The Government's response to the synthetic drugs crisis is to cripple the supply chain, such as these products caught at the border, but not to criminalise drug users. Photo / Supplied
The Government's response to the synthetic drugs crisis is to cripple the supply chain, such as these products caught at the border, but not to criminalise drug users. Photo / Supplied
The Government considered having absolutely no criminal penalties for users of synthetic drugs when pulling together its response to a crisis that has contributed to about 80 deaths in the past two years.
But the option was rejected because it could have created a perverse incentive for people to usesynthetics rather than pricier and less harmful drugs - such as cannabis - which can still be penalised with jail terms.
Instead the Government went for a clause about police discretion in the Misuse of Drugs Amendment Bill, which would classify AMB-FUBINACA and 5F-ADB - common components of synthetic drugs - as Class A substances, meaning up to lifetime imprisonment for supplying, importing or manufacturing them, or up to six months' jail for use/possession.
The police discretion clause has been described as decriminalisation because it would make prosecution for drug use/possession rare; police would not do so if a therapeutic approach would be more beneficial.
The bill is described by Ministry of Health officials as an interim and imperfect solution to the crisis of synthetic drugs, but a step in the right direction.
The two synthetic drug compounds were found to be of a much higher concentration in New Zealand samples than overseas, including AMB-FUBINACA concentrations up to four times higher than in New York in July 2016, during the so-called "zombie outbreak".
"Collapse is regarded as normal because it occurs often, and there is no perceived need to call for help," one Ministry of Health report from August last year said.
The National Party, the Law Society, the Police Association and the Drug Foundation have all described the police discretion clause as some form of decriminalisation of drug use, but government ministers have strongly denied this.
Prime Minister Jacinda Ardern and Health Minister David Clark have repeatedly said its response to the synthetic drug crisis is not to decriminalise drug use. Photo / Mark Mitchell
While the word "decriminalisation" is absent from hundreds of papers related to the bill that were released to the Herald under the Official Information Act, there are constant references to the Government's health approach to drug use and the intention not to criminalise drug users.
In line with this, agencies considered only having criminal penalties for supplying, manufacturing or importing AMB-FUBINACA and 5F-ADB, with no penalties for possession or use.
But this may have pushed people to making synthetic drugs their "drug of choice" over a drug with a criminal penalty for use/possession.
"There may also be a perception of a low health risk. As a result of this, user demand may shift from lower harm substances such as cannabis to synthetic drugs," a Cabinet paper about the bill said.
Another option, also rejected, was to keep drug possession and use as a criminal offence, but require sign-off from the Attorney-General to prosecute.
Cabinet eventually went with the police discretion option, noting that the risk of unfairly impacting Māori could be mitigated by current police programmes about unconscious bias.
Targeting dealers and not users was also a factor in setting the amount of drug that, if found by police, would lead to a presumption of supply.
The Expert Advisory Committee on Drugs initially recommended that the amount for the two compounds should be 28 grams, half of the default weight for illegal drugs.
But this was later axed, and even at the default weight of 56 grams, officials were concerned that this was too low and could potentially see heavy users charged as drug dealers.
Making it higher than 56 grams, though, would make it harder for police to cripple the supply chain, Treasury officials advised.
The bill is expected to have its second reading in Parliament as early as next week, having been reported back from the parliamentary health select committee without any substantive changes.
The committee, which is split between National MPs and MPs from governing parties, could not agree on whether the bill should be passed, with National calling it de facto decriminalisation of drug use.
"If this is the Government's intention, it should be upfront about that and include the public in that debate. For this reason the National Party cannot support this bill," National's comments in the select committee report said.
The bill is a Government bill and is expected to pass with the backing of the Labour, NZ First and Green parties.
