The New South Wales Labor government will introduce a drug driving defence for people prescribed cannabis, but are unable to drive without risk of conviction.
Ten years ago medicinal cannabis became a legal prescription drug, but the law prohibits people from driving with any concentration of tetrahydrocannabinol (THC) — the active ingredient in cannabis.
The new announcement brought momentary relief to an estimated 300,000 users — prior to their reading of the fine print.
Labor first spruiked its “commonsense approach” on June 4. It proposes that “drivers taking prescribed medicinal cannabis containing THC” no longer face automatic penalisation for testing positive for traces of the lawful medicine in their system. But they will be surveilled in the process, unlike drivers who take prescribed opiates and benzodiazepines.
If those prescribed the medicine want to drive in NSW, they will have to register themselves on a Transport for NSW medicinal cannabis user register. If they test positive, they will be banned from driving for 24 hours, while a laboratory ascertains whether the THC, the psychoactive component of cannabis, in their saliva exceeds a new legal limit of 50 nanograms per millilitre.
The NSW drug driving testing regime has been derided for decades, long before the federal Coalition under Malcolm Turnbull legalised the cultivation, production and use of cannabis medicine in 2016.
This is because, unlike random breath testing for alcohol, which ascertains if drivers are over the limit, drug driving laws don’t test for impairment but rather the mere presence of four select drugs.
After a decade of resisting calls for a simple defence — where a prescribed cannabis user who tests positive for THC, is not impaired and has a prescription, is able to raise this as a defence — the new proposal continues to criminalise these drivers.
NSW Greens MLC Cate Faehrmann said on June 10 that a cancer patient phoned her office “distraught” about the government’s proposed changes to drug driving laws for medicinal cannabis patients. “She can’t believe what’s been announced by the Minns government with the backing of the cannabis party and the independent Sydney MP.
“She said she’s worried this scheme … ‘puts a target on her back’,” Faehrmann said. She said she too is “increasingly concerned” because 18 months after the drug summit the scheme to end discrimination against medicinal cannabis patients is “establishing a police database of medicinal cannabis users”.
Faehrmann for some time has been pushing for a medical cannabis driving defence. She has introduced several cannabis driving defence bills since 2021 with the guts of her latest proposal being to insert subsection 111(1A) into the Road Transport Act 2013 (RTA) to defend a driver using a medicine.
She asks why those using a legal medicine have to register to avoid conviction. It means NSW Police hold this information as it will appear on the electronic drivers’ licences of those who register.
Faehrmann said Legalise Cannabis MLC Jeremy Buckingham and Independent MP for Sydney Alex Greenwich need to explain why they support a database of medicinal cannabis users “at every police officer’s fingertips across the state?”
Section 111 of the RTA makes drug driving or driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine an offence, but the offence only relates to four prescribed illicit substances: THC, MDMA, amphetamines and cocaine.
Drivers using prescription medicines that do impair, such as benzodiazepines and opiates, are not tested, and neither is heroin.
The difference between drug driving and drink driving laws in NSW is significant. While police test for any presence of the four targeted drugs, testing drivers for alcohol involves looking at levels in the blood. This means the higher the level of alcohol, the more serious the crime. It also means a low level of alcohol can result in no charge at all.
The NSW drug driving regime was established in 2007. Then drivers testing positive for the first time would be charged and go to court to face potential conviction, fining and licence disqualification. But since May 2018, first-time offenders face an on-the-spot fine of $704 and an instant three-month driver licence disqualification.
However, this can be challenged in court. A finding of guilty comes with a $2200 fine and up to six month’s suspension from driving. Drivers who test positive for drug driving on a second, or subsequent occasion, within a five-year period have to attend court and face penalties of up to a $3300 fine, as well as a driving disqualification.
Much has changed about the NSW drug driving regime, since the NSW District Court confirmed in July 2023 that, in line with a Liverpool Local Court decision, drug driving is an absolute liability offence, which means that if the prosecution proves a person has been driving with a drug in their system, there are no defences or excuses available for them to avoid conviction.
Currently, a person charged with cannabis driving cannot avoid a conviction if they are a prescribed cannabis user. Nor can they avoid it if the substance is in their system by any other means besides recreational use. The fact is that the NSW drug driving regime, which has always been unfair, is now significantly more unjust.
David Heilpern, Southern Cross University Dean of Law, leads the campaign for Drive Change, which has long been calling for a medicinal cannabis drug driving defence.
Heilpern, a former NSW magistrate, handed down three significant not guilty findings in relation to cannabis driving. In one, the driver tested positive while not being impaired by the drug and in two cases, the presence of cannabis in the drivers system was found to be due to reasons other than for recreational use.
Heilpern mused on social media on June 11 whether those who have campaigned for such a defence should be satisfied with what is on the table. He said that despite some issues, it is preferable to the medicinal cannabis defence available in Tasmania.
Tasmania has long had a medicinal cannabis driving defence in place. Heilpern explained that those testing positive for cannabis are suspended and charged with drug driving, prior to ending up in court, where they can then defend themselves based on being a prescribed cannabis medicine user.
Heilpern argues that the Tasmanian system clogs up the court system and he sees value in the three-strike system proposed for NSW, which can lead to no conviction even if a driver takes the matter to court after having breached the third strike. He supports the 12-month review for the proposed law.
However, he said there are problems with NSW Labor’s proposal: The requirement that cannabis medicine users have to register; whether they will be targeted by NSW police after doing so (which could include via number plate recognition technology) and the fact that the 50 nanograms per milliliter cut-off is “arguably too low”.
“Which model of these is best” Heilpern asked? “The one not on the table, which is to treat THC like every other prescription medicine. Effectively that is an impairment model which exists for opioids, Valium etc. We all want that. The ALP and the Opposition have no appetite for that — never have.”
“If we can tweak the current proposal to see regulations prohibiting targeting of registered users, it would be vastly superior,” Heilpern said. “Even as it is, I see it as better than the Tasmanian model. But if we get no change at all, that would be a disaster.”
[Paul Gregoire writes for Sydney Criminal Lawyers, where this piece was first published.]