James Farmer


The Forthcoming Referendum on the Growing and Supply of Cannabis for Personal Recreational Use

Monday, November 19, 2018
Presently before the Parliament is the Misuse of Drugs (Medicinal Cannabis) Amendment Bill which would facilitate easier access to cannabis-based products for medical reasons.  Currently, such use requires Ministerial approval on a patient by patient basis.  On the horizon however is a much more radical and wide spread reform.  In exchange for Green Party supply support after the 2017 General Election, the present Government has committed to holding a referendum before or at the next Election in 2020 on whether the law should be changed to allow the growing and supply of cannabis for personal “recreational” use.

Two years ago, I wrote an article on the issue of legalising the use of drugs and of marijuana in particular.   My intention was to achieve publication to a much broader audience than my blog provides, the reading of which, I assume, is almost entirely restricted to lawyers.  The article was not in fact published and it was shelved.  However, the Herald on Sunday this week (18 November 2018) had a 3 page report of a former lawyer, Elizabeth Baird, whose career, family and life were destroyed by cannabis use, initially synthetic cannabis but later marijuana naturally grown, as a result of continuing psychotic episodes including ramming the rear of a car on the Auckland Harbour Bridge when driving at 165 km/h, believing that the boot of that car was a portal to a parallel universe.  She lost access to her children other than 2 supervised hours per week and was in and out of mental institutions over several years.

In the article that I wrote previously, I referred to research that demonstrates the harm, including paranoia and schizophrenia, that the use of marijuana can cause, especially to teenagers while their brains are still developing.  Baird is reported as saying that she suffered “the most horrendous paranoid beliefs and delusions”.  For that reason, she doesn’t think that cannabis use should be legalised.   She says: “Laws are designed to protect the vulnerable members of our community.  That includes young people and those who are predisposed to mental health problems or addiction.”  The Herald report also refers to evidence that many cannabis users move on to other drugs.

With that introduction, I set out below my 2016 article:


We are right to show concern at the increased use of drugs in society at large and at the major health impacts (including deaths) that result.  Of course, in this context, one starts with the premise that alcohol is a drug which can be addictive and that can readily lead to serious social harm.   Does acceptance of that fact mean that we should also accept the widespread use of drugs such as heroin, methamphetamine, cocaine and marijuana?  My answer is no.

There is justified concern that the increased manufacture and use of methamphetamine in New Zealand is growing rapidly despite the best efforts of the Police and the Courts to deal strongly with the problem.  Recent Ministry of Health figures reveal that there are about 26,000 meth users in this country with resulting hospitalisations tripling in the last 5 years (NZ Herald, 14 October 2016).  The recently published story of Haydee Richards who was a P addict through most of the childhood of her daughter Zara and the effects of that on both (NZ Herald 3 October 2016) is sobering and should make all of us determined to support the Government, the Police and all others to take every step possible to eradicate this truly horrible drug.  The same is true of heroin which was responsible for 953 deaths in New South Wales alone in the 5 year period of 1992-1996 (https://ndarc.med.unsw.edu.au/sites/default/files/ndarc/resources/T.R%20068.pdf).   

But what of marijuana, euphemistically described as a “recreational” drug and for which medicinal qualities are claimed?  There is and has been a continuing lobby for its legalisation and freedom of supply and use, both from libertarians who believe that this is just a matter of individual choice and from those who believe the law is ineffective and inappropriate in this field.

The starting point for any discussion on this topic has to be that Society and the Law have every right to intervene if particular conduct harms a person with consequential costs to others around that person or to the State.

So what harm does cannabis cause?  While research into the subject continues, there is strong evidence that the presence of delta-9-tetrahydrocannabinol (THC) in marijuana distorts how the human mind perceives the world and has particularly adverse and permanent effects on the developing teenage brain, leading in extreme cases to the triggering of schizophrenia. (If you are a parent of a teenager, have a look at this publication by the National Cannabis Prevention and Information Centre)  The acknowledgment of the potential dangers to young people explains why even in those States in the United States of America where use of the drug is no longer a criminal offence that is true only of adult use.

I will put my cards on the table at this point and say that I am in the camp that opposes any legitimisation of the supply or use of marijuana.  My position is simply that lawful use and supply carries with it an implied acceptance by society that it is not a harmful substance and, indeed – so many of its supporters say – is positively beneficial.   The onus has to be on those who claim that it does not cause harm to establish that fact.

Now that is not to say that the use of marijuana by adults should be a criminal offence. Decriminalisation is not the same as legalisation. 

There are obvious practical difficulties about the concept of sending drug users to prison or even fining them for mere use alone, even where (as will inevitably be the case) heavy or regular use will have detrimental social and health problems.  The comparison with alcohol use with the criminal law reserved for situations where drunkenness may be a danger to the public (driving a motor vehicle or drunken behaviour causing disturbance in a public place) is a fair one.

In an article by Lizzie Marvelly in the NZ Herald (20 August 2016), some statistics are given that demonstrate the futility of imprisoning low-level drug users where the very fact of incarceration in a prison (sometimes called “The University of Crime”) is likely to do more harm than good to the offender.  It would seem to be the case that in New Zealand there has been a reduction in the number of cases where so-called low-level recreational drug users are imprisoned with the police taking a conscious decision to exercise a greater degree of prosecution discretion, allied with the diversion scheme.

The establishment of the Alcohol and other Drug Treatment Court Pilot in 2012 has also played a potentially major part in reforming thinking about drug offences and relating them more closely to remedial measures than to the criminal sanctions.  (See the Litmus Report, “Formative Evaluation for the Alcohol and other Drug Treatment Court Pilot” by Lisa Gregg and Alison Chetwin and written for the Ministry of Justice in March 2014). 
Of course, drug use is often either causative of or accompanied by other criminal offending and imprisonment may be an outcome of the latter.  A hard line, however, continues (rightly) to be taken on methamphetamine, particularly on its manufacture and supply.   Will anyone argue that it is a drug that harms no one other than the user?   If so, consider again the story above of Haydee and Zara Richards, consider the seriously addictive features of the drug, consider how it causes paranoia and violence in users (https://www.elementsbehavioralhealth.com/drug-abuse-addiction/links-between-methamphetamine-use-paranoia-and-violence/).   Consider further the economic loss from the need to decontaminate and even destroy houses rented to tenants (including State houses) who use them to manufacture the drug.  Consider the effects of addiction (including from heroin) on young women who are led into prostitution with the attendant dangers of that profession.

Marvelly refers to the experience of Portugal where the use of cannabis (and, in fact, other drugs) was, she says, legalised in 2001, with, she says further, a subsequent reduction in drug-related deaths and in drug use generally.   She uses this as a precedent for arguing for decriminalising the use of cannabis or, as she puts it, not prohibiting use of the drug.  That however is a rather different concept.   Marvelly herself refers to the fact that persons in Portugal who are apprehended with even small amounts of drugs are “ordered” to appear before a “dissuasion panel or commission” consisting of legal, social and psychological professionals with repeat “offenders” being “prescribed” treatment. (See https://mic.com/articles/110344/14-years-after-portugal-decriminalized-all-drugs-here-s-what-s-happening#.ZqBzt6DlT.) That is, drug use in Portugal still carries legal consequences.   A legal regime with legal restraints remains in place but one which is clearly more attuned to more constructive and beneficial outcomes than the use of the blunt instrument of criminal law sanctions. 

It also needs to be noted that Marvelly’s description of the Portuguese reforms is not accurate.  Further, her claims of the benefits of drug decriminalisation in terms of reductions in drug deaths and use in Portugal are not universally accepted.

First, apprehension of drug use continues.  Cases of consumption, purchase or possession of up to a 10 days’ supply of an illicit drug are referred to the dissuasion panel which has legal enforcement powers in the form of treatment, fines and warnings.  Trafficking and cultivation as well as possession of quantities exceeding 10 days supply remain criminal offences.    As to the claim that decriminalisation in Portugal – to the extent that it has occurred – has reduced the incidence of drug use and of drug-related deaths, the US Office of National Drug Control Policy says that it is difficult to draw reliable conclusions to this effect.  A decline in drug-related deaths had begun before the enactment of the reforms and there was in fact a new increase in them in the 2004-6 period after the reforms had been enacted.  The drug use figures are also ambivalent in that, while decreases in some age groups can be identified, they are matched by increases in other age groups.

Decriminalisation as such is not therefore the key determinant of any improvements in the incidence of and harm caused by drug use or, arguably, even a relevant one.   Professor Alex Stevens of the University of Kent argues that gains are more the result of improvements in health and social policies than in decriminalisation and refers to the conclusions of the European Monitoring Centre for Drugs and Drug Addiction, based on international research, that there is little correlation between the level of punishment for drug offences and the rate of drug use or drug problems. 
There is also evidence from the United States that mere legalisation of marijuana use without any of the remedial and corrective machinery of the kind enacted in Portugal can trigger other unintended and undesirable consequences.   

In an article in Esquire on 9 August 2016 (reproduced in The Wall Street Journal on 19 August 2016), Don Winslow tracked the marijuana legalisation and decriminalisation reforms in the United States with the dramatic increase through the same period in overdose deaths from pharmaceutical opioids (165,000 increase from 1999 to 2014).  More people (47,055) died in 2014 from drug overdoses than in any other year in American history, a fatality level that matched the AIDS epidemic peak in 1995. 

Winslow claims that one effect of the ready, legal, availability of marijuana in many parts of the United States was that the previous suppliers of marijuana from Mexico found their market position substantially eroded by US domestic supply which did not face the problem of cross-border transportation.  Faced with that but recognising that an increasing number of Americans were becoming addicted to prescription opioids (which have the same basic characteristics as heroin), the Mexican Sinaloa Cartel increased the production of Mexican heroin by 70 percent and also raised the purity level (from 46% to 90%) and then, in what Winslow described as “classic market economics”, dropped the price (a kilo falling from $200,000 in New York City a few years ago to $50,000).    Now cheaper than legal pharmaceutical marijuana, pill users moved to the new heroin.  But neither they nor the existing heroin users were accustomed to the potency of the new product and hence the skyrocketing in drug deaths.

Back to the other drugs said to be the precedent for legalising cannabis – alcohol and tobacco.    Matthew Hooton (NBR, 26 August 2016) points to the contradiction between those who support cannabis decriminalisation and who say that legalisation will lead to fewer people smoking it and the evidence that prohibiting tobacco smoking in an increasing number of venues has led to reduced tobacco consumption.  And how does one explain the apparent need for increased restrictions on drinking alcohol in city streets following the lowering of the drinking age?

The Economist, in a column published on 13 February 2016, makes the point that those advocating legalisation do not confront the question of how a lawful cannabis trade should work.  Should cannabis sales be taxed and, if so, at what level?  Should advertising be permitted?  It is largely absent now in the underworld but in the legal world advertising could stimulate vast new demand.  There is also the problem that cannabis is no longer just smoked.  Entrepreneurs have cooked up pot-laced food and drink, reaching customers who might not wish to smoke the stuff and in higher and stronger concentrations.

While writing this, I read that a millionaire Auckland businessman has paid $45,000 for cocaine for his personal use but is seeking name suppression to a charge of breaching the law because his company will be harmed by it being known that the person making key decisions for it voluntarily chooses to distort reality by snorting cocaine. My reaction is to ask: is repulsion to a privileged member of society befuddling his brain unwarranted conservatism or a legitimate concern that his actions will affect others?  We expect our sporting heroes to be role models.  Why not our other leaders in society?

Jim Farmer QC

19 November 2018

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