A law change that encourages greater police discretion over cannabis possession charges appears to have benefitted Pākehā the most with convictions dropping at a higher rate than any other ethnicity.
Drug decriminalisation advocates say the fact overall convictions for cannabis possession have more than halved since the 2019 law change is positive, but the ethnicity breakdown highlights how systemic racism still permeates the justice system.
Meanwhile, the Green Party claims that while more than 1000 people are still being convicted for possession each year it shows the law is out of sync with public opinion and repeated calls for decriminalisation.
New Zealand held a referendum at the 2020 election on whether to legalise the sale, use, possession, and production of recreational cannabis. The public, with a slim majority, voted not to legalise the drug.
The Herald analysed Ministry of Justice data before and after a 2019 discretion law change, described at the time as effectively decriminalisation of drug use, to assess its impact along with wider efforts to reduce the disproportionate effect the justice system has on Māori.
That law change codified police discretion into the law, and clarified that police shouldn’t prosecute for drug use if a therapeutic approach would be “more beneficial to the public interest”.
The Government’s aim at the time was to take a health and harm-reduction approach to drug use, rather than a criminal justice approach.
The data shows it has been effective, with the number of people convicted nearly halving in four years, from 2109 in 2018 to 1179 in 2022. This drop follows similar trends revealed by previous Herald reporting on police prosecutions.
But since that law change the effects on the number of convictions appear to vary when broken down by ethnicity, as has also been the case with prosecutions.
In 2018, Pākehā made up the highest proportion of people who received a criminal conviction where cannabis possession was their highest charge, at 53 per cent. At that time, 44 per cent of those who received the same type of conviction were Māori.
By 2022, this situation had reversed, with Māori making up 49 per cent of convictions while Pākehā dropped to 46 per cent.
Police, however, told the Herald there was no evidence to suggest Māori received a higher proportion of prosecutions when coming into contact with police than other ethnic groups.
The greatest drop in numbers was Pākehā, which more than halved from 1120 in 2018 to 548 in 2022. The number of Māori convicted fell at a lower rate of 38 per cent, from 930 people in 2018 to 578 in 2022.
According to the New Zealand Drug Foundation, which has also been analysing Ministry of Justice data for years, 2022 was the first time on their records that the total number of Māori convicted for cannabis possession surpassed Pākehā.
Calls for decriminalisation of drug possession
It is an offence under the Misuse of Drugs Act 1975 to use, possess, cultivate or traffic (deal) in illegal drugs, which include cannabis, a Class C drug. Cannabis possession carries a maximum penalty of three months’ jail or a fine of up to $500, or both.
To be convicted a person must possess for themselves a usable amount - up to 28 grams, which is the lower limit for a supply charge - and know what it is and that it is illegal.
A 2019 amendment affirmed the existing police discretion and specified in any prosecution “consideration should be given to whether a health approach is more beneficial”.
Green Party drug law reform spokeswoman Chlöe Swarbrick said while the drop in convictions was positive marginalised people, including Māori, were still disproportionately impacted.
Research showed people tended to consume substances, including alcohol, harmfully as self-medication when in difficult circumstances.
NZ Health Survey data showed Māori were about twice as likely as non-Māori to consume cannabis, but the maths which saw them make up approximately half of the convictions, given Māori are 17 per cent of the population, still didn’t add up, Swarbrick said.
“What we’re seeing is that when there is discretion, there’s room for discrimination.”
Swarbrick said it was “outrageous” more than 1000 people a year were being convicted.
The 2022 statistics also showed 182 people were imprisoned for cannabis possession as their highest charge, down from 302 in 2019, and two people were imprisoned where it was their only charge.
“These charges are not only ludicrous when you consider that 635,000 New Zealanders used cannabis last year, but the life-time barrier to accessing jobs, travel and opportunities – for something most of our politicians have readily admitted to doing ‘back in the mists of time’,” Swarbrick said.
Swarbrick said the Misuse of Drugs Act 1975 needed to be repealed and replaced and drug possession decriminalised, as has occurred in many places overseas, the latest being the Australian state of Canberra.
The Government has stated the 2020 referendum that voted against legalising cannabis with a slim majority of 50.7 per cent meant there was not public support for more reform, Swarbrick said that should not stop it from decriminalising possession with more resources put into health approaches.
New Zealand Drug Foundation executive director Sarah Helm said the latest data showed the discretion law had an initial positive impact but may have reached its limit.
Helm said 2022 was the first year in a long time to see an increase in convictions for cannabis possession, and the first the Drug Foundation was aware of where the number of Maori convicted for cannabis possession exceeded Pākehā.
“That shows very clearly that the law is being implemented unfairly. Unfortunately, we know that historically Māori haven’t fared well where there is room for the sort of discretion in which we’re seeing that here.”
Helm said she was also concerned about regional disparities which saw much higher conviction levels in Canterbury and Auckland compared to other parts of the country.
“We know most New Zealanders no longer support criminalising people for cannabis. We also know that the convictions don’t deter people from using.
“Convictions cause a huge amount of havoc in somebody’s life. It can be the difference between somebody having a job or being in education, and sending someone into a life of crime.”
Justice reform advocacy group JustSpeak executive director Aphiphany Forward-Taua said Māori were likely less impacted by the law change due to wider social and justice factors, from higher rates of poverty and homelessness to higher rates of prior criminal convictions, meaning they might be more likely to come into contact with police.
Police told the Herald the “age of the offender, their prior offending history, and the frequency and severity of an individual’s offending were the key drivers behind police decision to prosecute or otherwise”.
Forward-Taua said the Government needed to look more closely at what was contributing to more Māori being in those situations.
“It is certainly systemic and something we need to be continuously reviewing.”
Forward-Taua said decriminalisation needed to be a “starting point”.
“It is nonsensical we are still putting people in prison for cannabis possession when we can help them heal through a health response.”
Police say no evidence of discrimination
The Herald approached both Justice Minister Kiri Allan and Health Minister Ayesha Verrall, who is responsible for the Misuse of Drugs Act 1975, with questions about decriminalisation and if they thought the current discretion laws were operating as intended, but both declined to comment.
Police Minister Ginny Andersen said in a written statement the law change had seen a “significant decrease” in the number of prosecutions taken by police in relation to personal drug possession and use offences and a significant increase in alternative actions taken by police.
This included written and verbal warnings, referrals to youth and addiction services, and Te Pae Oranga Iwi Community Panels.
Andersen said Māori were overrepresented in the criminal justice system as a whole, and police continued work to understand where bias exists at a system level.
The Government has also invested significantly in funding to treat drug addiction as a health issue rather than a criminal one, she said.
A police spokeswoman said there was no evidence to suggest Māori received a higher proportion of prosecutions when coming into contact with police than other ethnic groups.
Police did not readily have current data available for cannabis possession prosecutions, but a 2021 report found people with drug possession/use offences following the 2019 law change were Pākehā at 46 per cent, followed by Māori at 37 per cent.
Māori are over-represented in these statistics as Māori comprise 17 per cent of the population.