Woodhouse MichaelHon MICHAEL WOODHOUSE (National): We have heard many examples of where this Minister has been completely not over his portfolio—very superficial in nature. That speech is another excellent example of it because twice in that speech supporting the motion he said that the Health Committee recommended that the bill proceed. Now I think he used the word proceed" in the first case and "progress" in the second—that's not correct. While the select committee agreed that there should be some amendments set out the third sentence of its report then says "We were unable to agree that the bill proceed." That's where things lie.I'm going to go through why the select committee was unable to agree because it's a very very important policy and constitutional issue. The reality is that while the National Party supports clauses 1 to 5 and clause 8 of this bill as not only sensible changes but changes that my colleague Simeon Brown introduced a member's bill to do effectively the same thing only to have Labour and the Greens rail against that action—including the Minister of Justice who spent a long time in this House saying what a terrible bill it was and how it should not proceed. Next thing we know they're doing very much the same thing. So I think that's a great thing to do. We certainly approve of that progress.The National Party's concern has been with the direction for police not to prosecute for possession offences. Now that's not just for cannabis; that's for every single unlawful substance—right up to heroin methamphetamine ecstasy LSD; we can name anyone we like—this bill says they should not prosecute. Now I have been very troubled—Hon Dr David Clark: They don't back the police any more. They don't back the police like they used to.Hon MICHAEL WOODHOUSE: Well what we do back is constitutional conventions. I'm going to go through why even since the select committee has reported back I'm becoming more and more troubled not only by this bill but by a propensity for this Government to overreach in its constitutional powers.Now I want to quote from a very—Hon Dr David Clark: Police back this and the member knows the police back this. The member knows it.Hon MICHAEL WOODHOUSE: The member would be better off listening than yelling.DEPUTY SPEAKER: Can I just remind the Minister: he did have 10 minutes.Hon MICHAEL WOODHOUSE: He did. Justice Gleeson who was the Chief Justice of the High Court of Australia wrote a very good article on this very point at the start of the year. Now we all know that there are constitutional conventions that apply to the legislature the executive and the judiciary. The constabulary is actually a subset of the executive but the important tension is that police don't overextend their powers—as delegated to them by this Chamber. By the same token this Chamber should not overly extend its powers into constabulary discretion. If it doesn't like a piece of legislation if it doesn't like a part of an Act it should change that part of the Act. I see Ms Swarbrick looking very confused. Perhaps she could go back to constitutional school.He said this: "Less obvious but equally important is the need to guard against vesting in the police discretionary powers which for practical purposes may amount to powers to make law or to dispense with compliance with the law … it is not the function of the police to make the law or to decide by whom and to what extent the law is obeyed." Now we have sentencing guidelines—Darroch Ball: They already do.Hon MICHAEL WOODHOUSE: We have sentencing guidelines. Pause Mr Ball and I'll explain. Those sentencing guidelines don't go to the heart of this bill. They talk about things like: can they identify the perpetrator? What is the seriousness of the offence? Does it involve significant violence? Where there is a history of recidivism—it goes on. The Cabinet minute that approved this bill basically said "Those things could apply or there is a therapeutic approach that would be more beneficial." It doesn't add this to the prosecution guidelines. It doesn't add to the prosecution guidelines; it adds to the law. There it says "Where a therapeutic approach would be more beneficial … there is no public interest in proceeding with a prosecution."—they should not prosecute. Now the Minister articulates that as they would allow the police to consider whether a therapeutic approach would be more beneficial. They have no consideration powers. The law is now going to tell them they should not prosecute.Two really important submissions that the committee heard were firstly from Ross Bell from the New Zealand Drug Foundation when I asked him whether or not he could conceive of any perpetrator of a possession or use offence who would not benefit from a health-centred or therapeutic approach and his answer was "Of course not." in which case absolutely everybody would be immune from prosecution. Indeed if police tried the defence counsel would drive a bus through that. Herein lies the question that I have for the members on the other side because this is a definite case in a policy sense of where the left hand does not know where the far-left hand is going. The Minister said "This just codifies police discretion."; whereas Chlöe Swarbrick says "This is the biggest change to drug policy in 40 years." Both of them cannot be correct.Chlöe Swarbrick: Yes they can.Hon MICHAEL WOODHOUSE: Well we'll test that. If we are merely codifying police discretion then the words "should not prosecute" are unnecessary. Indeed frankly the whole clause is unnecessary. So I'm going to test that because in the committee of the whole House the National Party will introduce an amendment to clause 6 which will remove those words "should not prosecute" and confirm the words the Minister in his second reading speech has just said and that is "we allow the police to consider". They will use their discretion. They will not be directed by this House about how they behave on a day to day basis because there is no doubt—Hon Shane Jones: Scaremongering—alarmism.Hon MICHAEL WOODHOUSE: Well that member says it's alarmism but he knows that his own caucus are not happy with this. The de facto decriminalisation of drug possession is not core New Zealand First whakapapa—he doesn't like it. He said he doesn't like it but they've gone very quiet. I'm not going to even consider what quid pro quo they've got for holding their Noes and supporting this bill but I bet it's something. We'll test that. If they're right—if this is no change to current police practice—then it won't hurt to put in a better clause which reflects more closely current police practice. Then we'll know; the outcome of that vote will decide whether the left hand or the far-left hand prevails in this matter because I think Chlöe Swarbrick is closer to the truth.She knows—and Crown Law have confirmed it in their advice on what the Cabinet minutes said—that it doesn't matter what the prosecution guidelines say it doesn't matter the seriousness of the offending it doesn't matter the recidivism or even the refusal—the reluctance by the offender—to even consider a therapeutic approach. That's not what the law says. The law simply says "Would they benefit from a health-centred or therapeutic approach?" If that's the case police should not prosecute. That is the very definition of this House interfering in police behaviour. It is the very definition of de facto decriminalising. So I look forward to debating those clauses in the committee of the whole. We would like to support this bill. We support clauses 1 to 5 and clause 8 but we cannot support the decriminalisation by stealth that this Government wants to put through."