 Australia has just passed the laws needed to allow medical cannabis to be grown and distributed. Once that starts happening, New Zealanders will be able to go across the ditch to get it - and then legally bring it back here. The whole issue of medical cannabis's (non)-availability in New Zealand has been highlighted by the case of first Helen Kelly and now claims in The Guardian that towards the end of his illness Martin Crowe was "self-medicating with liquid cannabis and sleeping 15 hours a day". It's a topic that Russell Brown has covered far better than I could in a Vice article, so go read that as background and then come back here. Because a recent court decision has thrown light on a small subsection of the Misuse of Drugs Act 1975 that could well blow a quite substantial hole in New Zealand's current virtually prohibitionist policy. As reported on RNZ's Nine-to-Noon the case involved an American woman residing in NZ who while back in California was prescribed medical cannabis (which is a legal treatment in that jurisdiction) to treat the symptoms of her chronic pain syndrome. She then purchased medical cannabis products (using the prescription she had been given) and posted them to herself back in NZ before traveling home to Golden Bay. However, Customs detected the products in the mail and she was arrested and charged with possessing cannabis and (much more seriously) importing it. Well, it was fairly cut-and-dried that these offences had been committed. Cannabis is a Class C "controlled drug" under the Misuse of Drugs Act 1975. She didn't have a New Zealand prescription/permission to use medical cannabis products (such as Helen Kelly had been seeking). And nothing in NZ law allows you to mail yourself controlled drugs here in NZ, even if purchased legally overseas. So - conviction entered and sentence imposed, right? Not so. Instead, the Judge in her case discharged the accused without conviction - the legal equivalent of granting a free pass. Having not seen the full reasons for that decision (they haven't been issued yet) I can only go on what the accused woman's lawyer (Sue Grey) has told RNZ in her interview, but it seems a major factor in the discharge was the existence of s.8(2)(l) the Misuse of Drugs Act 1975. That provision says that the offences of possessing/importing a controlled drug do not apply in the following situation: a person may, while entering or leaving New Zealand, possess a controlled drug required for treating the medical condition of the person or any other person in his or her care or control, if the quantity of drug is no greater than that required for treating the medical condition for 1 month, and the drug was-- And, of course, the woman in question had got the cannabis laced products perfectly lawfully in California based on a doctor's assessment that they would treat her pain. So if she had physically carried them into NZ in her luggage, she would not have broken the law. But as she mailed them to herself (perhaps thinking about the likely attitude of NZ's border protection officials and wanting to avoid a lengthy delay at the airport), she did. Which the Judge obviously thought was a bit silly (or, at least, a distinction not warranting the harshness of a drugs conviction, with all the stigma that attaches to that) and so (effectively) let her off the charge. It's pretty obvious why s.8(2)(l) is in our Misuse of Drugs Act. The legislation covers a lot of substances, many of which have therapeutic uses as well as more recreational purposes. Take one example - Diazepam, or "Valium" as anyone who has ever struggled with depression or anxiety issues probably knows it by. It's a class C controlled drug, just as is cannabis (or, cannabis) leaf. Cannabis oil, of course, is a class B controlled drug ... just as is pseudoephedrine, which is a decongestant used to treat stuffy noses. So what happens when some tourist shows up at Auckland International Airport for her or his three week holiday with a prescribed packet of Valium to help them with the anxiety issues they experience when flying? That's a class C controlled drug. Or a packet of over-the-counter tablets bought in Mexico to deal with the nasty effects of a head cold? If there's psuedoephedrine in them, they are a class B controlled drug. Are we really going to arrest these tourists and charge them with possessing and/or importing controlled drugs? Of course not - we instead say that they can bring in with them a reasonable amount (1 months worth) of the substance to treat their medical condition without breaching our laws. Eminently reasonable. However, the issue is then twofold. First of all, New Zealand citizens get the same benefit of the legislative exemption - so that if you went to Mexico for a holiday and bought pseudoephedrine containing cold pills while over there, you get to keep them on your return (even though trying to buy them in NZ would be a quite serious criminal offence). And second, as more and more places start recognising cannabis as a therapeutic substance as well as a recreational drug, the number of places that this substance can be "lawfully supplied ... for the purpose of treating a medical condition" will rapidly escalate. Including our closest neighbour, Australia. Because it has within the last few days, under a Liberal-National conservative government, enacted legislation that permits the growing and distribution of medical cannabis products. As this article sets out, it will be a few months (maybe a year) before products actually become available, and exactly what they will be and how you can get them is still unclear. But nevertheless, by this time next year it may well be feasible for a Kiwi to get on a plane to Sydney or Melbourne, see a doctor about treating the symptoms of her or his cancer/chronic pain/other condition, get a prescription for medical cannabis, fill it and bring back a months worth of the product to New Zealand. Then the next month, she or he can do the same thing again. And again. And again. Of course, that's hardly the same as getting easy prescription access here in New Zealand. You have to be able to afford to fly and pay to see Australian doctors, to begin with. Also, it is highly questionable whether the Misuse of Drugs Act exemption allows someone to bring in controlled drugs for another person not in his or her presence (even if that person is in "his or her care or control" generally), so you probably have to be well enough to travel yourself to take advantage of the loophole. Nevertheless, the combination of medical cannabis being available just a three hour flight away plus being able to then legally bring it back to New Zealand is yet another reason why medical cannabis inevitably will become available here New Zealand. A reason that is comes with a delicious, delicious cherry of irony set atop it. Because it is birthed of the same forces that the current prohibitionist minded government says require the adoption of the TPPA - globalisation, common markets, free movement of goods across borders. It's just in this case the thing that wants to move freely - medical cannabis - is something the National Government seems hell-bent on keeping out for purely ideological reasons. Apparently Peter Dunne thinks I'm wrong about bringing medical cannabis into New Zealand. Here's a longer discussion of why I don't think I am. Yesterday I wrote this post, leveraging off a RNZ story about a judge discharging a woman without conviction for mailing herself medical cannabis from the US. In it I claimed that, on a straight reading of the Misuse of Drugs Act 1975, it appears that personal imports of a month's worth of medicinal cannabis appear to be lawful (so long as you personally carry it into the country through Customs). That's a view that I repeated to a reporter from RNZ news, and it is included in this follow up story. But apparently the Ministry of Health thinks that I am wrong, because RNZ's story also quotes the Associate Minister of Health, Peter Dunne, as saying: "The advice that I've had is no that is not possible. Because they are still bringing in substances that are controlled substances under our Misuse of Drugs Act and that they would be probably be confiscated at the border." Let's at the outset note the use of the weasel word "probably" in that sentence - I suspect that he really means "hopefully". Because I stand by my original statements and think his claim that medical cannabis (at least, medical cannabis obtained by way of a prescription from an overseas doctor or other medical professional) could lawfully be confiscated at the border is wrong. (Note that it may very well be true that Customs would, as a matter of fact, confiscate medical cannabis from travelers at the border. I just think that their doing so would be unlawful. But trying to get a government agency - especially an agency like Customs - to do what the law says they should is not always easy!) To recap and develop what I said in yesterday's post, it generally is unlawful for an individual to possess or import cannabis into New Zealand in either medicinal or recreational forms. It is a class C "controlled drug" under the Misuse of Drugs Act 1975. However, so are many substances that have therapeutic purposes (but are open to misuse/abuse); substances that we commonly think of as "medicines". Codeine. Pentobarbital. Camazepam. Diazepam. And so on. It is important to note that the Misuse of Drugs Act 1975 doesn't distinguish between "good" drugs (medicines) and "bad" drugs (not-medicines). Rather, it simply categorises "controlled drugs" into three levels (A, B and C ... or really bad, bad and quite bad) and attaches consequences to possessing/importing each. So here's the question. What happens if a person arrives at a New Zealand airport with a bunch of pills prescribed to them by an overseas doctor for some medical condition, which happen to contain a "medicine" which New Zealand considers to be a "controlled drug"? Does that person's seeking to bring the pills into New Zealand constitute an attempt to "import" the controlled drug - a criminal offence that can get you locked up for years? Can they even keep the pills, which may be very necessary to treat some medical condition, while they are in NZ? Well, you'd think from a common-sense point of view, the answer would be "no" and "yes" respectively. And that is precisely what the Misuse of Drugs Act says in s.8(2)(l): a person may, while entering or leaving New Zealand, possess a controlled drug required for treating the medical condition of the person or any other person in his or her care or control, if the quantity of drug is no greater than that required for treating the medical condition for 1 month, and the drug was-- Note that this exemption does not turn on whether or not New Zealand presently permits a particular controlled drug to be prescribed for therapeutic purposes under the Medicines Act 1981. It instead turns on three questions.
If the answer to these three questions is "yes", then you may possess the "controlled drug" when entering New Zealand. And that appears to be exactly how Customs views the matter, because on its website it gives this advice: If you arrive in New Zealand carrying controlled drugs on you or in your luggage (methadone for example), you may import it provided that you:
So here's the challenge I'd lay down to Minister Dunne and his advisers. In the next year Australia likely will begin to make medical cannabis available (I see Minister Dunne thinks this is "several years" away, but I'll believe what people actually in Australia say). Let's imagine that when it does some New Zealander flies into Brisbane (Queensland is very keen to get on with distributing the product), sees a doctor there about their medical condition (chronic pain syndrome, say) and is prescribed a month's worth of medical cannabis to treat that condition. She fills that prescription before boarding the plane back to Auckland, declares on her arrival card that she possesses the controlled drug and presents at Customs with her prescription/proof it has been lawfully obtained in Australia. How does her situation fit into s.8(2)(l)?
So given this, on what basis can Customs then confiscate the medical cannabis? It can't simply be that cannabis is a "controlled substance" (as Minister Dunne says in his statement). So is methadone (the example Customs uses). So is diazepam. So is codeine. All class C controlled drugs, just like cannabis. Yet if these drugs are "required" (i.e. suited) to treat a person's medical condition and were lawfully obtained overseas, you can bring in a month's worth of them. That's the whole point of s.8(2)(l) - it permits controlled drugs to be brought into NZ and then used for personal treatment purposes! So how could properly prescribed medical cannabis be treated any differently to other therapeutic controlled drugs under present law? Because that is a position I would love to see the Crown have to defend in, for instance, an application for a declaratory judgment ... in case anyone out there was keen to test the matter? - pundit.co.nz |
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