To legalise or not to legalise?

On 19 September New Zealand will vote not just for the next government but in two referenda. One of these is whether or not cannabis should be legalised, and the government has drafted a Bill to set out what the law will be if by majority vote the public decide that cannabis should be legalised.

The issue of cannabis law reform has been debated for many years and for a time there was even a political party, the Aotearoa Legalise Cannabis Party, that was essentially a single issue movement around the subject. At times there have been politicians who have promoted cannabis, the most significant recent instance being the Green Party MP, Nandor Tanczos, who served in parliament from 1999 to 2008.

As in many countries the debate focuses on one hand on the harms of illicit drug use, and on personal freedoms on the other hand, and a perception that drug offences, especially in relation to person use, are essentially “crimes in search of a victim.”

However, reality is far more nuanced than these polar extremes. Few would argue that drugs are in any way beneficial or that their presence in society is anything other than harmful. Meaningful debate as to drugs policy should therefore focus on harm minimisation, accepting that the use of drugs is harmful and looking to mitigate that harm. It is also of little avail to suggest that simply because society already tolerates one substance that when misused undeniably causes a great deal of harm, alcohol, that it should permit others.

During the 19th century, opium was not restricted in Europe until the Pharmacy Act 1868 in the United Kingdom. A tincture of opium (solution in alcohol) known as laudanum was popular throughout society at this time, creating a double problem of addiction both to alcohol and opium. After the enactment of the Pharmacy Act 1868, there was unrestricted trade in mixtures that contained less than 1% opium.

Opium, and the most important opiate, synthesised in the poppy plant, morphine, were known to cause addiction during the 19th century. In what turned out to be a disastrous attempt to produce a new compound which possessed the analgesic (pain killing) properties of morphine yet which lacked the addiction potential of morphine, some experimenters turned to derivatives of morphine. Heroin was first invented in 1874, being an acetylated version of morphine which is more effective as a drug because of its water solubility and swift access into the brain, especially when injected. Nothing much was done then, but it was independently developed by researchers at Bayer, and from 1898 to 1910 it was marketed as a non-addictive morphine substitute and cough suppressant. Another “semi-synthetic” opiate is desomorphine, the active ingredient in the appallingly dangerous home-baked Russian street drug known as krokodil.

Restrictions on drug use began in earnest around the start of the First World War. The International Opium Convention was signed by 13 nations on 23 January 1912, requiring the contracting states parties to use best endeavours to control opiates. The First World War also saw a marked move towards temperance throughout the western world, leading to the Prohibition Era in the United States and a narrowly-defeated temperance vote in New Zealand on 7 December 1919. Restrictions on sales of liquor in bars and more generally ensued.

In New Zealand, the first legislative measures were generally aimed at opium and its derivatives. Cannabis, then known as “Indian hemp” became of interest in 1925 when it was added to a list of drugs that countries adhering to international conventions should control. In 1927, the Dangerous Drugs Act was enacted, based substantially on similar English legislation. For the first time, cocaine and ecgonine (the alkaloid from which cocaine is derived) were restricted, although in New Zealand, few cases of addiction to cocaine had arisen.

The law was replaced by the Narcotics Act 1965 then with the Misuse of Drugs Act 1975, which, although amended, remains in force today. In the Misuse of Drugs Act, cannabis is treated as considerably less serious than drugs such as morphine, heroin or methamphetamine.

International trends towards liberalisation

There has been much publicity about the increasing international trend towards legalising cannabis. Many countries now permit medicinal cannabis, while some have decriminalised personal possession, and a few have legalised it. None that have legalised it have done so without checks and balances. In the United States, a number of states have legalised cannabis, although it remains in a strange legal limbo as it remains illegal under federal law.

In South America, attitudes towards cannabis are relatively liberal. While it remains illegal in most countries in the region, Brazil, Argentina and Chile generally ignore the personal consumption of cannabis. Uruguay, however, has legalised it. The Uruguayan model is based on state control of supply and the registration of those who wish to purchase it. Cannabis is sold by licensed pharmacies only to people who have registered with the Post Office. Only residents and citizens can register to buy it, but the consumption of cannabis is legal.

In North America, Canada has legalised cannabis, although the implementation of legal cannabis sales has been extensively criticised. The price of the legal product has been high enough that a flourishing parallel black market also exists, the very thing that legalisation was intended to end. In October 2019 it was estimated that 86% of cannabis sales on Canada were black market sales. In the United States, Colorado and Washington legalised cannabis in 2012. Other states followed, so as at present, eleven states together with the District of Columbia, have legalised cannabis. Many others permit medicinal cannabis.

New Zealand arguments for and against

There are many sources of information concerning the issue in this country. The Office of the Prime Minister’s Chief Science Advisor has published an extensive briefing document concerning the matter which summarises what is known of the health impacts and the expected outcomes from legalisation. The Chief Science Advisor has presented the information neutrally, not advocating either for or against legalisation.

The starting point is that cannabis use is harmful although the levels of harm resulting from its use are generally regarded as lower than those resulting from the use of alcohol or tobacco. However, it is possible that the harm to habitual users as opposed to mere dabblers, is greater. It is particularly harmful to young people, this being reflected in the proposed Bill which sets an age limit of 20 for possession or purchase of cannabis products.

Some harms arise not from the consumption of cannabis per se, but from activities such as driving while under the influence of cannabis or its potential impact of work performance. It is not suggested that it will be legal to drive while influenced by cannabis, and legalisation of cannabis does not require employers to tolerate intoxication or impairment amongst employees any more than would be the case with alcohol.

Many of those opposed to the legalisation of cannabis are concerned that its use will increase, and that there will be a flow on effect into harder and more dangerous drugs. It is difficult to generate reliable figures given the current status of cannabis as illegal, but it has been estimated that around 80% of New Zealanders have tried cannabis at least once in their lives, and 15% have used it in the past year. It is a statement of the obvious that the prohibition on the use of cannabis is a law that is widely flouted, and unless there is a good reason to retain it, prohibiting the use of a substance that 80% of the population have tried is counterproductive.

An argument against legalising cannabis is that it may be the beginning of a general legalisation of all drugs. There are concerns that cannabis is a “gateway” drug, whose users often progress to methamphetamine. New Zealand, fortunately, has few opiate and cocaine addicts. Although this may currently be true, it is in the context of a black market, supplied completely outside of any regulation or control of any kind, where more than likely, the suppliers will offer their customers harder drugs, notably methamphetamine. If drug sales took place in a controlled, legal environment, not only would the quality and safety of the products be much higher, there would be no marketing of harder drugs in their place.

It would be hoped that legalisation of cannabis would decrease the use of other drugs, such as “synthetic cannabis” but a black market for this product may continue, especially if it is difficult to detect with standard employee drug tests.

One very clear advantage that legalisation would bring, if done properly, is the removal of a significant flow of revenue to criminals. Legal drug suppliers would pay tax, employ staff and be subject to legislation such as the Consumer Guarantees Act. At least in respect of cannabis, it is to be hoped that legalisation would bring the use of the substance into the open where meaningful health services could be offered to people suffering from addictions or other drug-related harm. Conversely the costs associated with treating the drug as a criminal justice issue would decrease.

Largely for these reasons, as author of this article, I favour legalisation. I do not suggest that the use of cannabis is without harm and I have no personal interest in its consumption. However, I believe that society as a whole would be better off treating it as a health issue rather than a criminal justice issue. It has not proven feasible to arrest and prosecute away the problem of illegal drugs in New Zealand, so if a part of the problem can be addressed through an effective regime whereby supply can be legal, that is to be preferred over complete prohibition.

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