New South Wales drivers who use medicinal cannabis and return a positive result at a roadside drug test would be spared prosecution under new laws being put forward by the upper house MP Jeremy Buckingham.
It is illegal in NSW to drive with any amount of THC, a pyschoactive component of cannabis, in your body even if you have a prescription. THC can show up in roadside drug tests days after the initial period of impairment has worn off.
But Buckingham, the leader of the Legalise Cannabis party, will on Wednesday introduce legislation to NSW parliament to grant exemptions for drivers with a legitimate prescription.
The current laws pose a problem for patients like Dale Dunster, who uses medicinal cannabis for Parkinson’s disease and other chronic health conditions and takes a small amount of oil containing THC at night to help her sleep.
Dunster, who worked at a bank and ran a bakery before a decade-long stint as a community nurse, describes herself as living a “very conservative” life and someone who never tried drugs before getting a prescription for cannabis oil.
As she lives in a rural area outside Ballina on NSW’s north coast, the 73-year-old has to rely on getting a lift if she needs to get into town.
“I try to be fairly independent. I’ve still got my own car … I’d be really pleased if the legislation was achieved,” she said.
“People having all these painkillers and opioids – it’s not illegal for them to drive.”
David Gunn, a GP, says he sees between 80 and 100 patients each week who take medicinal cannabis and believes roadside drug testing exemptions can be safely introduced in NSW.
“If a person is going to a pharmacy and picking up the cannabis medication and taking it properly they don’t have an illegal drug in their body,” he said.
“Unfortunately, it’s very common for patients to choose not to use medicinal cannabis [because of] the fear and anxiety of driving, knowing they could be penalised for it,” he said.
Under the proposed law changes, a person taking prescribed THC products in accordance with their doctor’s instructions would be able to defend in court a charge relating to a positive roadside drug test. These patients would have to be driving unimpaired in order to be granted the legal defence.
Buckingham said he was not proposing any changes to roadside impairment tests or to the separate criminal offence of driving under the influence.
“This is how every other legal medication is dealt with. And that’s what we want for medicinal cannabis,” Buckingham said.
“We think that the laws have to change because it’s a huge disincentive for doctors to prescribe it and for people to take their medicine if they risk losing their licence.”
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A former Greens MP, Buckingham became the Legalise Cannabis party’s first NSW MP at the March election and said the roadside drug testing exemption was the minor party’s “highest priority”.
He was reviving an earlier, unsuccessful attempt by the Greens to pass the same sort of exemption through NSW parliament under the former Coalition government.
Buckingham quit the Greens in 2019 after a sexual harassment allegation, which he strenuously denied. He said he had no issues working with his former colleagues in parliament and he expected the Greens and other crossbenchers to support his bill.
Tasmania is the only Australian jurisdiction with a medical defence for driving with the presence of THC in body fluids. The Victorian government is working on trialling allowing a small number of medicinal cannabis users to drive.
Prof Iain McGregor, who leads the University of Sydney’s Lambert Initiative for Cannabinoid Therapeutics, hoped the new government in NSW would be open to a similar trial.
“A cautious legislative reform in this area would be the right thing to do by patients,” he said. “It wouldn’t cause any major problems on our roads,” he said.
While there was appetite within NSW Labor for drug reform before the election, the Minns government is yet to commit to anything apart from promising to hold a drugs summit next year.
The premier, Chris Minns, has acknowledged the “huge” uptake of medicinal cannabis in NSW but said resolving how these patients could drive without breaking the law was problematic.
“It’s hard because impairment is really difficult to determine,” he said at the time.
People taking medicinal cannabis products that contain only CBD – a chemical found in marijuana but does not contain THS – are allowed to drive in NSW.
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