Drug and Substance Checking Legislation Bill (No 2)

Drug and Substance Checking Legislation Bill (No 2)

Government Bill

34—1

Explanatory note

General policy statement

The Drug and Substance Checking Legislation Bill (No 2) (the Bill) is an omnibus Bill introduced under Standing Order 267(1)(a). That Standing Order provides that an omnibus Bill to amend more than 1 Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. The single broad policy implemented by the amendments in this Bill is to try to minimise drug and substance harm by allowing drug and substance checking services to operate legally in New Zealand.

This Bill amends the Misuse of Drugs Act 1975, the Psychoactive Substances Act 2013, and the Medicines Act 1981 to allow drug and substance checking services to operate with legal certainty. Drug and substance checking services check the composition of drugs and substances and provide information and harm reduction advice to help individuals make informed decisions about drug and substance use. If, after testing, a drug or substance is discovered not to be as presumed, the individual can make the potentially life-saving decision not to consume it.

The Bill follows on from the Drug and Substance Checking Legislation Act 2020 (the Drug Checking Act), and is similar in most respects. The Drug Checking Act was developed to allow drug checking to take place with legal certainty over the summer of 2020–21, while a permanent system was developed. It includes repeal provisions which will take effect 12 months after the Drug Checking Act’s date of commencement.

Before the Drug Checking Act came into force, there were limited exemptions to the prohibitions on possession and supply of controlled drugs in the Misuse of Drugs Act 1975, none of which covered drug and substance checking service providers. Organisations and individuals who conducted drug checking were therefore at risk of being charged with possession or supply if they handled controlled drugs in the course of providing their services. There was also legal uncertainty about whether drug checking services could send controlled drugs to an approved laboratory for further testing.

Similar risks arose under the Psychoactive Substances Act 2013 with the checking of psychoactive substances that were not approved products, and under the Medicines Act 1981 with the checking of prescription medicines that were not controlled drugs.

Under section 12 of the Misuse of Drugs Act 1975, it is an offence to knowingly allow premises to be used for the commission of any offence against that Act. Before section 12 was amended by the Drug Checking Act, event organisers and other hosts who allowed drug checking services to take place were at risk of prosecution under section 12 because the promotion of drug checking services could have constituted evidence of knowledge that drugs were being consumed or possessed on the premises. This meant hosts were disincentivised from hosting a harm reduction initiative. The Drug Checking Act amended section 12 to provide that it is not an offence to host a drug checking service.

If a permanent regulatory system is not introduced, drug checking will revert to a legal grey area. Drug checking service providers and their hosts would be at risk of prosecution, and it is likely that drug checking services would be provided at fewer events.

In order to enable drug and substance checking services to operate with legal certainty, this Bill enables the Director-General of Health to issue licences for drug and substance checking service providers to carry out the following functions:

  • providing information and harm reduction advice to help individuals make informed decisions about drug and psychoactive substance use:

  • testing any drug or substance, or sample of a drug or substance, (which may be a controlled drug or psychoactive substance) that an individual presents for checking to ascertain the composition and likely identity of the drug or substance:

  • advising the individual who presented a drug or substance for checking of the outcome of the testing:

  • returning a drug or substance to the individual who presented it for checking:

  • arranging for a sample of a drug or substance to be tested by an approved laboratory:

  • disposing of any sample of a controlled drug or substance used in testing:

  • disposing of, or arranging for the disposal of, any drug or substance surrendered by any individual for disposal.

The licence provisions are the main difference between this Bill and the Drug Checking Act, which provided for the Director-General to appoint service providers. The licensing system will set clear expectations and requirements for all providers, and enable ongoing oversight.

Transitional provisions will ensure that providers appointed under the Drug Checking Act can continue to operate legally while they are awaiting a licence under the new system.

Regulations under the Misuse of Drugs Act 1975 will give effect to elements of the regulatory system, including—

  • pathways for licence applications, renewals, suspensions, and revocations:

  • an appeals process:

  • requirements for all licence holders, including—

    • a requirement that clients are not charged to use the service:

    • reporting requirements:

    • a requirement that any surrendered drugs be stored securely.

Possession of controlled drugs and unapproved psychoactive substances by members of the public will continue to be illegal. However, the results of testing by drug and substance checking service providers will not be admissible in criminal proceedings against the person who supplied any controlled drug or unapproved psychoactive substance for testing.

The Bill makes it an offence for a drug and substance checking service provider to breach, without reasonable excuse, any terms or conditions of their licence, and for a person, without reasonable excuse, to operate a drug and substance checking service without being licensed to do so. The penalty for these offences is a fine not exceeding $5,000.

Departmental disclosure statement

The Ministry of Health is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Ministry of Health produced a regulatory impact statement in March 2021 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. It provides that the Bill comes into force on the later of the following:

  • the day after the date on which the Bill receives the Royal assent:

  • immediately after subpart 2 of Part 1 and subpart 2 of Part 2 of the Drug and Substance Checking Legislation Act 2020 come into force.

Those subparts repeal the temporary provisions inserted by the Drug and Substance Checking Legislation Act 2020 into the Misuse of Drugs Act 1975 and the Psychoactive Substances Act 2013. As a result of clause 2, this Bill will not come into force until the temporary provisions are repealed.

Part 1Amendments to Misuse of Drugs Act 1975

Clause 3 provides that Part 1 amends the Misuse of Drugs Act 1975 (the principal Act).

Clause 4 amends section 2 of the principal Act, which defines various terms used in the principal Act. This clause inserts definitions of drug and substance checking service provider, service provider, and psychoactive substance.

Clause 5 inserts new section 2AA, which gives effect to the transitional, savings, and related provisions set out in new Schedule 1AA.

Clause 6 amends section 6 of the principal Act, which is an offence provision for various dealings in controlled drugs, including the supply of controlled drugs and the possession of controlled drugs for the purpose of supply. The effect of the amendment is to exempt from the application of section 6 of the principal Act an individual who supplies a controlled drug to a drug and substance checking service provider (a service provider) for checking or disposal.

Clause 7 similarly amends section 7 of the principal Act, which is an offence provision relating to the possession and use of controlled drugs. The effect of the amendment is to exempt from the application of section 7 the same individuals who are exempt from the application of section 6 of the principal Act.

Sections 6 and 7 of the principal Act do not apply to a person who is acting pursuant to a licence under the principal Act. As a result, those sections will not apply to a service provider who, for the purpose of performing their functions, takes the actions permitted by new section 35DC (which are to possess a controlled drug, return a controlled drug to the individual from whom it was received for checking, and send a controlled drug to an approved laboratory for testing).

Clause 8 amends section 12 of the principal Act, under which it is an offence to knowingly permit any premises to be used for committing an offence against the principal Act. The amendment exempts from the application of section 12 persons who permit their premises to be used by a service provider for the provision of drug and substance checking services. This amendment enables persons who host musical festivals and other events to allow drug and substance checking service providers to attend the event to provide drug and substance checking services without the person incurring any liability under the principal Act.

Clause 9 amends section 14 of the principal Act to clarify that—

  • the general provision for licences to be issued by persons who are prescribed by regulations does not apply to licences for service providers (which are issued by the Director-General of Health under new section 35DA); and

  • the general offence provision for the breach of licence conditions does not apply to licences for service providers (a specific offence provision for those licences is set out in new section 35DE).

Clause 10 inserts into the principal Act a new cross-heading and new sections 35DA to 35DI.

New section 35DA provides for the licensing of service providers. The licences are issued by the Director-General of Health. A list of service providers must be maintained by the Ministry of Health on its Internet site.

New section 35DB sets out the functions of service providers. Most importantly, service providers provide information and harm reduction advice to individuals and, on request from an individual, check and advise on the composition and likely identity of any drug or substance that is presented.

New section 35DC provides that, for the purpose of performing their functions, a service provider may—

  • possess a controlled drug:

  • return a controlled drug to the individual who submitted it for checking:

  • send a controlled drug to an approved laboratory for testing.

New section 35DD provides that an individual may—

  • supply a controlled drug to a service provider for checking:

  • give a controlled drug to a service provider for disposal.

New section 35DE provides that it is an offence for a service provider to breach any term or condition of their licence. The penalty on conviction is a fine not exceeding $5,000.

New section 35DF provides that it is an offence for any person who has not been licensed under new section 35DA to interact with individuals to provide checking services in relation to controlled drugs. The penalty on conviction is a fine not exceeding $5,000.

New section 35DG provides that service providers must not collect, maintain, use, or disclose any personal information relating to individuals from whom they receive any drug or substance for checking or disposal.

New section 35DH provides that employees or volunteers of service providers are not liable for any actions taken or not taken in the course of performing the service providers’ functions unless they acted in bad faith or without reasonable care. They are also not responsible for any liability of the service provider.

New section 35DI provides that the result of any test carried out by a service provider in relation to any drug or substance is not admissible as evidence in criminal proceedings.

Clause 11 inserts into the principal Act new section 37(1)(aa), which empowers the Governor-General to make regulations providing for the issue of licences to service providers.

Clause 12 inserts into the principal Act new Schedule 1AA, which sets out transitional, savings and related provisions. Under those provisions,—

  • the Director-General of Health may not issue a licence under new section 35DA until regulations under new section 37(1)(aa) come into force:

  • so long as an existing service provider applies for a licence within 1 month after the regulations come into force, their appointment is continued until the licence application is decided.

Part 2Amendments to Psychoactive Substances Act 2013

Clause 13 provides that Part 2 amends the Psychoactive Substances Act 2013 (the principal Act).

Clause 14 amends section 8 of the principal Act, which defines various terms used in the principal Act. This clause inserts definitions of approved laboratory and drug and substance checking service provider.

Clause 15 amends section 70 of the principal Act, which is an offence provision relating to the sale and supply of a psychoactive substance that is not an approved product. The amendment exempts from the application of section 70—

  • a person who supplies a substance to a service provider for checking or disposal:

  • a service provider who returns a substance to the individual who submitted it for checking, or sends it to an approved laboratory for testing.

Clause 16 amends section 71 of the principal Act, which provides that it is an offence to possess a psychoactive substance that is not an approved product. The amendment exempts from the application of section 71 a drug and substance checking service provider who possesses a substance in the course of carrying out their functions.

Part 3Amendment to Medicines Act 1981

Clause 17 provides that Part 3 amends the Medicines Act 1981 (the principal Act).

Clause 18 inserts new section 109(3A) into the principal Act. New section 109(3A) states that a service provider does not commit an offence against the principal Act if they are acting in accordance with their functions as a service provider and the terms and conditions of their licence.