Caught With Cannabis: What Police Discretion Actually Means for You

Since a 2019 amendment, New Zealand police have explicit discretion to consider whether a health-centred response would be better than prosecution for low-level drug possession — including cannabis. It's widely misunderstood as a form of decriminalisation. It isn't. Here's what the discretion actually means if you're caught.

Information and education, not legal advice. 18+. If you are facing a charge, talk to a lawyer or a community law centre.

What the law actually says

The Misuse of Drugs Amendment Act 2019 added a clause directing that, when considering whether to prosecute someone for possession or use of a controlled drug, police should consider whether a health-centred or therapeutic approach would be more beneficial to the public interest. There's also a general statement that a prosecution should not proceed unless it is required in the public interest.

Crucially, this is a discretion, not a right. It does not legalise or decriminalise cannabis. Possession of cannabis remains an offence under the Misuse of Drugs Act. What changed is the explicit steer to officers to weigh a health response — a warning, a referral, or no further action — against laying a charge.

What "discretion" means in real life

When an officer encounters someone with a small amount of cannabis for personal use, they can now more readily choose to:

• Take no further action, or
• Issue a warning, or
• Refer the person toward health or support services, instead of
• Charging them.

But the officer can still charge you. The decision turns on the circumstances — the amount, any other offending, the person's history, and the officer's judgement. Two people in apparently similar situations can be treated differently, which is part of why the policy is criticised.

What it does NOT change

• It's still illegal. Cannabis is a Class C controlled drug. Possession, use, supply and cultivation remain offences.
• It doesn't cover supply or dealing. The discretion is centred on personal possession and use. Anything that looks like supply (larger amounts, scales, cash, tick lists) is treated far more seriously.
• It's not a guaranteed outcome. You cannot demand the health approach; you cannot rely on it.
• It doesn't erase the equity problem. Reviews and the Drug Foundation's analysis have found that the gap between how Māori and non-Māori are treated for cannabis offences has not closed under discretion — a major and ongoing concern. (See our piece on the Māori disparity in cannabis convictions.)

Why charges are actually rising

It surprises people that, despite discretion, cannabis charges have been climbing again in recent years. The reasons are debated, but the headline is that discretion is uneven and depends heavily on individual decisions and local practice. The official figures Chlöe Swarbrick and others have highlighted are exactly why reform advocates argue that discretion alone is not a substitute for clear law change. (See our news explainer on the rising-charges figures.)

Your rights if you're stopped

• You don't have to answer questions beyond identifying yourself in certain circumstances. You can say you wish to speak to a lawyer.
• Be calm and polite. How an interaction goes can influence the discretion exercised.
• You can ask whether you are being charged or dealt with another way.
• Get legal advice before signing anything or making a statement if a charge is possible. Legal aid and community law centres exist for exactly this.

Frequently asked questions

Is cannabis decriminalised in NZ? No. Police have discretion to take a health approach, but possession remains a criminal offence.

Can I insist on a warning instead of a charge? No. It's the officer's discretion, weighing the public interest. You can't demand it.

Does discretion apply to growing or selling? It's centred on personal possession and use. Cultivation and supply are treated much more seriously.

Why are charges going up if there's discretion? Because discretion is uneven and depends on individual and local decisions — a key argument for clearer reform.

Sources

• Misuse of Drugs Amendment Act 2019 (health-centred / public-interest provisions) (accessed 2026-06-15)
• New Zealand Police — drug policy and prosecution guidance (accessed 2026-06-15)
• New Zealand Drug Foundation — analysis of police discretion and equity (accessed 2026-06-15)
• Ministry of Justice / Te Tāhū o te Ture — charge and conviction statistics (accessed 2026-06-15)

Information and education, not legal advice. Get advice if you're facing a charge. 18+.