Source: New Zealand Parliament – Hansard
DAVID SEYMOUR (Leader—ACT): Well, thank you, Mr Chair. I’m sorry not to see Dr Smith take a call; I hope he will soon because I’m particularly keen to hear his explanation of just how musical and festive a music festival would have to be to qualify under his amendment. Upon further examination of Dr Smith’s amendment, I’ve also noticed that it is an amendment to section 35DJ. That is the amendment that requires the testing to be done at a music festival—so, hey, 35DJ! We’re looking forward to hearing Dr Smith get up and explain his amendment.
But I would like to just drill down a bit further into the more serious matter that’s being discussed and that the Minister’s just very helpfully given a partial answer to, but I do wonder about the remaining liabilities for both the host of the venue and for other people who might comprise a person conducting a business or undertaking—for example, a testing service that the directors or management, that the volunteers and workers, have certainly absolved. But what liability do they have in the case where somebody avails themselves of a testing service and still goes on to be harmed by impure drugs? Because I just think it’s—you know, given the absence of a regulatory impact statement, given the absence of a select committee process, can we just tease out and understand what liabilities people—who I support, who I think should be offering their services—will or face under the Health and Safety at Work Act, given this law? And the answer may well be no different from what they face now. If that’s the answer, I think hearing that from the Minister in the committee would be very helpful.
Hon ANDREW LITTLE (Minister of Health): Thanks again to that member for the further question. I do go back to those words at the very end of that proposed subsection and proposed clause, or new section 35DH: “unless it is shown that they acted in bad faith or without reasonable care”. So there is an expectation that they will exercise reasonable care. We know, as a matter of law, reasonable care will differ depending on the qualifications, competency, or capability of the person. A medical professional who volunteers to assist with a drug-checking service will be held to a higher standard than somebody who has got a basic science knowledge, knows how to run the testing equipment, and can interpret a result and advise a person of the result. That is the reality. So I think the expectation with these testing services is that they conduct the test, they get the result, and they provide that to the person who has provided the sample or the drug for testing. There will be some advice or counselling about—first of all, advice about the content of the substance, then, second, about the health effects of ingesting it. Provided that is happening, consistent with the person’s skills, competency, and capability, then they have discharged their obligation.
If there is an adverse reaction further down the track, well, then, the person in the drug-checking service won’t be held responsible for that, because, in the end, it will be the choice of the person who has acquired the substance, sought testing of it, and then has knowledge of it, and what they choose to do with it after that will be on them. That is the regime that has been set up, and I think that member would accept that this is about saying to those people who do choose to use mind-altering substances, that is a choice that they take regardless of the lawfulness of the substance. We know that there are health effects, and the purpose of this is to allow an opportunity to provide health advice at that time, but if they make that choice, they make that choice. We want to seek to minimise the negative health effects, but I think reality and life tells us we won’t stop some people, or people within a cohort, from experimenting, trying stuff out, even if it has a predictable and obvious effect on them.