The MoDA 1975 has to go part 3: How it’s going

In our last couple of blogs we looked at the history of the Misuse of Drugs Act 1975 and established that it’s mostly based on a mix of well-meaning but ignorant assumptions about the harms of drugs, moral crusading, cultural imperialism, and straight out racism.
Read Part 1: How it started
Read Part 2: The War on ‘Drugs’

In this one, we’ll have a look at the Act itself, what it’s supposed to do, and whether or not it actually does it.

The Act doesn’t have a stated purpose, however Section 3A – Classification of Drugs – says:
“The classification of a drug under this Act is based on the risk of harm the drug poses to individuals, or to society, by its misuse; and accordingly—

1. drugs that pose a very high risk of harm are classified as Class A drugs; and
2. drugs that pose a high risk of harm are classified as Class B drugs; and
3. drugs that pose a moderate risk of harm are classified as Class C drugs.

These are meant to map onto the UN Schedules that we talked about in the first blog.

It’s pretty clear that whoever wrote this thought that the legislation and resulting classifications were going to reduce the risk of harm to individuals and society by their misuse – presumably by stopping people from obtaining, using, or supplying drugs through enforcement of the criminal sanctions the Act outlines.
But has it actually done that?

Nope.

According to the NZ Drug Foundation’s State of the Nation 2022, 15.3% of adults in Aotearoa will admit they use cannabis, currently Class C in the MoDA. That’s around 1 in 6 or 1 in 7 people, or 610,300. Which is more people than play rugby or ride horses (two other popular recreational activities).

In fact, nowadays more people use cannabis in this country than smoke cigarettes. This figure fluctuates a little but has not really changed in the last 15 years, so we think it’s pretty safe to say that the MoDA has not stopped, or really even reduced, use of our most popular illicit drug. Self-reported numbers of people using other drugs are also stable. While wastewater testing data only goes back to 2019 and shows some quarterly fluctuations, these numbers are also stable.

It’s more or less the same all over the world, and this demonstrates quite clearly that prohibiting drug use doesn’t in fact stop drug use, or really even slow it down. Even in countries where drug use incurs the death penalty, people still seek, obtain, and use drugs. It has been shown over and over again that when something people want is banned, they find a way to get it regardless. Aotearoa is no exception.

Since the MoDA came into effect we have developed a large and lucrative unregulated, untaxed market for illicit drugs – and because there is money to be made and no regulation, much of this market is cornered by organised crime groups who have brought with them increased community tension, gang violence, and associated crime.

Enforcement efforts to stop this have not only cost the taxpayer increasing amounts of money ($94 million more in the 2022 budget) for seemingly no effect, but they have also driven what’s known as the Iron Law of Prohibition – which states that as law enforcement becomes more intense, the potency of prohibited substances increases as manufacturers and distributors seek to minimise the volume of product needed to maximise profit.

This happened in the years of Alcohol prohibition with the growth of bathtub gin and other distilled brews. It is widely accepted that increases in use of both crack cocaine and methamphetamine in the US in 1980s and 1990s are the result of authorities cracking down on the less-potent amphetamines (speed) and powder cocaine. We’ve seen it happen in Aotearoa too, with synthetic cannabinoids – those that arrived after prohibition have been much more potent, and while there were no deaths prior to them being banned they have now killed over 70 people.

And there’s the problem KnowYourStuffNZ exists to address – the fact that there is no quality control and no Consumer Guarantees Act in the illicit market, so people buying drugs have no real idea what they’re taking. This puts people at risk of overdose, illness, and death.

The eutylone problem in the summer of 2021 was a result of this, along with the people hospitalised in Wairarapa last year who thought they were taking meth or coke but were in fact taking fentanyl, and the death in September 2023 from metonitazine sold as oxycodone. Every hospitalisation or death from an unknown substance costs us money and life.

Most drug harm doesn’t actually come from the substance, but how we treat those that take it

Then there’s the part where people who use drugs are criminalised and punished. A recent study from Otago University that ranked drugs according to harm identified that:

“A significant proportion of drug harm arises from the legal status of the drug, rather from the drug itself. This includes harms to the drug user such as loss of employment and relationships, along with harms to others relating to crime and family adversities.”

Read the full article: The New Zealand drug harms ranking study: A multi-criteria decision analysis at Sage Journals

The vast majority of drug use doesn’t result in direct harm to the user, however anyone who uses a substance classified in the Misuse of Drugs Act is vulnerable to arrest, conviction, or imprisonment – which can lead to impacts on their job, their family life, their home, and their ability to travel. This can be devastating, and hugely out of proportion when compared to the risk of harm from the drugs themselves – especially since the classification system does not accurately reflect the risk of harm despite claiming it does.

There is a high risk of criminal sanctions ruining someone’s life if they admit they’re using illicit drugs. Especially for Māori, because let’s not forget that the enforcement of nearly all our laws are biased against minorities (we talked about how race was a fundamental part in the War on Drugs and its global effect on legislation in The MoDA has to go Part 2, so we won’t dig into it here.) So it’s unsurprising that those who do have problems with drug use are afraid to come forward and seek help. In fact, this was identified very clearly as a barrier in the government’s own Inquiry into Mental Health and Addiction in 2018, resulting in the Inquiry finding unequivocally that “New Zealand’s approach to drugs needs to change.”

And yet..
Much of our drug treatment is based around abstinence with sanctions: You must demonstrate you haven’t been taking drugs through regular urine tests in order to continue to receive treatment. We’ve already explained in depth in other posts why we think that this kind of drug testing is unfair and ineffective, but here’s a quick recap:

1. The chance for a false positive is too high if you’re taking most kinds of prescription medications for anxiety, ADHD, allergies and hayfever, pain relief, gastric problems, heart problems, and a slew of other health conditions.
2. The kind of urine tests done by most clinics aren’t accurate enough to pick up the difference between passive consumption (you being in a room with someone smoking weed or methamphetamine and being exposed to their second hand smoke) and active consumption (you hitting whatever pipe takes your fancy). If it’s in your pee, too damn bad.
3. We have cannabis and ketamine on prescription now. These will absolutely make you fail your drug test.
4. Having to take a leak with someone watching you without your C.R.I.S.P-style consent is weird and distressing.

Read us getting spicy about the legality of workplace drug testing and medicinal cannabis
Read us getting spicy about roadside drug testing
Read us getting spicy about drug testing in general
Read our take on the different models of consent

While many clinics do not immediately jump to sanctions such as withdrawal of treatment or referral to the criminal justice system in response to a “failed” urine test, these results are recorded and can lead to further stigma, more labelling, and future issues for the person seeking help.

“Drug-seeking” and why it’s BS

People who are honest with their doctor about their drug use or who seek treatment for support services are at risk of having this status attached to their medical record, permanently. This can affect future contact with health services, for example when people in pain are refused medication because it’s seen as “drug seeking.”

We’ve had a look at what the medical community views as drug-seeking behaviour. At first all we could find was an article from 2008 that gave us the definition.

‘Drug seeking behaviour is defined as the false reporting of symptoms to obtain a prescription or requesting a drug in order to maintain dependence.’

This didn’t really give us much to go on in terms of what drug-seeking behaviour is actually defined by. Then we found the Medical Council of New Zealand’s Good Prescribing Practise from 2020 which said that doctors can’t prescribe medication for

• Someone they think wants the medication for non-therapeutic purposes
• Someone they think will supply the medication to other people
• A “restricted person”

‘What is a restricted person’, you ask? The guts of it is that a Medical Officer of Health can issue a notice that makes a person “restricted” if they’re satisfied that “the person has been obtaining a controlled drug over a prolonged period and is likely to seek further supplies of a controlled drug, or prescriptions for the supply of a controlled drug.”

So basically anyone they think has a long term history of drug use and isn’t trying to stop, or anyone they think might try to sell their prescription drugs. In other words, someone they think might engage in “drug seeking.” But ‘drug-seeking’ itself has no real definition, so it’s all completely subjective and depends on the doctor.

So if you’ve got a history with drugs (remember how once your name is in the system it never goes away?), and then you get sick or start having chronic pain, and your doctor doesn’t believe that your symptoms are real, you’re shit out of luck.

We’ve heard from people who’ve been to the doctor and had serious conditions such as cancer or seizures overlooked because the doctor was more concerned with their drug use than their health. We know that one of those people has since died from their cancer. But at least they didn’t get any of those naughty painkillers they apparently didn’t need, right? So much for Do No Harm.

This “drug-seeking” label also encourages people to lie to their doctor and hide the fact that they’re taking illicit drugs. On the surface it might not be so bad, but when you consider that standard painkillers like Tramadol react negatively with most recreational drugs, it’s actually pretty high risk.

Because of this stigma, people can be too scared to come forward for help if they feel like their drug use is getting on top of them. This can allow what may have been a small manageable problem to get completely out of hand with high risks to both physical and mental health, with nobody there to help.

Dealers aren’t the only ones making bank off the MoDA

And finally, there is the large and lucrative industry that has grown up around testing people for the presence of drugs based around employers’ unsupported belief that it improves workplace safety. Worse, in 2018 it was found that unscrupulous entrepreneurs had taken advantage of fears around methamphetamine to scam home buyers, landlords, and the government out of millions of dollars by offering to test homes for meth residue – and offering a cleaning service for those that tested positive. The residue amounts that triggered a positive result were found to be well below any level that might be even close to risky, and the practice was shut down – but not before hundreds of people were evicted from their homes because of it.

The MoDA is more trouble than it’s worth.

It’s also worth considering that every drug problem we have in Aotearoa at the moment has arisen since the MoDA came into effect – which suggests that it’s at best had little to no impact on the levels of drug use or drug harm here, and at worst is actively creating problems.

So we have a law that is based on the premise that it’ll reduce use which will somehow reduce harm, that:

• Has not reduced either use or harm in the last 48 years
• Has led to the development of a lucrative market governed mainly by organised crime
• Costs the country hundreds of millions of dollars annually in enforcement for no discernible effect
• Has created a whole new set of harms, many of which outweigh the harms the law is attempting to address
• Is, and always has been, applied more harshly to Māori, other ethnic minorities, young people, and the poor.

When we look at it in terms of what the MoDA is supposed to do vs what it is actually doing, it’s really obvious that it’s not fit for purpose.

We as a country have a choice – we can carry on throwing more and more money and the lives of our citizens into the black hole of drug prohibition in the hopes that this outdated, ill-thought-out, and ineffective piece of legislation will suddenly start to work, or we can rethink our approach.

In our next blog, we’ll talk about what the options could be if, like us, you’d like to see this legislative dumpster fire yeeted into the sun.