A move by the Greens to make medicinal cannabis use a defence against a drug-driving conviction has been voted down in the New South Wales state parliament.

The amendment to the Road Transport Legislation Amendment Bill, moved by Greens Member of the Legislative Council David Shoebridge, stated: “It is a defence to a prosecution… if the defendant proves to the court’s satisfaction that… the presence in the defendant’s oral fluid, blood or urine of delta‑9‑tetrahydrocannabinol was caused by the consumption of a substance for medicinal purposes.”

Greens MLC David Shoebridge

Shoebridge said the matter had caused “significant concern” in the community and that although anyone driving while impaired by a drug should lose their licence under section 112 of the Road Transport Act, section 111 — which makes it an offence to drive with the “mere presence” of ecstasy, cannabis or amphetamines — was too broadly defined.

He added: “The concern for the Greens has always been in relation to the offence for driving with a slight trace element of cannabis in somebody’s system because the sensitivity of the test… has been repeatedly used to find drivers in breach of section 111 and to remove their licences. This often sees them economically and socially isolated as a result. Of course, this has the greatest impact on regional New South Wales.”

He cited evidence from the Bureau of Crime Statistics and Research which showed most prosecutions and driver licence losses under section 111 occur in the North Coast, Lismore and Northern Rivers regions, as well as south‑west Sydney.

“There are many hundreds, indeed thousands, of cases where a driver has lost their licence not because they were impaired or because they were a danger but because they had the smallest, tiniest trace element of cannabis in their system.”

Shoebridge said the issue has become more pressing as laws around medicinal cannabis use have relaxed and consumer access has improved, but those taking medicinal cannabis to deal with chronic pain still have no defence under section 111.

He added: “These are people who often have a desperate need for a licence to get medical attention, to maintain their connections with family or… the community, and they automatically lose their licence — there is absolutely no defence.”

“There are many hundreds, indeed thousands, of cases where a driver has lost their licence not because they were impaired or because they were a danger but because they had the smallest, tiniest trace element of cannabis in their system.”

Shoebridge said former New South Wales magistrate David Heilpern, who is leading a campaign to change the drug-driving laws relating to cannabis, has contrasted their effectiveness with other road safety legislation.

Quoting Heilpern, he said: “When they introduced seatbelt laws, there was a reduction in the road toll. I have seen nothing to show that there is any reduction in the road toll as a result of thousands and thousands of people who are appearing before courts for historic use of cannabis.”

Shoebridge compared the treatment of a driver with trace elements of cannabis in their system to one with a large amount of benzodiazepines in theirs — “one of the leading causes of road trauma and death in drug-impacted driving” — who would not be tested for it.

“Their impairment will not be picked up by that drug test and they will be waved through by the police. So we have this bizarre situation where the slightest trace of cannabis may see someone losing their licence but the police are not testing for, and the law does not encourage them to test for, that class of prescription drugs — benzodiazepines — which we know is a major cause of road trauma in the state.”

David Heilpern
Former NSW magistrate David Heilpern: leading a campaign against the drug-driving laws.

However, rejecting the amendment on behalf of the Government, parliamentary secretary to the treasurer and leader of the house in the legislative council Scott Farlow said: “THC affects cognitive and motor skills necessary for safe driving such as attention, judgement, memory, vision and coordination.”

He noted that while the ACT legalised medicinal cannabis in January 2020, it has not amended its road transport law to allow medicinal use as a defence.

“Indeed, the Australian Capital Territory Government’s website advises that with regards to the legalisation of medicinal cannabis and road safety risks ‘there is no safe amount, and each person is affected differently by cannabis use’,” he said.

Farlow claimed exposure to cannabis can increase the crash risk of drivers by an estimated 40% and that New South Wales crash data indicates there has been a 7% increase in the number of fatalities and serious crashes directly attributed to the presence of an illicit drug, and a 3% increase in the number of crashes directly attributed to the presence of THC since 2014.

Speaking for Labor, shadow minister for roads, music and the night time economy John Graham noted the issue had gained traction in Victoria because it had gone through the parliamentary committee process and suggested it do the same in NSW.

“It may be a way to sift through what have been two very strongly contrasting positions that have been put to us by the mover of the amendment and by the Government,” he added.

While acknowledging a number of people in the state were deeply impacted by the current laws, he said Labor would not support the amendment as the shadow cabinet had not had time to consider it.

The Reverend Fred Nile said the Christian Democratic Party strongly opposed the amendment and suggested it would be the thin end of the wedge if it passed:

“The amendment… would water down the strong position that the state has taken and endanger the lives of young people… It is not surprising that the Greens have moved it; we anticipate that they would go further if they had the chance.”

The amendment was voted down by 33 votes to five.

While accepting the Greens didn’t have the numbers to pass it, Shoebridge welcomed Labor’s suggestion to establish a formal parliamentary process to review the issue.

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  1. On any opiate-based prescription medications you receive, there is a clear warning that you should NOT operate heavy machinery or vehicles whilst under the effects of the prescription medication.

    The reason for this is that there is empirically clear evidence that the effects of opiates have an impact on motor function. THC, on the other hand, is a single cannabinoid that has been identified and studied within a spectrum of cannabinoids that affect any human’s endocannabinoid system differently.

    There is no empirical evidence that THC affects motor function, it is simply not in its ability to prescriptively do this – THC is not an engineered metabolic drug – it’s just a naturally occurring lipid within the plant kingdom.

  2. How about testing the elderly who have driver’s licences rather than someone with trace elements of THC in their system. The elderly aren’t stupid, they memorise eyesight tests etc to keep their licence.There are so many cases of older people getting confused with the brake and accelerator and causing crashes. Their reaction times would be shocking, yet they are allowed to drive well past the time when they should have been refused a licence. Let’s see some studies on this!!

  3. There needs to be a regulation to require any positive test to undergo a roadside sobriety test. Remember before electronics took over, observation in impaired driving laws, then the actual impaired drivers can be charged without the collateral damage to other drivers with positive tests that are not impaired.