New Zealand has not decriminalized possession or use of cannabis or other drugs, but has diversion programs that allow the police or prosecutors to divert minor offenders from the criminal justice system and into treatment or counseling. In addition, a drug court, the Alcohol and Other Drug Treatment Court, is currently operating in one major city under a five-year pilot program that commenced in 2012.
Where there has been a major shift in approach is in relation to new psychoactive substances, such as “party pills” and synthetic cannabis. Such substances were previously legal unless they had been criminalized under the Misuse of Drugs Act 1975. In 2013, legislation was enacted that enables for product approvals related to psychoactive substances, provided that an applicant can show that a particular substance is of a low risk to users. However, although the necessary regulations to implement the legislation are in effect, an amendment to the legislation in 2014 that prohibits consideration of the results of animal testing of substances means that there are currently no approved psychoactive substances or products. Personal possession of a psychoactive substance that has not been approved is an infringement offense, with a NZ$300 fee imposed through infringement notices issued by police.
New Zealand classifies various drugs and penalizes their cultivation, sale, possession, and use under the Misuse of Drugs Act 1975. The following classifications in the Act are “based on the risk of harm the drug poses to individuals, or to society, by its misuse”:
- Class A (very high risk of harm) includes methamphetamine, cocaine, heroin, LSD
- Class B (high risk of harm) includes cannabis oil, hashish, morphine, opium, ecstasy, and many amphetamine-type substances
- Class C (moderate risk of harm) includes cannabis seed, cannabis plant, codeine
Separate from the legislation, the National Drug Policy 2015 to 2020 is the “guiding document for policies and practices responding to alcohol and other drug issues.” It is used to prioritize resources and “assess the actions taken by agencies and front-line services.” The Inter-Agency Committee on Drugs oversees such actions and monitors progress against the objectives contained in the National Drug Policy.
Some groups in the country have engaged in ongoing advocacy regarding decriminalizing recreational cannabis use. However, recent reports indicate that there is very little political support for such a change among the parties represented in Parliament. Although cannabis possession remains illegal, with an NZ$500 fine (about US$356) and/or three months of imprisonment applying to simple possession offenses, some offenders may be diverted from the criminal justice system.
One area where there has been a significant shift in approach has been in the regulation of new psychoactive substances, which are commonly referred to as “party pills, herbal highs, legal highs, synthetic cannabis or legal recreational drugs.” In 2013, a statute was passed that established a new regulatory system for such substances. The substances can be approved for sale where the distributors or producers prove that they present a low risk to users.
II. Diversion Programs
A young person under seventeen years of age who is reported for possessing or smoking cannabis, where it is his or her first offense and the amount of cannabis does not constitute enough for supply, will be dealt with using options that include a warning, alternative action (diversion), or family group conference techniques. More serious cases are addressed in the Youth Court.
Young people over seventeen years of age will likely be offered diversion for minor cannabis possession or use, especially if it is their first offense. This may involve a donation and/or attending an approved counseling course in order to avoid the court process.
The Police Adult Diversion Scheme may be used for first offenders in relation to a range of offenses, including minor drug offenses. Several criteria apply in determining whether to consider diversion, including whether there is “sufficient evidence and public interest in pursuing prosecution of the case.” Generally, this test is not met if it is the person’s first offense, the offense is not serious, the person has accepted full responsibility for the offenses, the person has received an explanation of his or her legal rights, and the person agrees to the conditions of diversion. Consideration of whether or not a person is eligible for diversion is undertaken by the Police Prosecution Service, and the prosecutor will advise the court and the offender if the case may be suitable for diversion.
If the offender wishes to be considered for diversion, he or she will be interviewed about the offense and must take responsibility for it. If approved for diversion, a written agreement will be prepared and signed. Such agreements, and their conditions, are tailored to each individual. For example, they may include a requirement to attend addiction treatment or counseling. Once the requirements have been fulfilled, the prosecutor will “advise the court that diversion has been successfully completed and that the charges have been dismissed.”
In 2011, the New Zealand Law Commission completed a report on its review of the Misuse of Drugs Act 1975. Among its recommendations for reforming drug law in New Zealand was the establishment of a mandatory cautioning program for personal possession and use offenses. The report provides information on the key components of such a program, which would essentially replace the Police Adult Diversion Scheme for these offenses. The Law Commission also stated that, if such a program is not implemented, “further consideration should be given to widening the application of the Diversion Scheme to a greater range of personal possession and use offences, including those for Class A and B drugs.” There does not appear to be any current proposals to implement either the new caution system or an expansion of the diversion program.
III. Drug Court Pilot
A further recommendation in the Law Commission’s report was that the government should consider establishing a drug court pilot. This recommendation was accepted by the government and the five-year Alcohol and Other Drug Treatment (AODT) Court pilot commenced in Auckland in November 2012. According to the Ministry of Justice,
[p]eople who are selected for the AODT Court and agree to take part will have their case put on hold prior to sentencing to allow them to enter an intensive treatment programme for their AOD dependency (or moderate to severe addiction). This is not an easy option – the programme takes commitment and the defendant will still be sentenced for their crime. If their participation in the addiction treatment programme is successful, this can be taken into account when they are sentenced.
IV. Regulation of Psychoactive Substances
Prior to the passage of the Psychoactive Substances Act 2013, psychoactive substances could be sold in New Zealand without restriction. Due to concerns emerging regarding the adverse effects of such substances on users, the government decided to regulate the substances in a way that allows products to be developed and sold following approval from a government regulatory agency, the Psychoactive Substances Regulatory Authority (the Authority).
The first new psychoactive substance introduced in New Zealand was Benzylpiperazine (BZP) in 2000. This substance could be sold legally in the country until 2008, when it was brought under the Misuse of Drugs Act 1975 as a Class C controlled drug. Prior to this, in 2005, synthetic cannabis products had also started being sold. Following the BZP ban, other products started entering the market, leading the government to place “a series of temporary bans on products that had come to its attention.” This process involved identifying the product by its specific chemical structure and led to temporary bans on thirty-five such structures. However, once a substance would be banned, others with different chemical structures would be manufactured, creating a “cat and mouse” game between the government and the “legal high” industry.
The Law Commission’s 2011 report on its review of the Misuse of Drugs Act 1975 recommended that “[t]here should be a new regime with its own criteria and approval process for regulating new psychoactive substances.” The Psychoactive Substances Bill, which was based on the Law Commission’s recommendations, was subsequently introduced in early 2013 and was passed by the Parliament in July 2013, with a near-unanimous vote (119–1).
B. Psychoactive Substances Act 2013
The Act reverses the onus of proof for psychoactive substances, requiring importers and manufacturers, rather than the government, to show that a substance is safe in order for it to be approved. It states that any substance that has not been approved “should be prohibited, on a precautionary basis, until it has been assessed by the Authority and the Authority is satisfied that it poses no more than a low risk of harm to individuals who use it.” The Authority explains that
[l]icences must be obtained by people or businesses who wish to import, research, manufacture, wholesale and retail psychoactive substances and products.
The Act also restricts the sale of these products (when approved) to persons aged 18 years and above.
Before a product can be approved for use, the degree of harm must be assessed by the Authority on the advice of an expert advisory committee and evidence.
In addition to age restrictions, psychoactive products are subject to place-of-sale restrictions; advertising and packaging restrictions and requirements; health-warning requirements; and signage, storage, and display restrictions and requirements. The Authority may, when approving a product, impose any conditions on the approval as it thinks fit.
As required by the Act, the Authority issued a Code of Manufacturing Practice, which came into force in January 2014 and “outlines the quality control requirements for manufacturers of psychoactive substances.”
C. Offenses Under the Act
The legislation contains three infringement offenses related to a person under the age of eighteen buying or possessing a psychoactive substance, including an approved product; supplying an approved product to a person under eighteen in a public place; and personal possession of a psychoactive substance that is not an approved product. These offenses may be subject to an infringement fee, prescribed in regulations, that does not exceed NZ$500 (about US$356). The fees are imposed by police through the issuing of infringement notices.
Other offenses in the legislation are subject to criminal sanctions. These include knowingly providing false or misleading information in an application for approval of a product, or failing to provide relevant information relating to the ingredients of the product or the effect of the product on those who use it; breaching a condition that has been imposed on an approval; knowingly providing false or misleading information in a license application; importing, manufacturing, or selling an approved product without a license; breaching a license condition; importing, manufacturing, or selling an approved product in breach of any conditions imposed by the Authority; and selling or supplying (or offering to sell or supply) a psychoactive substance that is not an approved product, or possessing such a substance with the intent to sell or supply it to any person.
D. Implementation of the Act
Following the passage of the Act, there was an interim phase during which “a number of importers, manufacturers, wholesalers and retailers were granted interim licences, and some products were given interim approvals, and were subsequently followed up to see if they were meeting their licence conditions and that their products were not causing adverse reactions.” In May 2014, amendment legislation was passed that resulted in all approvals and licenses being revoked, and placed a moratorium on processing applications for approvals and licenses until regulations came into force. Therefore, it became illegal to possess and supply all psychoactive products.
Three sets of regulations under the Act came into force in November 2014. The Psychoactive Substances Regulations 2014 allow for “product approvals and licences for importing, research, manufacturing, and sale of unapproved psychoactive substances.” The Psychoactive Substances (Fees and Levies) Regulations 2014 contain the fees for product approvals and license applications, as well as annual levies for holding such approvals and licenses. This includes, for example, an application fee for approval of a psychoactive product of NZ$175,000 (about US$124,675), an annual levy of NZ$88,000 (about US$62,710) for a successful applicant, and a fee of NZ$19,000 (about US$13,540) for an application for a license to manufacture psychoactive substances.
Finally, the Psychoactive Substances (Infringement Fees and Form of Notices) 2014 “set out the fee for infringements of the Act (specifically for breaking the age restrictions when supplying, buying and possessing of psychoactive substances, and for personal possession of a psychoactive substance that is not an approved product).” This instrument includes a requirement that the infringement notices state that the fee must be paid within twenty-eight days, and for a reminder notice to be sent out that requires payment within twenty-eight days after service of that notice. If the fee is not paid the person becomes liable to pay a fine and court costs. The infringement fee specified for each of the three infringement offenses listed above is NZ$300 (about US$214).
There are currently no approved psychoactive products. In fact, no applications for product approvals have been received since the full regulatory regime came into effect in November 2014. The Authority’s website indicates that this is due to new rules, contained in the 2014 amendment legislation, that “prohibit the use of animal testing for the purposes of assessing whether a psychoactive substance should be approved.” The Authority further states that, for this reason, “it is unlikely that there will be any approved products for at least the next three years.”
Prepared by Kelly Buchanan
Chief, Foreign, Comparative, and
International Law Division I
 Misuse of Drugs Act 1975, http://www.legislation.govt.nz/act/public/1975/0116/latest/whole.html, archived at https://perma.cc/D94E-KNEC.
 Id. s 3A.
 Id. sch 1.
 Id. sch 2.
 Id. sch 3. See also Illicit Drugs – Offences and Penalties, New Zealand Police,http://www.police.govt.nz/ advice/drugs-and-alcohol/illicit-drugs-offences-and-penalties (last visited June 27, 2016), archived at https://perma.cc/XU8D-283N.
 National Drug Police 2015 to 2020, Ministry of Health, http://www.health.govt.nz/publication/national-drug-policy-2015-2020 (last updated Sept. 7, 2015), archived at https://perma.cc/5JVP-VSJL.
 Inter-Agency Committee on Drugs, National Drug Policy 2015 to 2012, at 3 (Ministry of Health, Aug. 2015), http://www.health.govt.nz/system/files/documents/publications/national-drug-policy-2015-2020-aug15.pdf, archived at https://perma.cc/D72N-EENZ.
 Eric Frykberg, Appetite for Cannabis Decriminalisation Limited, RNZ (Mar. 30, 2016), http://www.radionz.co.nz/ news/political/300255/appetite-for-cannabis-decriminalisation-limited, archived at https://perma.cc/7XZW-C4GC.
 Misuse of Drugs Act 1975, s 7(2)(b).
 Psychoactive Substances Regulatory Authority: Home, Psychoactive Substances Regulatory Authority, http://psychoactives.health.govt.nz/home (last updated Apr. 22, 2016), archived at https://perma.cc/6495-DRHT. See generally Kelly Buchanan, New Zealand: Psychoactive Substances Bill Proposed, Global Legal Monitor (Law Library of Congress, Mar. 5, 2013), http://www.loc.gov/law/foreign-news/article/new-zealand-psychoactive-substances-bill-proposed/, archived at https://perma.cc/2N33-A8LR.
 Psychoactive Substances Act 2013, http://www.legislation.govt.nz/act/public/2013/0053/latest/whole.html, archived at https://perma.cc/T8BV-L635.
 Cannabis and the Law, New Zealand Police, http://www.police.govt.nz/advice/drugs-and-alcohol/cannabis-and-law (last visited June 24, 2016), archived at https://perma.cc/S7EA-92YH.
 New Zealand Police, Police Adult Diversion Scheme Policy 13 (Jan. 2016), http://www.police.govt. nz/sites/default/files/publications/adult-diversion-scheme-policy.pdf, archived at https://perma.cc/X7F6-P6BW.
 About the Adult Diversion Scheme, New Zealand Police,http://www.police.govt.nz/about-us/programmes-initiatives/adult-diversion-scheme/about (last visited June 27, 2016), archived at https://perma.cc/6WN8-XEKW.
 New Zealand Law Commission, Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975, at 30 (R73) (NZLC R122, Apr. 2011), http://www.lawcom.govt.nz/sites/default/files/projectAvailable Formats/NZLC%20R122.pdf, archived at https://perma.cc/G2PP-F6CG.
 Id. at 31 (R79).
 Id. at 37 (R141 & R141).
 Press Release, Simon Power & Georgina te Heuheu, Drug Court Pilot Announced for Auckland (Oct. 19, 2011), https://www.beehive.govt.nz/release/drug-court-pilot-announced-auckland, archived at https://perma.cc/6A5V-D46X.
 Alcohol and Other Drug Treatment (AODT) Court Pilot, Ministry of Justice, http://www.justice.govt.nz/ courts/district-court/alcohol-and-other-drug-treatment-aodt-court-pilot-1 (last visited June 27, 2016), archived at https://perma.cc/Q3ML-E5TR.
 Id. See also Information for Participants: Alcohol and Other Drug Treatment Court Te Whare Whakapiki Wairua, Ministry of Justice,http://www.justice.govt.nz/courts/district-court/alcohol-and-other-drug-treatment-aodt-court-pilot-1/information-for-participants (last visited June 27, 2016), archived at https://perma.cc/3TPA-4LBL.
 Background to the Act and the Regime, Psychoactive Substances Regulatory Authority, http://psychoactives.health.govt.nz/psychoactive-substances-act-2013/background-act-and-regime (last updated Jan. 20, 2015), archived at https://perma.cc/PG6X-NAY4.
 Psychoactive Substances Act: Overview, NZ Drug Foundation (May 7, 2014), http://www.drugfoundation. org.nz/psychoactive-substances-bill/history, archived at https://perma.cc/9624-655P.
 Misuse of Drugs Act 1975, sch 3, pt 1, cl 2, inserted by the Misuse of Drugs (Classification of BZP) Amendment Act 2008.
 Psychoactive Substances Act: Overview, supra note 25.
 New Zealand Law Commission, supra note 18, at 23 (R2).
 Psychoactive Substances Bill, New Zealand Parliament,https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/00DBHOH_BILL12021_1/psychoactive-substances-bill (last visited June 28, 2016), archived at https://perma.cc/DHW8-5Q84.
 A “psychoactive substance” is defined as a “substance, mixture, preparation, article, device, or thing that is capable of inducing a psychoactive effect (by any means) in an individual who uses the psychoactive substance.” Psychoactive Substances Act 2013, s 9(1). Controlled drugs specified under the Misuse of Drugs Act 1975 are excluded. Id. s 9(3)(a).
 Psychoactive Substances Act 2013, s 4(e).
 Psychoactive Substances Act 2013, Psychoactive Substances Regulatory Authority,http://psychoactives. health.govt.nz/psychoactive-substances-act-2013 (last updated Oct. 21, 2014), archived at https://perma.cc/3UAR-6NUT.
 Psychoactive Substances Act 2013, ss 48–51.
 Id. ss 52 & 53.
 Id. ss 54–59.
 Id. s 60.
 Id. ss 61 & 62. See generally id. s 6 (“Overview”).
 Id. s 38.
 Code of Manufacturing Practice, Psychoactive Substances Regulatory Authority,http://psychoactives. health.govt.nz/industry/code-manufacturing-practice (last updated Oct. 31, 2014), archived at https://perma.cc/ BM8B-V33G.
 See Psychoactive Substances Act 2013,s 72.
 Id. s 48.
 Id. s 50.
 Id. s 71.
 Id. s 72.
 Id. s 74.
 Id. s 41.
 Id. s 42.
 Id. s 24.
 Id. ss 25–27.
 Id. s 28.
 Id. s 42.
 Id. s 70.
 Background to the Act and the Regime, supra note 24.
 Psychoactive Substances Amendment Act 2014, sch, http://www.legislation.govt.nz/act/public/2014/0024/ latest/whole.html, archived at https://perma.cc/88DN-GT2A.
 Id. See also Additional Revoked Interim Product Approvals Information,Psychoactive Substances Regulatory Authority,http://psychoactives.health.govt.nz/industry/licensees-approved-products/additional-revoked-interim-product-approvals-information (last updated Feb. 4, 2015), archived at https://perma.cc/3E4N-FD7P. For a list of interim product approvals that have been revoked or refused, see Interim Product Approvals, Psychoactive Substances Regulatory Authority,http://psychoactives.health.govt.nz/licensees-approved-products/product-approvals-refused-and-revoked (last updated Mar. 5, 2015), archived at https://perma.cc/CJE8-TC9Q.
 Press Release, Tony Ryall, Psychoactive Substances Amendment Act Passed (May 6, 2014), https://www.beehive. govt.nz/release/psychoactive-substances-amendment-act-passed, archived at https://perma.cc/AY4F-FVBM.
 Psychoactive Substances Regulations 2015, http://www.legislation.govt.nz/regulation/public/2014/0243/ latest/whole.html, archived at https://perma.cc/X8EZ-YSTD.
 Psychoactive Substances Act 2013, supra note 33.
 Psychoactive Substances (Fees and Levies) Regulations 2014, http://www.legislation.govt.nz/regulation/ public/2014/0244/latest/whole.html, archived at https://perma.cc/RG7Q-UM3Y.
 Id. sch 1.
 Psychoactive Substances (Infringement Fees and Form of Notices) Regulations 2014, http://www.legislation.govt. nz/regulation/public/2014/0245/latest/whole.html, archived at https://perma.cc/JNF9-EAY8.
 Psychoactive Substances Act 2013, supra note 33.
 Psychoactive Substances (Infringement Fees and Form of Notices) Regulations 2014, sch (Form 1 & Form 2).
 Id. cl 4.
 Product Approvals, Psychoactive Substances Regulatory Authority,http://psychoactives.health.govt.nz/ industry/licensees-approved-products/product-approvals (last updated Feb. 4, 2015), archived at https://perma.cc/ GPR8-GSWG.
 Psychoactive Substances Amendment Act 2014, ss 4, 6 & 7.
 Psychoactive Substances Regulatory Authority: Home, supra note 11.
Last Updated: 07/28/2016