Legislative Council: Wednesday, February 22, 2023


Statutes Amendment (Medicinal Cannabis Defence) Bill

Introduction and First Reading

The Hon. S.L. GAME (16:26): Obtained leave and introduced a bill for an act to amend the Harbours and Navigation Act 1993, the Motor Vehicles Act 1959 and the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. S.L. GAME (16:27): I move:

That this bill be now read a second time.

It is a privilege to introduce the Statutes Amendment (Medicinal Cannabis Defence) Bill 2023 to the chamber. As a result of federal legislative changes in 2016, South Australian patients can access medicinal cannabis containing THC. For some health issues, CBD medicines are not enough and so the sufferer requires medicines containing THC for effective treatment. THC medicines are prescribed for use before bed and any impairment wears off while the patient sleeps, yet traces can still be found in a patient's system hours or sometimes days after.

Let me be clear: I am in no way advocating that a patient should be allowed to drive while impaired after taking cannabis medications. This bill brings us into line with current regulations in Tasmania and recommendations in many other states. Other countries do not have random drug testing stations the way we do in Australia and only test after observing signs of impairment. This bill would allow for a complete defence for medicinal cannabis motorists when THC is detected in the person's fluid or blood when (1) the person has a valid doctor's prescription for the medicine containing THC, (2) the person is not involved in dangerous or reckless driving, and (3) the officer cannot establish impairment in the person.

A senior executive in the Public Service told me that he was given a choice between tramadol or medicinal cannabis by his doctor. He says that tramadol was not an option as the side effects make it impossible for him to perform his significant responsibilities effectively and safely; hence, he has no choice but to choose medicinal cannabis. Even though he only takes a cannabis medicine a couple of times a week, he said he was forced to quit driving due to current drug laws. It is highly nonsensical that this gentleman can legally drive with tramadol in his system but cannot with THC without regard for lack of impairment. He says the presence in the blood does not automatically equate to impairment.

Others tell me about their struggle to decide whether to be healthy and pain free while breaking the law, or to be in pain with unmanaged mental health so that they can drive legally. For many, being able to drive is crucial for employment to support themselves and their families and to contribute to their communities. This bill does not nor has it any intention of offering a defence to driving under the influence laws. Driving under the influence laws make it an offence to drive while under the influence of any drug, as to be incapable of exercising effective control of a vehicle.

THC is an active ingredient in medicinal cannabis. It is provided as a treatment option from a pharmacist on prescription from authorised medical practitioners; couple this with the South Australian Labor government recently giving South Australia Police the power to immediately strip motorists of their licence upon detection of THC. Therefore, a defence must be implemented to protect medicinal cannabis patients who are also responsible drivers.

This bill is based on existing rules in Tasmania, which allow a defence for medicinal cannabis patients when THC is detected at the roadside, so long as the motorist is not impaired while driving. Medicinal cannabis can be accessed for conditions including paediatric and adult epilepsies, multiple sclerosis, various types of pain and to treat side effects from chemotherapy and HIV/AIDS therapy.

Australia is the only country with a widespread random mobile drug detection program for the detection of THC. Other jurisdictions—for example, the Netherlands, Belgium and France—have legal limits for THC in oral fluid, but typically only request samples when there is evidence of impaired driving. In Canada, where cannabis use was legalised entirely in 2018, oral fluid tests, such as those used in Australia, can be used to confirm a suspected case of drug-impaired driving but only when an officer can first demonstrate impaired driving.

A Canadian study published on 1 November 2021 in the Drug and Alcohol Dependence journal, volume 228, concluded there was no increase in traffic injuries following medicinal cannabis legalisation. A 2021 Australian study, published in the International Journal of Drug Policy, volume 97, concluded that:

There is little evidence to justify the differential treatment of medicinal cannabis patients compared with those taking other prescription medicines with potentially impairing effects.

Opioid and benzodiazepine patients do not have to fear penalties, provided they are not impaired when behind the wheel. THC can be detected in oral fluid for hours or days following abstinence. In blood, THC can be detectable for up to 30 days. This, understandably, causes law-abiding medicinal cannabis patients to face heightened anxiety whenever they need to drive, regardless of their capacity to drive. This could turn off medicinal cannabis patients from driving altogether, which threatens the increasing isolation of those suffering from poor mental health and disability.

At least prior to the government's recent change, drivers were afforded 28 days for their oral fluid to be forensically analysed to capture system errors. We all want safer roads, but instead of discriminating against responsible drivers with serious health challenges let us work on improving impairment testing methods, such as imaging techniques or studying concentration levels that cause impairment, putting the focus back on targeting the dangerous and reckless drivers, rather than those who want to feel well.

As previously mentioned, this bill does not offer a defence to driving under the influence laws. I put this bill forward for a commonsense approach. Medicinal cannabis is a legally recognised prescribed medication and the law needs to acknowledge this to stay relevant. The government should support my bill to ensure law-abiding patients are not stripped of their licence through no wrongdoing of their own.

Debate adjourned on motion of Hon. I.K. Hunter.