Amicus Curiae: On Auckland Council’s Proposed ‘Legal Highs’ Policy

Sebastian Hartley

When I last discussed ‘legal highs’ in May 2014, I predicted that the Psychoactive Substances Amendment Act 2014 would not only remove all legal highs currently on sale, but, because of the ban it introduced on animal testing of legal highs, would effectively prevent any legal high from ever being approved for sale, since animal testing is a “necessary and important component”[1] of gaining certification.[2] Whether that prediction was accurate will be revealed sometime around June this year, when the Ministry of Health publishes the certification guidelines.

However, today’s Herald article on the Auckland Council’s plan to regulate any legal high outlets that do open has shown that my prediction that the ban would put this issue to bed was wrong. Legal highs have lost none of their potency as a flashpoint for apprehension about their impact on communities, despite having been off the shelves for nearly a year now.

As with any other debate around the availability and supply of controlled substances, the debate around psychoactive substances turns on the fundamental question of policy of where to strike a balance between respecting the autonomy of individuals and the legitimate grounds for state paternalism in the case of allowing individuals to ingest substances that, whilst they provide enjoyment, may well also cause individual to not only harm themselves, but harm others, and to require financial and social community support. What, essentially, is the limit of individual autonomy?

More specifically, in this case, it forces us to ask what burden of social responsibility those who seek to profit from selling potentially harmful substances should bear. Is it legitimate for the state to restrict their ability to trade in, and therefore profit from, substances that people apparently want to buy and, if so, to what extent?

These tensions are apparent in the debate over the Auckland Council’s use of its power under the Psychoactive Substances Act 2013 to restrict the proximity of retailers of synthetic highs to vulnerable communities, schools, and treatment centres for those struggling with mental health issues or substance abuse. Whilst police and other groups have stated their satisfaction with the Council’s proposals in limiting the impact of substances on vulnerable communities in outer suburbs, they say that the recommendations do not go far enough in limiting the potential impact of a combination of alcohol and legal high consumption, particularly in the inner city; not accepting the Council’s position that such measures would be too restrictive for retailers.

Where is the appropriate place to strike a balance? Who’s burden is it to bear? I don’t know. That is a question for society at large, and most likely Parliament, to debate fully before any decision is made, as it has broad implications for the relationship between the individual and the state. It is for that reason that I am, glad, in hindsight, that my prediction that the issue would be put to bed by the ban was wrong, and applaud the Auckland Council for having undertaken a five day process of hearings covering 1454 submissions from a range of key stakeholders in designing this policy.

Regardless of whether or not Auckland Council has got the balance right, which Councillor Linda Cooper, who chaired the committee that designed the policy, concedes we cannot judge without more evidence, I am glad that the debate is being taken seriously, even if the current generation of legal highs never returns to the market, given the harms such substances can cause, particularly in already deprived communities. Ultimately, the first step towards resolving any question is to ask it.

[1] Minister of Health Tony Ryall “Psychoactive Substances Amendment Bill passed” (press release, 6 May 2014).

[2] Psychoactive Substances Act 2013 (as amended), ss 12(1), 12(2), 33(3).

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