Drug and Substance Checking Legislation Act 2020
The law has changed to let harm reduction organisations like us check substances at events openly and without fear of prosecution. The most important changes for us are:
Events can be more public about having us on site (Section 12 1A)
It’s no longer considered an offence for people to have drug checking facilities at their event. They can book organisations like KnowYourStuffNZ alongside medics as part of their health and safety measures. They can also do publicity-based things like put drug checking in their event guides so people at the event know where to find the testing tent and what the testing hours will be. As drug checking is now legal, we can look forward to drug harm reduction measures at more events, and more people making informed decisions about their safety.
This also means that if we do find something very dangerous, we can make a public announcement to the event organisers and people at the event we found it at. We can have a more immediate effect by getting the message out faster to the people who need to hear it most.
We can handle illicit substances (Section 35DB 1(g))
This means that if we find a new or dangerous substance at an event we can take it to an approved lab for further testing. It doesn’t count as possession of a controlled drug. This is a massive step forward because a lot of our time is spent at festivals up and down the country, and often in the middle of nowhere. We spend a lot of time being miles from a lab, so bringing new or dangerous substances in from the field for further examination was legally perilous for us. This change means that we can build a more complete picture of the substances in the country, and give more effective harm reduction advice.
People can give us substances to test (Section 35DD)
If you give us a sample to test or dispose of it doesn’t count as supply of a controlled drug. You won’t get in trouble for giving us the sample for testing.
How KnowYourStuffNZ had to operate before the new Bill
KnowYourStuffNZ operated within the law but our services existed in a legal grey area. Clarifying the law let services like ours operate more openly to keep people safe.
The Misuse of Drugs Act and KnowYourStuffNZ
KnowYourStuffNZ operates within the law – in this case the Misuse of Drugs Act 1975. We did not, for instance, handle illicit substances. Our clients had to do all of the sample preparation and handling themselves. We simply tested what they have put in front of us, interpret the results, and provide harm reduction information. All samples are destroyed after testing.
This did limit our service. Unlike testing services in the UK, we couldn’t take and hold a sample for analysis. We had to do all of our tests with our clients present. This means they get an immediate result and their involvement in the testing means they are likely to trust the results. However, it did limit the time we have to consider results. Similarly, if we couldn’t identify a substance, we couldn’t take that substance to a lab – we would have been temporarily in possession and possession is a crime.
Within those constraints, there is nothing within the former Act explicitly allowing or prohibiting our service. However, there is a problem…
The Problem – Section 12 and Festival Organisers
It is illegal to provide a venue for people to take drugs.
Section 12 of the Act makes it a crime to “knowingly permits any premises … to be used for” crimes against the Misuse of Drugs Act. What does this mean in practice? Does having a drug testing service at a event meant that the event organiser was permitting their event to be used for taking drugs? We don’t know and that was the legal grey area.
No-one has yet been prosecuted for this in New Zealand, but being found guilty under Section 12 could have lead to ten years in prison for an event organiser. Understandably, many festival organisers are not willing to take this risk.
When we were at events, we worked with the event organisers to be as discreet as they requested us to be. This means our signage was not explicit and our service was generally advertised by word of mouth. If, for instance, we find particularly harmful substances, we couldn’t publicise that widely amongst event-goers. This is frustrating and it limits our reach and impact. However, we did not want to put event organisers at any more legal risk than is necessary.
Despite Section 12, event organisers also have a duty of care and a legal responsibility under the Health and Safety at Work Act 2015 to take all practicable steps to keep people safe at events. Harm reduction approaches including pill testing are a cost effective and proven step.