Road Transport Amendment (Medicinal Cannabis-Exemptions from Offences) Bill 2025
As The Greens spokesperson for drug law reform and harm reduction, I am proud to once again introduce a bill into this place that seeks to right an injustice in our road laws that makes criminals out of thousands of people in this State for doing nothing wrong. The Road Transport Amendment (Medicinal Cannabis-Exemptions from Offences) Bill 2025 amends the Road Transport Act 2013 to provide an exemption for people who test positive for THC, or tetrahydrocannabinol, in their system if it was obtained legally through a medicinal cannabis prescription. This bill mirrors what I introduced in the last Parliament back in 2021, with minor amendments to address issues raised in the inquiry into that bill in 2021. Unfortunately, after the inquiry that bill was voted down in this place.
However, a lot has happened in this space over the following four years, including the Drug Summit, which I will talk about later. Victoria has passed legislation from 1 March this year that has meant that drivers who use medicinal cannabis are no longer subject to automatic licence bans. Victorian magistrates are now able to use their discretion to determine if a driver was impaired behind the wheel. During the inquiry into my bill in 2021, legal stakeholders said the bill needed clarity in terms of where the onus of proof lay. I have amended this bill before us to take into consideration that particular issue that was raised during the inquiry. I have amended it to place a clear burden of proof on the defendant to prove that the only illicit drug in their system was THC that was obtained and administered in accordance with the Poisons and Therapeutic Goods Act 1966. This means that the duty lies with the charged driver to prove to the court that the THC in their system was medicinal cannabis prescribed to them by their doctor, if indeed it gets to court.
I have also included the requirement for a review, three years after the commencement of the bill, with a report on the outcome of the review to be tabled in each House of Parliament. The object of the bill is to exclude users of medicinal cannabis from the application of the offences relating to driving while a prescribed illicit drug is present in a person's oral fluid, blood or urine. It is a very simple bill. Clause 3 amends section 111 of the Road Transport Act to insert a defence to provide that offences relating to the presence of THC in a person's oral fluid, blood or urine do not apply if the only drug present is THC, or delta-9-tetrahydrocannabinol, that the person had obtained and administered for medicinal purposes.
A review will also be undertaken. The issue is that section 111 of the Road Transport Act states that it is an offence for a person to be found driving with the presence of certain illegal drugs, other than alcohol, in oral fluid, blood or urine. These illegal drugs are cocaine, the psychoactive part of cannabis, which is THC, MDMA and amphetamines. But, as we know, THC in certain circumstances is no longer illegal. Section 111 (6) of the Act defines that it is an exemption to the offence if the drug found is a substance being consumed for medicinal purposes only and taken in accordance with a medical practitioner's prescription. The current law does not include legally acquired medicinal cannabis under that defence. That, indeed, is the problem, and it has been the problem since medicinal cannabis was made legal in this country in 2016.
In fact, cannabis or, more precisely, THC, needs only to be detected in a person's system, but they do not need to be impaired or affected by it to be caught under our road laws during roadside drug testing. The roadside drug tests used by New South Wales police are very sensitive to THC, needing just five nanograms per millilitre for a positive result. It can take up to 24 hours after using medicinal cannabis—some people say longer than that—for blood levels to drop below 10 nanograms per millilitre. That means even light usage can result in a positive test more than 24 hours after use. Unlike with alcohol, there is no scientific or societal consensus on what threshold of nanograms per millilitre of THC is considered impairment.
Seventy per cent of the more than 350,000 active legal medicinal cannabis patients in Australia have some THC in their medication, according to Drive Change. In fact, that figure of 350,000 active legal medicinal cannabis patients is probably too low, given the number of prescriptions for medicinal cannabis. The latest annual Cannabis in Australia report by that wonderful research institution the Pennington Institute, released late last year, shows that medicinal cannabis use is significantly on the rise. They have data that shows that the total number of units of medicinal cannabis sold in Australia in the first half of 2024 reached 2.87 million units compared with 1.68 million units sold in the second half of 2023. That is a really steep rise.
Other data shows that over one million new patients have reported access to medicinal cannabis in Australia since 2016 through the Authorised Prescriber Scheme, and a further 500,000 have reported access under the Special Access Scheme. It is difficult to get exact numbers and data, but there is no denying that a hell of a lot of people in this State are using medicinal cannabis legally and, therefore, a hell of a lot of people cannot drive because they risk losing their licence as a result of our unfair roadside drug testing laws. They are accessing medicinal cannabis because it works. It works for many different ailments. It has been proven to relieve depression, insomnia, chronic pain and epilepsy. It has been proven to relieve post-traumatic stress disorder. I have spoken with many people who have used medicinal cannabis for conditions that other drugs do not work on.
War veterans have told me about the incredible, life‑saving relief of medicinal cannabis. In fact, we received many submissions from people impacted by these unjust road laws during debate on the 2021 bill. In many submissions people told very personal stories about the life‑changing impact of medicinal cannabis on their lives. In one submission a person stated that after seven years of trialling drugs with horrific side effects, they were finally able to feel relief from debilitating anxiety, depression and PTSD. I quote from her submission but note she wanted to keep her details confidential:
After a few weeks of tweaking the dosage, I found that the symptoms of all my conditions noticeably and substantially improved in a way I never experienced with other medication.
Also noteworthy, is that there are no side effects for me which is a game-changer.
My experience of medicinal cannabis it is that it never makes me feel "intoxicated" like many of the other drugs did, rather, calms my over-active stress response system which usually feels as though it is on fire.
This, in turn, has made it possible for me to return to study and to perform more effectively at work.
To be clear, if anyone is impaired while driving, I believe they absolutely should be punished. I simply want the laws for cannabis to be the same as the laws for other potentially impairing drugs, which provide a defence for the presence of drugs when the patient is not impaired. I can test positive for opiates or benzodiazepines and drive away if I show my prescription. Those medications affect the ability to drive far more than medicinal cannabis.
A registered clinical nurse said:
I have found relief of chronic pain from multiple whiplash injuries due to a car accident, I have received PTSD from working in a high acute area for many years and associated insomnia. I have improved sleep patterns and decreased neuropathic pain. My quality of life and improvement in health is immeasurable. This medicine has allowed me to return to the workplace as a fully functioning member of my team and productive member of society.
However, if I drive a car, I am a criminal regardless of impairment status. This medicine is prescribed by a specialist or Doctor and is the same category or schedule as other medications not tested at roadside.
[As a working medical professional] I see patients daily who report multiple adverse impacts of cannabis and driving laws on their quality of life, dignity and independence. They report symptom management to the point of return to work for some, this is due to decreased pain, improved mobility and multiple pharmaceutical reductions for many.
Only to find themselves in a conundrum, they now have good health, employment, improvement in all areas of their life but are restricted due to these driving laws which in turn sees them backslide. Do they continue to work, which improves quality of life, improves self-esteem, relationships, anxiety and future outlooks?
Sometimes those people give up their medication and even their employment. Members know that many more people have reported situations of having to forgo medicinal cannabis and return to pharmaceutical drugs. Opioids are incredibly addictive drugs that have very challenging side effects. Our laws have not kept pace with the change in law in 2016 that made medicinal cannabis legal across the country. A number of other jurisdictions have managed to accommodate reforms to legalise medicinal cannabis. The United Kingdom, New Zealand, Norway and Germany provide a medical defence for testing positive for THC provided the driver is not impaired and has a prescription. For nine years Tasmania has had a defence where the defendant bears the burden of proving, on the balance of probabilities, that they have a prescription and that they are not driving under the influence.
However, in New South Wales things have become worse for medicinal cannabis patients. In the past year a ruling by the New South Wales Court of Criminal Appeal removed the long relied-upon defence of honest and reasonable mistake of fact for those who are charged after testing positive to a roadside drug test. That makes drug driving an absolute liability offence, which is significant. It means that the following can and does happen: If someone takes drops of legally prescribed medicinal cannabis containing THC at night and the next morning they test positive during a roadside drug test for the first time, they will receive a three-month licence disqualification and an on-the-spot fine of $572. That means they avoid court, and that is the best case situation. Challenging the matter in court can result in a $2,200 fine or having their licenced disqualified for six months. That time frame can be dropped to three months—again, that is a best-case scenario—but it cannot be increased. That is what happens the first time someone is caught.
We must think about medicinal cannabis patients in regional areas who are particularly vulnerable. For example, regional police put a lot of effort into setting up roadside drug tests outside the Nimbin MardiGrass, and Broken Hill has extraordinarily high rates of roadside drug tests. Those tests are taking place in particular regional areas. If people are caught drug driving a second time, they can receive a $3,300 fine and have their licence disqualified for 12 months. The court can drop that disqualification to six months, but they can increase it without limit. That is pretty full-on for people who are taking a legal medication that was prescribed by their doctor. They are not driving impaired. They are doing everything legal. The only thing is they may have a little trace of THC in their system. Of course, even the police say that most of the time the drivers are not impaired.
The effect of a medicinal cannabis patient losing their licence can be significant and drastic for them and their families. Losing a licence is unacceptable for a lot of people, particularly for patients living in regional and remote parts of New South Wales, where they have to drive long distances to reach essential services, including medical appointments. There is no public transport, and Uber and taxis are generally out of the question. It can stop people from accessing doctors appointments, they can lose their jobs because they can no longer get to work, and, in fact, it can have serious ramifications for their family lives and their mental health.
Data from the NSW Bureau of Crime Statistics and Research [BOCSAR] documents the huge increase in the number of roadside drug tests—and hence detections—over the past decade. In 2014, 1,409 people were charged or issued infringements by police for drug driving, compared with 13,815 in 2023. That is because police have significantly increased the number of roadside drug tests they conduct each year, from 20,000 in 2014 to 156,000 in 2023. The head of the Bureau of Crime Statistics and Research, Jackie Fitzgerald, says that there has been such an explosion in drug testing and charging that those offences now make up a sizeable portion of the workload of our local courts, with 8 per cent of all court matters dealing with drug driving offences now. Cannabis and amphetamines are the most highly detected substances.
We have tried to get data on whether the people who are being charged in court are pleading that they have a prescription, and whether the evidence is that they were impaired while they were driving. Of course, that data is difficult to obtain. I have asked questions on notice trying to chase that data because it is difficult to analyse what is going on without it. With the huge increase in the use of medicinal cannabis, it can only be imagined that a fair few of those people who come before the courts are likely not impaired or driving dangerously but have been caught up in the roadside drug testing regime.
The head of BOCSAR also said that there is no evidence that the increase in drug driving detections was driven by changes in drug use or drug driving behaviour. While the State average of drug driving detections in 2023 was about 200 per 100,000 population, the areas with the highest rates of detection were usually regional—Broken Hill, Cootamundra-Gundagai, Snowy Monaro and Lismore were in the top 10. In his evidence at the Goonellabah hearing of the Portfolio Committee No. 1 inquiry into the impact of the regulatory framework for cannabis in New South Wales, Mr Patrick Hourigan, assistant principal solicitor at the Mid North Coast Legal Centre, explained the impact that the loss of a driver licence can have in the regions. He said:
We can see the effects of licence disqualifications and this offence to be very devastating on people. Imagine a client who is 20 minutes out of town, up a dirt road, who doesn't have a lot of social support—I honestly don't know what is going to happen to them when they lose their licence for three to 12 months. How are they going to be supported?
Ex-magistrate and head of Drive Change David Heilpern says that our justice system in this State is drowning in drug matters and has been since he started as a magistrate over 20 years ago. In fact, he cites these broken drug driving laws as one of the main reasons he left the bench. He gave the following evidence to the same inquiry:
If they lose their job, they lose their family. Isolation. This causes harm to society, and a much greater level of harm than the driving with a medicinal level of cannabis in their system. It is well and truly out of proportion. It causes great harm to people. Lose your job, can't pay your mortgage, lose your house, not having contact with family—what does that lead to? Drug abuse. It's a cycle.
Clearly, the current situation is untenable for thousands of people in this State. The inquiry by Portfolio Committee No. 1 was the most recent examination of this issue by members of this place. The committee released an interim report on 31 October last year, which included the following finding:
That people who drive unimpaired after consuming medicinal cannabis are unfairly criminalised and legislative reform that does not jeopardise road safety should be considered.
The report also contained the recommendation that the New South Wales Government considers including 11 reform measures as part of the Drug Summit. Among those recommendations that are relevant to the bill before the House is the following:
a medicinal use defence to the offence of drive with 'presence of a prescribed illicit drug in oral fluid, blood or urine' offence in respect of cannabis such as is legislated for in Tasmania but ensuring that the mixing of cannabis and alcohol is the express subject of an aggravating factor of the relevant criminal offence.
The report also recommended:
That implementation of these reforms, and any others, be monitored and evaluated and that a whole of Government response be provided … within 12 months …
The Government response to that report published at the end of February this year stated:
The NSW Government agrees that it is appropriate that matters related to drug policy be considered in the context of the Drug Summit. The Government will consider the issues raised in the Inquiry report and the accompanying recommendations as part of its response to the NSW Drug Summit …
The report on the Drug Summit—which came out in March, I believe—made the following recommendation:
Legislate for a medical defence for people using medically prescribed cannabis who are driving and include:
i.an option for police at the roadside or a court to assess the defence
ii.guidelines that are developed by relevant government agencies (such as Transport, Health, Police and Justice) to support implementation
iii.a review after 12 months.
In other words, this issue has been well and truly examined by experts, and the ball is now in the Government's court to act. Further, with the Court of Criminal Appeal ruling last year on strict liability, this reform is more urgent than ever. Thousands of people are being charged in this State for so-called drug driving. The scheme exists to not only prevent people from driving under the influence of certain illegal drugs—fair enough—but also dissuade people from using illegal drugs. People are being charged under that scheme when they are not under the influence or taking an illegal drug. All the while, the resources of our justice system are being tied up with these unjust laws. It is time for change.
The bill is offered up as a starting point for the Government and members of this Parliament to just get it done. I welcome discussions over the coming weeks and months about the bill, recommendations from the Drug Summit and from the Portfolio Committee No. 1 inquiry report and any amendments to this bill. The bill before the House has been built on the bill that I introduced in the last Parliament, with a few amendments to take into consideration some of the feedback from the parliamentary inquiry last year. It is different to what the NSW Drug Summit recommends, for example, but we have to land somewhere in the middle.
Different jurisdictions have different systems to determine whether people have to go to court and argue a medical defence before a magistrate, or whether they show a prescription and, if they are not impaired, police make that judgement on the side of the road. That is up to the Government to look at. But it is well and truly time for change. Many people have been campaigning hard for this reform ever since medicinal cannabis was legislated. Over a number of years, people started to realise that something was wrong with our drug driving regime in New South Wales, as more and more people, particularly adults, started realising the benefits of medicinal cannabis. As goals for roadside drug tests being undertaken increase year by year, it seems, more and more people are being caught up in the scheme, because more and more people are also finding that medicinal cannabis works for them.
Some of the people who have campaigned hard for this law reform are still campaigning hard. We are still in discussions with members from all sides of politics in this place to see if we can get it done in New South Wales. David Heilpern has spent so much of his time, both as a magistrate and after, working on this. I know the good folks at Harm Reduction Australia like Gino Vumbaca and Bee Mohamed will continue campaigning and having those discussions until we get it done. Many others have been working at the local level, supporting people whose lives have been severely impacted because the roadside drug testing laws are being applied in the wrong way. We, as lawmakers, have not yet taken it upon ourselves to get on with it and sort it out. Lismore solicitor Steve Bolt has defended countless clients in court who have been caught—tested at roadside drug tests—with traces of THC in their systems. He said:
Routinely we see in court matters a police summary sheet produced to the court and in almost every single case, the police report they stopped the person, undertook the test, came back with a positive result from the laboratory, but at the time of the testing they could see no impairment in terms of their driving.
That speaks volumes of the level of justice—or injustice—in the system. It is time to fix the injustice for medicinal cannabis patients. I commend the bill to the House.