Brian Rudman: Power chains us to dead-end drug laws

Justice Minister Simon Power has made it clear there is no chance drug laws will be relaxed while he is in charge. Photo / Mark Mitchell

Law reform is "the art of the possible" said the Law Commissioners, in explaining why they'd left themselves open to charges of being illogical and hypocritical in excluding alcohol and tobacco from their new review of recreational drugs laws.

Given the hysterical response from Justice Minister Simon Power to their 408-page, three-year long study, Sir Geoffrey Palmer and his fellow commissioners must be wondering if anything is possible under Mr Power.

It's hard to remember a major policy discussion document being so summarily and publicly rejected.

Through gritted teeth, the minister "welcomed" the report, then harrumphed: "I want to make to clear the Government will make no changes to the status quo."

If that wasn't plain enough, he then told journalists that while he would listen to submissions, "there's not a single, solitary chance that as long as I'm Minister of Justice, we'll be relaxing drug laws in New Zealand.

"The Prime Minister has made the war against P and drugs a key part of his leadership and as long as I'm the Minister of Justice, we will not be relaxing drug laws."

Ironically, former Labour Prime Minister Palmer and his law commissioner colleagues use the anti-nanny state argument - that Mr Power and his party so frequently trot out - to back their argument for a change of approach in how we deal with the personal use of drugs.

Going back to basics, they argue: "There is no clear community view that use of mind-altering substances is immoral.

"Many of us will have drunk alcohol in the recent past, itself a mind-altering substance, without feeling morally compromised. Most of us also recognise ... that using these substances can bring benefits ... such as increased sociability and relaxation."

They argue that drug regulation in itself undermines values that are "important to our social fabric ... for example, the ability for individuals to exercise freedom of choice and personal autonomy."

They support a "paternalistic approach" only as far as researching the safety of drugs, and protecting the young and the mentally impaired is a concern. Then, they draw a line.

"If someone, fully aware of the risks involved, chooses to participate in an activity that risks causing harm only to themselves, most of us would respect the right to make that choice, even if we consider the choice to be wrong or misguided."

They do support regulation when drug use "harms other people", however, "heavy-handed regulation to prevent a very small harm is not justified as a matter of principle and risks being counter-productive."

Instead of dismissing the report out of hand, Mr Power needs to face up to the questions the report raises about the effectiveness of the worldwide, 40-year war on recreational drugs.

The commissioners quote International Drug Policy Consortium findings that there has been "increasing rates of drug use in almost every country" over this time.

They argue "the key question" is that since illegal drugs cause considerable harm, as does alcohol, "what approach will most effectively mitigate that harm?"

They argue that while heavy penalties should continue to apply to large-scale commercial drug dealing, "there may be a case for taking more flexible approaches to offences involving possession of small quantities of drugs for personal use".

The report raises the question of whether the harm caused by prohibition outweighs the harm caused by drug use itself.

"Prohibition may inhibit users from accessing treatment for addiction or dependence due to fear of arrest or persecution.

"Prohibition can also make public education about safe use of drugs difficult, not only because this seems inconsistent with the overall aims of prohibition, but also because prohibition makes it more difficult to identify and access target groups."

Prohibition also brings its own costs: "The development of a criminal black market in a prohibited drug ... the impact on a drug user of a criminal conviction and the cost to the state of enforcing drug prohibition are costs and harms of drug prohibition, not drug use."

The commissioners also acknowledge the benefits that may arise from illegal drug use. "These benefits may include the pleasurable effects of an altered state of consciousness (ranging from increased relaxation to increased energy), better social bonding with peers or an escape from the realities of everyday life.

"Many of these benefits have parallels with the social benefits of alcohol."

On the downside are the huge costs of trying to police the $190 million (2001 estimate) cannabis black market. In 2005-06, cannabis drug enforcement costs alone were $116.2 million, including 333,684 hours of police time.

Whether this includes court and various legal costs is not stated. In 2008, there were 9504 cannabis convictions - 76 per cent of all drug convictions.

The commissioners note that convictions for possession of even a small amount of cannabis can have consequences disproportionate to the harm caused, such as difficulties in obtaining employment, accommodation or when travelling overseas in later life.

For all Mr Power's moral outrage, recreational drug use is widespread and accepted by most New Zealanders.

In a 2008 survey, 95 per cent of adults had used alcohol sometime in their lives, 46.5 per cent had smoked cannabis, 13.5 per cent taken BZP pills, 7.3 per cent tripped on LSD, 7.2 per cent tried amphetamines and 6.3 per cent drunk kava.

In the previous 12 months, 85 per cent admitted to using alcohol, 23 per cent tobacco, 14.6 per cent cannabis, 5.6 per cent BZP and 2.6 per cent Ecstasy.

The commissioners conclude that regardless of the legal penalties, "the portion of the population using drugs is not really changing". The only change is that drugs seem to go in and out of fashion.

In other words, regardless of the tough talking of Nanny Simon and his anti-drug crusading allies, the punitive approach of the past 40 years has not been very successful.

All the commissioners are proposing is that we consider concentrating the state's efforts on reducing "harm" rather than "simply punishing drug users". The full report is at www.lawcom.govt.nz.

Mr Power may have flushed his copy down the Beehive sewer, but that's no reason the rest of the country should not have an intelligent debate.