Police appear to have made a concerted effort to charge fewer drug users and to close the gap in their treatment of Māori in the months since the election.
Frontline officers also appear to be offering more health referrals, though the proportion of those engaging with health services remains less than 3 per cent of all those who face drug use/possession charges as their most serious offence.
This follows a message from Health Minister Andrew Little after the cannabis referendum that people should almost automatically not be charged but given a health referral if their most serious offence was drug use/possession.
New police data released to the Herald under the Official Information Act shows how police have used their discretion from November last year to February this year.
Of those facing the possibility of being charged with drug use/possession as their most serious offence, fewer than one in five people - or 18 per cent - was charged.
The proportion with respect to cannabis dropped to one in 10 people, while more than half (54 per cent) were charged for methamphetamine.
Police also appear to be making more of an effort to treat Māori and non-Māori the same, though they are still more likely to be charged; 22 per cent of Māori were charged overall, while 12 per cent of Māori were charged for cannabis and 56 per cent were charged with having methamphetamine.
Frontline officers were already trending towards charging fewer people before the election, but in recent months they also appear to be encountering fewer people with drugs.
Both of these factors contributed to far fewer people being charged - 56 people a month - in recent months with drug use/possession as their most serious offence. Before a key change to drug laws in August 2019, it was about 130 people a month.
These trends in police data are similar to those in Ministry of Justice data, which showed 580 convictions for drug use/possession only in 2020 - a 37 per cent reduction compared to the 920 convictions in 2018.
The Herald has been tracking police use of discretion following the law change, which clarified that police shouldn't prosecute for drug use if a therapeutic approach would be "more beneficial to the public interest".
Proponents of drug law reform championed it as a "watershed" moment that would lead to default decriminalisation, but concerns remained over whether codifying discretion - along with police bias - would hurt Māori.
People are often charged with drug use/possession along with other offences, so a better picture of the use of discretion is captured when that is the most serious offence - which includes when it is the only offence.
Police can either charge the person, give them a warning, or give them an alternative measure such as Youth Aid referrals, family group conferences, alternative action plans, community justice panels or no further action.
• For the 12 months before the law change, a third of people were charged, 58 per cent were given a warning, and 9 per cent were given an alternative measure.
• For Māori, these figures were 37 per cent charged, 54 per cent warned, and 9 per cent given alternative measures.
• For the 15 months after the law change, police lowered the charge rate: 24 per cent of people were charged (28 per cent of Māori), 65 per cent were warned (61 per cent of Māori), and 11 per cent overall and for Māori were given an alternative measure.
• In the four months following the election, 20 per cent of people were charged (22 per cent of Māori), 74 per cent were warned (71 per cent of Māori), and 6 per cent were given alternative measures (7 per cent of Māori).
The proportion of people being charged for methamphetamine and cannabis has fallen significantly.
Before the law change, well over 80 per cent of those caught with methamphetamine were charged, but in recent months it has dropped to closer to 50 per cent.
Charges for cannabis use/possession has roughly halved from about 20 per cent before the law change to 10 per cent in recent months.
The number of health referrals given by police has also trended up in recent months.
When the law change came in, up to one in six people were offered one, but this fell away over last year's national lockdown months to as low as one in 14 people.
It has risen again in recent months, and was as high as one in seven people in December 2020.
Health referral uptake is to do with more than just police behaviour; drug users can refuse a referral if offered one, and many don't have health issues, a point reinforced in the expert panel into cannabis led by Dr Juliet Gerrard.
For the first year the law change was in effect, 1.3 people out of every 100 facing the possibility of charges engaged with an alcohol and drug helpline.
That proportion doubled to 2.6 people out of every 100 for the months from November 2020 to February 2021.
Police said in a statement that the number of health referrals was "encouraging".
Police did not respond to questions about whether there had been any formal change to how officers applied discretion, or why the number of people facing potential charges had dropped off so much after the election.
Different political messages
The new data coincides with the four months following the October election, when a referendum on legalising cannabis for personal use was also held. The status quo to keep personal cannabis use illegal won by a narrow margin.
In the aftermath, Ardern said the Government would see if the 2019 law change was doing what was intended.
Little - who was Justice Minister last parliamentary term - added that people facing a charge of drug use/possession should almost always not be charged if that was their most serious offence.
This was a starkly different political message to when the law change was passed, when Ardern said it would simply codify into law what police already did in practice.
Police Association president Chris Cahill has previously noted the different messages from ministers, which, along with the close referendum result on cannabis, left police understandably confused about how discretion should be applied.
Drug Foundation executive director Sarah Helm said it was positive to see the gap shrink for how police use their discretion on Māori and non-Māori, and to see fewer people being charged.
"The statistics are going in the right direction, but far too slowly. We don't think anyone should be prosecuted for possession," she said.
"We can celebrate each reduction, and we do, but the only way to fix the problem is really to fix the framework – overhaul the Misuse of Drugs Act, take drug possession out of a criminal justice framework and give people certainty about what the law actually is."
Last month a coalition of more than 25 health and social service organisations from both sides of the cannabis legalisation debate called on the Government to review and update drug laws.
Ardern and Little said a review was not on the Government's agenda, and instead a review of the 2019 law change was taking place to see if it was having the intended impact.
That review is expected to report back to the Government in August this year.