Psychoactive Substances Act 2013, s 9

In the ordinary meaning of the term, a psychoactive substance is any substance that has an effect on your mind. This includes caffeine (as found in tea, coffee and cola), nicotine, alcohol, pain killers, antidepressants, anaesthetics, cocaine and LSD amongst a multitude of other things.

The way the term is defined in the Psychoactive Substances Act is, however, much more specific. In fact, the Act defines “psychoactive substance” in a way that excludes most of the things that would normally be considered to be psychoactive substances.

The Act was introduced to regulate what had, up until that point, often been called “legal highs” – things such as synthetic cannabis, party pills and herbal highs. These are the sorts of “psychoactive substance” covered by the Act.

Given how its differs from the general meaning of the term, quotation marks are used to indicate when the specific and more limited meaning adopted in the Psychoactive Substances Act is being used (“psychoactive substance”)

Psychoactive Substances Act 2013, s 71 Criminal Procedure Act 2011, ss 6, 71

It’s illegal to possess any synthetic cannabis, party pills or herbal highs (“psychoactive substances”). While sometimes called “legal highs” in the past, they’ve all been illegal since July 2013.

The Psychoactive Substances Act allows for “psychoactive substances” to be approved by the Psychoactive Substances Regulatory Authority (PSRA). However, none have been been approved. This means that currently it’s illegal to possess any “psychoactive substances”.

If you’re convicted in court, the judge can fine you up to $500.

In the criminal justice system this is a Category 1 offence. This means that, unlike more serious offences, you don’t have to go to court at all if you simply want to plead guilty. You can send the court your plea in writing. If you plead not guilty, you’ll have a District Court trial before a judge alone (meaning there is no jury). For more about the different offence categories, see: “The criminal courts”.

Psychoactive Substances Act 2013, ss 72–74 Psychoactive Substances (Infringement Fees and Form of Notices) Regulations 2014, reg 4

Alternatively, rather than taking you to court, the police can simply give you a $300 infringement notice on the spot (like a speeding ticket). To do this, they need to at least have reasonable grounds for believing that you possess a “psychoactive substance”. With an infringement notice, you only have to go to court if you want to challenge the notice. Infringement notices don’t give you a criminal record.

“Psychoactive substances” have been sold on the street under a range of product names – including Anarchy, Apocalypse, Black Widow, Chocolate Haze, Haze, Hydro Budz AK-47, Hydro Budz Hindu Kush, Karma, Puff, Southern Lights, Voodoo, White Rhino and WTF.

Psychoactive Substances Act 2013, ss 72–74 Psychoactive Substances (Infringement Fees and Form of Notices) Regulations 2014, reg 4

If you’re under 18, it’s illegal to buy or possess any “psychoactive substances” (such as synthetic cannabis), whether they’ve been officially approved or not. For this you can be fined up to $500 if you’re convicted in court.

Note: So far, no drugs have been approved under the Psychoactive Substances Act, so there’s currently no practical difference in how the law applies to young people and adults.

Alternatively, instead of bringing charges against you in court, the police can give you a $300 infringement notice.

If you’re 14 or over, and the police take you to court, you’ll be dealt with in the adult courts (the District Court), rather than the usual Youth Court. But if you’re under 14, you’ll be dealt with under the care and protection laws, not the youth justice system or the adult justice system (see: “Dealing with Oranga Tamariki / Ministry for Children”).

Psychoactive Substances Act 2013, s 70

There’s a maximum penalty of two years’ imprisonment if you:

• sell or give unapproved “psychoactive substances” to anyone, or offer to sell or give them, or
• have unapproved “psychoactive substances” in your possession with the intention of selling or giving them to anyone.

Criminal Procedure Act 2011, ss 6, 73 Case: [2015] NZHC 2565

This is a Category 3 offence, which means that, if you plead not guilty, you’ll have the right to choose either a jury trial in the District Court or a trial in front of a District Court judge alone.

The type and level of sentence you get in your particular case will depend on the scale of the dealing you’re involved in:

• “Minor”: little or no profit-making – If you have a small amount of synthetic cannabis for the purpose of selling or giving it to others, but this isn’t a commercial operation designed to make you money, then the starting point for your sentence is likely to be a fine or a community-based sentence. For example, you might use the drug yourself and sometimes supply it to friends, either at cost or for a small profit. However, if there’s repeat offending on a similar scale, you might get a short sentence of home detention or imprisonment.
• “Moderate”: moderate commercial dealing – If you’re convicted of dealing as a profit-making business on a moderate scale, the starting-point sentence will probably be between six and 12 months’ imprisonment.
• “Serious”: large-scale commercial dealing – If you’re dealing on a large commercial scale with a sophisticated, well-organised operation, the starting point is likely to be more than 12 months’ imprisonment.

Note: The “starting point” means the level of sentence the judge initially decides on based simply on how bad the offending was, before looking at you and your situation to decide whether your sentence should have any increases (“uplifts”) for aggravating features like previous offending, or reductions (“discounts”) for mitigating features like a guilty plea (see: “How criminal sentencing works”).

Psychoactive Substances Act 2013, s 49 Criminal Procedure Act 2011, ss 6, 71

Even if a “psychoactive substances” has been officially approved for sale (and none have been so far), it’s still illegal to sell it to anyone under 18. For this an individual can be fined up to $1,000, and companies can be fined up to $10,000. This is a Category 1 offence. For how Category 1 offences are dealt with in the criminal justice system, see: “The criminal courts”.

Psychoactive Substances Act 2013, ss 50, 72–74 Psychoactive Substances (Infringement Fees and Form of Notices) Regulations 2014, reg 4

It’s also illegal to give any approved “psychoactive substances” to someone under 18, or to give it to someone over 18 with the intention that they’ll later give it to someone under 18. For this you can be fined up to $2,000 if you’re convicted in court. Alternatively, the police can give you a $300 infringement notice (like a speeding ticket).