The Politics of Drug Law Reform, with Chlöe Swarbrick

Written by Sally Ward (she/her)

2020 is infamous in a lot of ways, and maybe as we look back it will be remembered as the time we almost legalised cannabis. 

Salient recently met with Chlöe Swarbrick to discuss where we are at with drug law reform. She has been advocating for reform for the best part of four years. It was bittersweet to be asking questions about the issue, given the closeness of the referendum result.

A quick autopsy on the referendum:

Chlöe stated that she “was the only vocal political advocate for legally controlled cannabis”. We asked why that was the case, and it seems to be about optics. Chlöe jokingly explained that 

Photo:  Framed NZ Herald cartoon of Chlöe smoking a bong hanging in her office.

politicians didn’t want to end up in The NZ Herald smoking a massive bong, which is exactly where she ended up: the Herald published a political cartoon of Chlöe doing just that, 

which she now has framed near the door of her office. Non-medicinal cannabis is still hugely stigmatised, and maybe that’s part of the problem. 

Chlöe has a lot of fans, but also a lot of critics. “I am critiqued constantly by folks who say I am way too word intensive when I talk about drug law reform.”

In a recent debate, Simon Bridges called her approach to drugs “boring” and that she only has one agenda—“to get more drugs on the street”.

Chlöe stated that “people use politicians as proxies for what they should believe in or whether they should trust something”.  This is something that Chlöe says has led to “some valid, interesting, or however you want to characterise it, criticism of the position that [the] PM has taken.” Jacinda Ardern did not state her position until after the referendum, although she did state her position on the End of Life Choice Act.

The New Zealand Medical Association, which represents the collective views of doctors, announced opposition to the Bill. The board retracted this statement, changing their position to neutral, two weeks before voting time came around, and when early voting had already begun. 

Where are our drug laws at?

Chlöe reiterated her overall position on reform: 

“The key thing that I’ve always been pushing for since I got down the rabbit hole of drug law reform has been a complete repeal and replacement of the Misuse of Drugs Act.”

Chlöe says that the Misuse of Drugs Act is an “ad hoc instrument of law that is not working very well”.

Chlöe lists off the changes that have been made here and there. In 2019 the Amendment was made to affirm the use of police discretion when dealing with possession of cannabis. There has also been the Amendment allowing for drug testing at festivals, and the regulation of medicinal cannabis in 2019.

When talking about police discretion, Chlöe sees that “the movements of the police in different areas applying discretion showcase the failure of a law that kind of wants to take a health-based approach but kinda not.” 

Chlöe believes that the landing of police helicopter searches earlier this year “shows a willingness from the top” to do things differently, but that more needs to be done.

We see “next to no prosecution or criminalisation or even detainment of Pākehā when it comes to the use of cannabis, but is often the first thing, tied up with a number of other charges, that results in young Māori men getting into the criminal justice system.”

“The facts remain. The issue of cannabis in this country is still alive.”

As for the referendum, Chlöe believes that “some people have taken the failure of that referendum as meaning that we can’t talk about this as an issue anymore.”

“I think it’s important to qualify that the literal question was ‘do you support the cannabis legalisation and control bill?’ It’s very specific and very narrow. Do you support the implementation of this bill?”

Is there an opportunity to decriminalise cannabis?

A poll (based on research conducted by the Helen Clark Foundation) released in March of this year revealed that 49% of the New Zealand public support the legalisation of cannabis, and a further 20% support decriminalisation.

There is a clear appetite for drug law reform—whether or not we can achieve that reform is up in the air. 

There are discussions of what decriminalising might look like. Chlöe confirmed that she is working on something in this area and wants “a cross-party bill”.

This term there has been a change to standing orders. Standing orders are the rules that determine the procedure for the House and its select committees. The change to standing orders means that a members bill can skip the ballot, known as the biscuit tin. If 61 non-executive members sign up to vote for it, a bill can be put on the agenda. The Executive are ministers who are responsible for the running of Government, meaning the Bill would need the support of back bench MPs to get in on the agenda. 

Chlöe does the numbers: “for the 10 Green MPs, only 8 of us would count, so, if you take into account all of the back bench labour MPs (and because it would be a conscious vote not all of them would be in favour vote of it), you take about half of ACT given what they publicly stated around their position on legalisation of cannabis...and then you add the two Māori Party MPs that have expressed their support for it...we still need about 10 National MPs.”

“The big problem is whether National is going to enable their MPs to vote on conscience. I can’t say all too much about my conversations with National so far, but for the fact that they have been incredibly frustrating and National does not have a history of enabling genuine conscience votes on things like cannabis.”

“Get the Nats to use their conscience. The National Party will say that abortion is a conscience issue, that alcohol is a conscience issue, but for some reason or another, cannabis isn’t.”

“The best way for students, for anybody, to get this Bill onto the table is to make sure that Dr Shane Reti is not cut down on the things that he’s said publicly, which is that he thinks we need to have a conversation about decriminalising cannabis.”

“Dr Shane Reti is the Deputy Leader of the National Party, and that should mean something. He’s got his doctor credentials which loves to be wheeled out when it’s to do with COVID, but when it’s around other public health issues like cannabis should be, it’s brushed aside.” 

Salient has contacted Dr Shane Reti for comment but at the time of print we have not had a response.

Reti told Radio Waatea in late March that decriminalisation could be a good middle ground after the referendum result.

“The classical model is the Portugal model. I think we need to have a lot of dialogue on that. New Zealanders sent a very clear message on one part of the cannabis reforms and I think we need to have a lot of dialogue on that and actually see some proposals”, he said.

Is decriminalisation enough?

Calls for change are ongoing. Last week, social service and health organisations released an open letter to the Government calling for drug use to be treated as a health issue. The letter was signed by organisations including the New Zealand Medical Association, Public Health Association, Hāpai te Hauora, the Māori Law Society, and JustSpeak. 

Part of the letter reads: “While we applaud recent law changes to allow drug checking at festivals and elsewhere, we note that isolated amendments to the Misuse of Drugs Act will not provide the coherent, just and effective legislative framework that is so urgently needed. We call on you to overhaul the Misuse of Drugs Act and put in its place a system that puts health and social justice first.” 

The letter also highlighted the disproportionate impact of drug laws on Māori and Pasifika communities.

Jacinda Ardern was questioned by John Campbell about the letter on Breakfast. Ardern pointed to the use of police discretion, stating she wants police to take a health-based approach when people are found in possession of a small amount, unless it is not in the public interest to do so.

Campbell reiterated the disproportionate impacts on Māori and Pasifika: “I know an enormous amount of people who smoke dope from time to time, I don’t know anyone who’s been busted.”

Arden maintained that only 20% of cases end up in the courts.

When asked if she wanted clear legislative guidelines, Ardern said that police will have guidelines around how to enact the use of discretion. She went on to say that when they get the data back about how that’s working on the ground, “let’s have an open debate about whether it’s happening as we intend”.

Returning to our conversation with Chlöe, she highlights some positive aspects of the referendum.

“Despite the electoral failure, I think there are substantive new complexities, nuances, and a greater maturity to the greater drug law reform debate than existed three to four years ago.” This, she says, is reflected in the depth that the media reports on it. Our conversations on cannabis are maturing.

The path to a full health-based approach to cannabis and other drugs seems long. It seems that the politics of change is getting in the way of a result, despite public support and some acknowledgement between political parties that we need change. 

Finally, Chlöe explains that “the case for change is always way harder than retention of the status quo. And ironically, I think that a lot of politicians forget that doing the right thing is not always the most popular thing.”

“The bogeyman of change is far more scary than the boring reality of a legal regulated market.”