Legalwise News NZ Editor Caroline Tang interviewed Auckland barrister Tony Beach, who has almost 20 years’ experience in criminal law, about what New Zealand law might look like if cannabis was legalised.
Mr Beach argues that legalisation of cannabis is inevitable. “New Zealand, historically, has often led the way on social issues, but in this respect we seem to be trailing behind,” he adds. The Government has promised to hold a referendum on the legalisation of cannabis as part of the coalition deal it struck with the Green Party.
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Legislation to legalise cannabis
Mr Beach said legalisation of cannabis could be as simple as removing it from the schedule of controlled drugs under the Misuse of Drugs Act, although there were a wider range of factors to consider.
“But that would allow for unregulated possession and supply, which is unlikely to be an acceptable outcome for the public. Another option would be to allow for possession and cultivation of small amounts for personal use but regulating the availability and supply, in the same way we do with alcohol,” he said.
“It is a matter of regulation, as with alcohol. Legalisation would allow for personal use, for example, in your own home; those with problem use of cannabis could seek help from appropriate health providers; suppliers and growers would be subject to regulatory oversight; realistic educational programmes would address the risks of consumption.
“I would imagine the new legal framework would look very similar to alcohol and tobacco regulation, albeit with limits on quantity. Revenue for the government is a plus but another, arguably more important one, is reducing the influence of gangs and organised crime in the supply and distribution of drugs.”
Law reform or health problem?
Mr Beach said he saw the legalisation of cannabis would mean young people were no longer stamped with a black mark against their names for the rest of the lives, and authorities could no longer use the drug as a veiled excuse for searches.
“As a criminal defence lawyer, I see the issue through the lens of the criminal justice system. Many young adults are prosecuted for small amounts of cannabis or possession of a utensil for smoking cannabis and are burdened with those convictions for the rest of the lives,” he said.
“The Criminal Records (Clean Slate) Act, contrary to the title, doesn’t erase criminal convictions; it simply allows for eligible individuals to conceal convictions in certain circumstances.
“As well, the State has broad powers of search and surveillance which can be invoked using cannabis as a pretext. Legalisation of cannabis will reduce the intrusive power that the police have to stop someone and search them or enter without warrant into someone’s home.
“Overseas, cannabis prohibition laws have disproportionately affected minorities and I expect the same is true here. At the same time, substance abuse figures large in the criminal justice system and cannabis plays a part in that, though to a lesser extent than alcohol or more harmful drugs such as methamphetamine. So, it is a health issue too.”
Legalisation and enforcement
Mr Beach said criminal law practitioners would still see clients on cannabis-related charges if the drug was legalised.
“Regulation would bring its fair share of enforcement: Canada’s recent legalisation will allow for personal possession of up to 30 grams of cannabis and cultivation of up to four plants at home,” he said. “So, there will still be enforcement of cannabis drug laws, just different kinds of charges and different kinds of penalties.”
Retrospectivity
Mr Beach said New Zealand would need to consider whether to retrospectively apply any legislation to legalise cannabis.
“I imagine those with convictions for possession of small amounts of cannabis would react with mixed feelings, pleased that young people aren’t being criminalised as they were, but feeling wronged that they are saddled with criminal convictions for something that had become legal,” he said.
“Canada is ruminating on the issue of pardoning those with criminal convictions for cannabis, which run into the hundreds of thousands; NZ would most likely have to consider the same question post-legalisation.”
Conclusion
Mr Beach said legalisation of cannabis was “inevitable”. “Other jurisdictions, such as Portugal, Uruguay, Canada, US states such as California, have already taken the step. NZ historically has often led the way on social issues but in this respect we seem to be trailing behind,” he said.
“There is certainly a range of views on the subject; some criminal defence lawyers I know strongly oppose legalisation.”
Tony Beach has represented hundreds of clients in Courts throughout New Zealand. Tony is a graduate of the Universities of London and Edinburgh and holds the following degrees: LLB (Hons), MSc, BA (Hons). He was admitted to the Bar in September 2000 and has dedicated himself to litigation since, regularly advocating for clients in Waitakere, Auckland, North Shore and Manukau District Courts, as well as the High Court.
Tony represents both legally aided clients as well as private clients. He is also a duty lawyer at North Shore District Court. Tony’s criminal cases have included: Property offences: These include, for example, burglary, theft, receiving or obtaining by deception charges. Violence offences: For example, male assaults female or common assault, possession of offensive weapons. Drugs charges: Possession of drugs or utensils, such as a pipe, under the Misuse of Drugs Act. Contact Tony at tonyjohnbeach@xtra.co.nz
