Lawyer Mat Henderson ponders what needs to be done to deliver the research politicians are asking for before they sanction drug-driving reform.

It’s the attainment of justice and fairness that gives lawyers their buzz. 

But after five years of doing pro bono work across all manner of medicinal cannabis and driving matters, I can assure you the buzz is minimal to non-existent. It’s mostly a grind of heartbreaking stories and the never-ending organising of doctor’s letters.

Mat Henderson

The lack of buzz stems from an inability to change the law in the time-honoured way – by approaching courts, successfully arguing the distinguishing facts of your case, setting a precedent, and ‘changing the law’ (a gross over-simplification). 

It doesn’t matter if Granny Scroggins is a cancer patient who last consumed her prescribed THC a month ago, but then stopped being able to afford it. Detection is detection. Presence is presence. Ergo, criminality is criminality, and tough luck if you never thought of yourself as a criminal – because you are.

In every Australian jurisdiction bar Tasmania, it remains illegal to operate a motor vehicle with any detectable level of THC in your oral fluids. Don’t even sit in the driver’s seat of a stationary car if you had your THC-containing medicine today. 

It’s a zero tolerance approach compared with an increasing number of international jurisdictions which are adopting a more pragmatic approach, i.e. picking a measurement of THC in the blood and only making it a criminal offence to drive if that level is proven.

A zero tolerance approach focused on saliva testing is fraught with accuracy issues at the roadside detection stage. Your saliva sample ultimately winds up in a whizz-bang machine in a lab which can detect THC in your fluid consumed days, weeks or possibly months ago (if you’ve previously been a daily consumer of THC for some months). 

A faint positive or false positive doesn’t really matter because a mass spectrometer knows what your ancestors had for breakfast.

Australians don’t want unruly and impaired recreational consumers of THC on our roads. Nor do we want people impaired by their lawful THC meds to get behind the wheel when they bloody well should not. These are a given.

Australians also trust people to not be morons when it comes to taking any impairing medicine (as directed), to not operate cars, mix the medicine with booze or use heavy machinery afterwards (or for however long that they feel impaired).

Common sense dictates that most folk apply the ‘next-day rule’ to impairing drugs. 

This should also be a given when it comes to medicinal cannabis, but lawmakers appear to be blocked by law enforcers. This is not how the separation of powers is meant to work.

The law, as it stands in this area, is an ass. We have a set of laws on our statute books that unfairly target a growing swathe of the population with the unnecessary stain of criminality. 

If you’re reading this far then you’ll likely be across the recent parliamentary developments in Victoria and NSW and have digested the uniform takeaway. “More research is required.”

This is an unsatisfactory state of affairs, but it is a status quo that will continue for however long it takes for that research to be done, then peer reviewed and published.

Q. How long will that take?

A. Probably five years and, as Bowie sang in Five Years, my brain hurts a lot.

I wanted this article to contain a happier call-to-action beyond ‘sit down, shut up and wait for the scientists to finish whatever it is they do behind their velvet curtain’. 

So here are some ideas.

When the callout comes for trial participants, best we spread the word far and wide. 

How about a temporary statutory defence (for THC detection) being afforded to participants registered in the studies recommended and supported by the Victorian parliamentary review? 

And for similar studies (seemingly) endorsed by the NSW review and soon to be debated on the floor of parliament?

“The biggest hidden hold up is securing clinical trial participants for a THC and driving study. A study which would prevent them from driving while the research is being carried out.” 

The more people who don’t have to put their regular lives on hold in order to wind back the mysteries and wonders of cannabinoid science, the faster this bloody research is going to get done. 

The biggest hidden hold up is securing clinical trial participants for a THC and driving study. A study which would prevent them from driving while the research is being carried out. 

If parliamentarians allow absurdities like this to stand then our grandchildren are on track to living in an idiocracy where sugary electrolyte drinks are what plants crave.

Meanwhile, those of us in NSW and Victoria can ensure our votes go to candidates with some chance of setting up a balance of power in our upcoming state elections. 

It’s problematic for faith in our courts if growing numbers of people feel that the rule of law is not there to protect them, but seemingly out to harm them by removing their right to drive a vehicle and participate in as functional a life as possible. 

The more people who feel that way, the more the laws are ignored and violated.

When punishment that is solely punitive (and not at all remedial) is handed down by courts to people that the overwhelming majority of the population don’t deem to have acted like criminals, that’s when you can say the rule of law has been undermined. 

  • Mat Henderson is the principal lawyer of Reparation Legal and legal lead for Drive Change. Nothing in this article is intended to be construed as legal advice. For the full version, click here

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