The Health Committee has examined the Drug and Substance Checking Legislation Bill (No 2) and recommends by majority that it be passed. We recommend all amendments unanimously.

The Drug and Substance Checking Legislation Bill (No 2) is an omnibus bill that aims to minimise harm from controlled drugs and psychoactive substances. It would do so by allowing services that check the composition of drugs and substances to operate legally in New Zealand. It would amend 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.

The bill is similar to the Drug and Substance Checking Legislation Act 2020, which received Royal assent on 7 December 2020 and which will be repealed automatically after 12 months. That Act was developed to allow drug checking to occur with legal certainty over the summer of 2020/21, while a permanent system was developed. It amended the Misuse of Drugs Act and the Psychoactive Substances Act to enable the Director-General of Health to appoint providers of drug and substance checking services.

The bill would establish a licensing system for providers of drug and substance checking services. It would enable the Director-General to issue licences for providers to perform certain functions.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We wish to bring the House’s attention to an issue relating to clause 10, proposed new sections 35DE and 35DF, which we discuss in more detail later in this commentary. These sections relate to the offence provisions.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor, technical or consequential amendments.

Under section 12(1) of the Misuse of Drugs Act, it is an offence to knowingly permit any premises or vehicle to be used for the purpose of a drug offence. Clause 8 of the bill would amend section 12 to specify that it would not be an offence for a person to permit premises to be used by a licensed provider to undertake drug checking.

We note that the amendment to section 12 in the bill as introduced refers only to “premises”, whereas the Act also refers to a range of vehicles. We understand that some providers may wish to operate mobile services, such as from a truck or other vehicle. We consider that this would help improve access to drug checking, particularly in rural areas. Therefore, we recommend amending clause 8 to include vehicles.

Clause 10 would insert new sections 35DA to 35DI into the Misuse of Drugs Act. New section 35DB specifies the functions of a drug and substance checking service provider.

Clause 10, inserting section 35DC, would enable a licensed provider to possess a drug, return a controlled drug to a person who submitted it for testing, and send a drug to an approved laboratory for testing. These activities would need to be for the purpose of performing the provider’s functions in proposed new section 35DB.

We recommend amending proposed section 35DC(1)(a) to make it clear that providers could only possess drugs for as long as was reasonably necessary to perform their functions. This would ensure that providers did not retain drugs for longer than needed, while also giving them time to return from events in remote areas.

Proposed new sections 35DE and 35DF contain the offence provisions for the legislation. New section 35DE would prohibit a person licensed as a service provider from breaching any terms or conditions of their licence. New section 35DF would prohibit a person from carrying out any of the functions specified in section 35DB(1)(b) to (e) without being licensed as a service provider under section 35DA.¹ As introduced, both offences have the same penalty—a fine of up $5,000 if the person did not have a reasonable excuse.

We sought advice about whether the offences were equally serious and whether it was appropriate for both offences to carry the same penalty. We were advised that setting both penalties at the same level could act as a disincentive for a provider to seek a licence. This is because a provider who breached their licence could be fined the same amount as a person who provided drug checking services without one.

We understand that unlicensed drug checking could include a range of activities, some of which could cause serious harm. For example, a person or group providing low-quality, inaccurate, or fake drug testing to a lot of people could create a serious risk of harm if clients had a false sense of security about the contents of the drug. To deter this type of behaviour, we recommend amending section 35DF(2) by increasing the penalty for providing drug checking services without a licence. The new penalty would be a fine not exceeding $20,000. We note that the proposed amount is lower than fines in other legislation for operating without a licence. However, we understand that drug checking is generally not a profitable activity. We therefore consider that a fine of $20,000 would be a significant deterrent for non-profit organisations and small-scale commercial operations.

Section 17 of the Misuse of Drugs Act deals with the liability of directors and senior managers of a body corporate that commits an offence under the Act. However, the section does not expressly deal with the other kinds of entities that may become service providers. We recommend inserting section 35DG to clarify when the people responsible for a service provider may be liable for an offence committed by the entity.

As introduced, section 35DG specifies that drug checking providers would not be able to collect, maintain, use, or disclose any personal information relating to an individual who has provided drugs for checking or proposal.

The terms “collect” and “personal information” would have the meanings given in the interpretation of the Privacy Act 2020. We note that section 35DG would enable the collection of anonymous demographic information, such as age, gender, and ethnicity. This is because the Privacy Act limits the definition of “personal information” to identifiable personal information, such as names, birth dates, and contact information.

We understand that the intent of section 35DG is to protect users of drug checking services from prosecution and other adverse effects if their use of the service became known. It also recognises that some people would not use the services if their personal information was collected.

Some submitters suggested that licence holders be allowed to collect personal information for a range of purposes. The purposes included taking bookings, providing follow-up test results, responding to medical emergency and complaints, and participating in coronial inquiries. Several submitters expressed concern that the implications of section 35DG were unclear for drug checking providers that also provide other health services, given that most health services collect patient information.

We note that the bill, as introduced, could create significant difficulties for any health service provider that wanted to provide drug checking services and health services together.

We recommend deleting section 35DG and inserting section 35DDE as a general licence condition. Under our proposed amendment, a service provider could not require the collection of personal information or anonymous demographic information as a condition of service. A service provider would also be prevented from collecting personal information in other ways, except as permitted by our proposed section 35DDE(3). Our proposed section 35DDE(3) makes it clear that service providers would still be able to collect personal information in the course of providing other health services.

New section 35DI provides that the results of tests carried out by service providers would not be admissible as evidence in criminal proceedings against the individual who provided the drug. We understand that this provision is intended to reassure people using drug checking services that their test result could not be used as evidence against them.

We believe that the fact that a person used a drug checking service should also be inadmissible as evidence. We recommend amending the bill accordingly.

As introduced, new section 35DI would still enable evidence of drug checking to be used in some circumstances. Examples include civil cases, such as in Family Court and Employment Court proceedings. We recommend amending the bill to cover these situations. We consider that our proposed amendments to section 35DI could give potential service users more confidence that they would not face legal consequences for using drug checking services. Our hope is that more people would access advice about harm reduction and make informed decisions about drug consumption.

New Schedule 1AA sets out the transitional provisions for drug checking providers appointed under the Drug and Substance Checking Act.

Clause 4(1) of the Schedule specifies that an existing service provider’s appointment would end if they did not apply for a licence within 1 month of the regulations coming into force. If they do apply for a licence, clause 4(2) provides that an appointment would end when they were granted a licence, or when the Director-General decided not to issue the existing service provider a licence and their rights of appeal or review were exhausted. We recommend amending clause 4(2)(b) to make it clear that the “rights of appeal or review” would be the rights provided under clause 11 of Schedule 6 of the Misuse of Drugs Act.

Clause 35DA would allow the Director-General of Health to issue licences for people to be providers of drug and substance checking services. This would be according to regulations made under the Misuse of Drugs Act. Appointments made under that Act will be continued until the regulations under this bill come into force. In the event of a gap between the Act’s repeal provisions taking effect and the licensing system starting up, the transitional provisions will ensure that appointed providers can continue to operate legally.

We recommend adding clause 4(4) to clarify that appointments would be continued despite any expiry date they may have. This is because there is no mechanism to renew an appointment which expires after the Drug and Substance Checking Act is repealed.

We note that, under the bill as introduced, most elements of the licensing system would be set out in regulations made under the Act. Several submitters were concerned that this approach lacks transparency regarding how the licensing system would work. We agree with this view. We sought advice as to whether any details could be moved from regulations to the bill to clarify how the licensing system would operate.

We were advised that many elements of the licensing system could be appropriately included in either the bill or regulations. We therefore recommend inserting clause 12A so that elements detailed in our next section would be inserted as new Schedule 6 of the Misuse of Drugs Act. We consider that they should be included in the bill for one or more of the following reasons:

• They would be needed to fulfil the intent of the bill.

• They would provide certainty for licence applicants and licence holders about a key element of the licensing system.

• They would be a requirement that should be applied to all licence holders.

• They would be unlikely to need to be altered in response to developments in technology, best practice, or other reasons.

• They would not include detail that would be more appropriate in regulations.

We consider that the regulation-making power included in the bill as introduced would be too broad if more elements of the licensing system are included in the bill. Therefore, we recommend that section 37B be included to more specifically set out how regulations may supplement the licensing provisions in the bill.

Regulation 28 of the Misuse of Drugs Regulations 1977 sets out detailed storage requirements for people who possess controlled drugs under the Act. The requirements include that the drugs are kept in a metal or concrete cupboard that is securely fixed to a building, ship, aircraft, or vehicle.

We note that some drug checking providers, including medical professionals, could be subject to regulation 28. We consider that having to comply with the regulation could create significant practical problems for them, particularly those providing services at festivals. We recommend inserting clause 20 to provide that licensed drug checking providers would not be subject to regulation 28 of the Misuse of Drugs Regulations. Under our proposed new section 35DDG, providers would be required to securely store all drugs in their possession.

We requested advice about whether any work has been undertaken to quantify the level of funding that would be needed to provide drug checking services on a meaningful scale. We were advised that the Ministry of Health has been working on options for funding. It has been working with providers, including those who might provide services in the future.

National members remain concerned about the signal this sends on the acceptability of the use of drugs and other prohibited substances. We believe the state should not condone in any way the use of these substances, either implicitly or explicitly.

The evidence presented thus far does not support the harm reduction aim of this bill, and so the National members are not convinced any significant harm reduction would occur. On this basis, we oppose this bill.