by one of the Act’s key flag bearers. It was however, world leading drug legislation, that succeeded in gaining almost unanimous support across New Zealand Parliament (apart from one MP), because this new drug law extended prohibition to include a ban on every new psychoactive substance 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), may sound strangely 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 unapproved outlawed drugs listed under the Misuse of Drugs Act, except the PSA provides a blanket ban on personal possession of every psychoactive drug, unless specifically approved. Whereas the MDA provides a blanket acceptance of substances unless specifically named and banned.
The key problem with the PSA2013 is it’s like an illusion. The Act can be whatever you want it to be, it depends upon how you tell it, what you tell, and what you omit. To prohibitionists, it was sold as offering an end to the legal high ‘cat n mouse’ game, by introducing a once-and-for-all blanket ban on all NPS currently legally sold. The Act removed these legal highs from open circulation and prevented them being sold in corner shops. Of course, this didn’t remove the drugs from circulation it simply pushed circulation and distribution underground.
By extending prohibition to 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 drugs a punishable offence (s.71), it introduced new police powers to enter premises without a warrant (s.77), and introduced a two year prison sentence for anyone supplying an ‘unapproved’ psychoactive drugs (s.70). Issues I highlighted in writing and in an oral presentation to the Health Select Committee.
To drug reformers these disconcerting aspects of the PSA are frequently airbrushed out of the story. Instead, to the drug reforming community, the PSA was sold as offering ‘world-leading’ drug reform, an exciting framework to regulate new psychoactive substances (that the same law made illegal), – provided these new substances could be demonstrated to be low risk. But it was always unclear what exactly constitutes a ‘psychoactive’ substance, who defines it, 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 new punishments for possession of these drugs, while also offering the olive branch 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 bad laws are hard to change. The problem with our New Zealand PSA 2013 is, it was from the outset, a compromised pig in a poke. Unfortunately, proponents had little time or interest for considering the risks in blending prohibitionist agendas with drug reform aspirations. It seemed the intoxication of showcasing world leading reform was too great to be worrying over the detail. Maybe drug reform proponents 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 create a momentum? Whatever the misguided motivation, we are sadly left with an Act that has ultimately extended prohibition and widened the scope of the drug wars. I’m sure reformers didn’t intend this.
So the real lessons from here in New Zealand are: don’t get high on drug reform; think critically about what is being proposed; be willing to ask the tough critical questions; and don’t be tempted to form an alliance with prohibitionists on some shared pseudo agenda, simply to get 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, we now have two bad drug laws: the Misuse of Drug Act 1975; and the Psychoactive Substances Act 2013 which has effectively extended the net of prohibition.
Julian Buchanan is Associate Professor of Criminology at the Institute of Criminology, Victoria University of Wellington, Kelburn Campus, Wellington, 6140 Aotearoa New Zealand