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Communtity Law Manual | Common crimes | Defences to possession, supply or use charges

Drug offences

Defences to possession, supply or use charges

Taking drugs off others or finding drugs

Misuse of Drugs Act 1975, s 7(3)

It’s a defence to a charge of possessing an illegal (“controlled”) drug if you’d taken it off someone to prevent them possessing, using or dealing in the drug. As soon as possible you must have taken all reasonable steps either to destroy the drug or to take it to the police or someone else who’s authorised to have it, like a doctor.

If you’d simply found the drug, it’s a defence if you’d taken it with the intention of delivering it to the police or another authorised person, and if you took all reasonable steps to do this as soon as possible after finding it.

Using drugs for medical reasons

Misuse of Drugs Act 1975, ss 7(3A), 8(1)(c)-(d), 24, 24A

You can legally possess and use an illegal drug if a doctor prescribed it for you and it’s a drug that can legally be prescribed. If you’re too sick to give yourself drugs that have been legally prescribed for you, a person caring for you can legally give you the drug.

If a doctor or nurse knows you’re an addict it’s a criminal offence for them to supply you with drugs for that addiction, unless they’ve been specifically authorised to do this under an official treatment programme (like the methadone programme).

You can also legally possess or use cannabis if a doctor or nurse has diagnosed you as having a terminal illness or condition and as being near the end of your life.

Getting your drugs tested by a drug checking service: defence to supply

Misuse of Drugs Act 1975, ss 35DA, 35DD, 35DI

In 2020, the government temporarily legalised drug checking to help people make informed decisions about the drugs they might take. The idea is to check that the contents of the drugs are what you think they are and that they’re not something different that could be really harmful.

It’s now lawful to hand over a small sample (10mg) of your drugs to an official drug checking service. The drug checking service won’t return this sample to you. You can get any drugs or substances tested, including unapproved psychoactives. But if the police find more than 10mg in your possession, you won’t be able to get out of it by claiming that you were on your way to get the drugs checked.

Third party drug checking services have to be appointed by the government to operate lawfully. As of October 2021, the only appointed service is KnowYourStuffNZ (see www.knowyourstuff.nz for more details).

Originally, legal drug checking was set to expire at the end of December 2021, but in May 2021, the government announced that it will pass new law to set up a permanent drug checking system by December 2021.

For more information about drug checking services, see “Where to go for more support”.

Note: the new drug checking law changes make it lawful to supply your drugs to an approved drug checker for testing or destruction. You’re also protected from having your test results used against you in criminal proceedings. But the new law doesn’t change the fact that it’s unlawful to be in possession of drugs and psychoactives.

Allowing your place to be used for drug offences

Misuse of Drugs Act 1975, s 12

It’s illegal to knowingly allow your home or your car to be used for a drug offence (like letting friends grow some cannabis plants in your flat), even if you don’t have anything to do with the drug yourself.

The penalties depend on what type of drug it is. Allowing your place to be used for the sale or use of cannabis or some other Class C drug has a maximum penalty of three years jail; if they’re class B, it’s a maximum of seven years’ jail, and if they’re Class A, the maximum is 10 years.

However, you wouldn’t normally get a jail sentence for this offence unless you already had a history of minor drug offending.

Pipes, bongs and other items

Misuse of Drugs Act 1975, s 13

It’s illegal to have a pipe, bong or other “utensil” for using or manufacturing drugs (unless you’re terminally ill).

For a first offence you’d expect to get only a fine for possessing a pipe for personal use. Usually you’d only get a jail term if you had a record of minor drug convictions.

Needles and syringes

Misuse of Drugs Act 1975, s 13(1)(aa), (3); Health (Needles and Syringes) Regulations 1998

It’s usually a criminal offence to have a needle or syringe for the purpose of using illegal drugs. The maximum penalty is a prison term of up to one year or a fine of up to $500. However, this isn’t illegal if you (or someone else) bought it as a new needle or syringe under the Needle Exchange Programme from a pharmacist or an approved doctor or a local Needle Exchange.

Misuse of Drugs Act 1975, s 13(1)(aa), (3); Health (Needles and Syringes) Regulations 1998

It’s illegal offence to throw away a used needle or syringe in a public place (like a park or in the street), to use a used needle or syringe, or to offer a used needle or syringe to someone else to use. The penalty is a fine of up to $500.

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