The NSW Greens have reignited the campaign to overhaul the state’s roadside drug-testing laws, introducing a bill that would provide a legal defence for medicinal cannabis patients who test positive for THC but are unimpaired.
Greens MLC Cate Faehrmann tabled the bill in the upper house, aimed at amending laws relating to the Road Transport Act 2013 which are turning “thousands of people” into criminals.
Under existing NSW legislation, any driver who tests positive for THC – even if holding a medicinal cannabis prescription and showing no signs of impairment – faces fines and a mandatory licence suspension.
The bill proposes to exclude patients from these penalties, provided THC was obtained and used in line with a medical prescription.
The Greens’ latest move follows recommendations from the NSW Drug Summit report, which called for legislative reform to protect unimpaired medicinal cannabis patients from prosecution.
It also comes on the heels of similar changes in Victoria where, from March this year, magistrates have been granted discretion to waive former mandatory licence bans in such cases. Tasmania has a comparable defence in place.
While the Greens introduced a similar bill in 2021, Faehrmann said the new version includes one key change: it places the burden of proof on the driver to demonstrate that the only drug in their system was legally prescribed THC.
“During the inquiry into my bill in 2021, legal stakeholders said the bill needed clarity in terms of where the onus of proof lay,” she said.
Faehrmann said further research, policy work and reforms – including Victoria’s new laws and the recommendations of the NSW Drug Summit – have built a strong case for change.
“The issue has been well and truly examined by experts and the ball is now in the government’s court to act,” she said.
“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.”