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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-03 Daily Xml
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Bills

Road Traffic (Medicinal Cannabis) Amendment Bill

Introduction and First Reading

The Hon. T.A. FRANKS (16:38): Obtained leave and introduced a bill for an act to amend the Road Traffic Act 1961. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:39): I move:

That this bill be now read a second time.

It is not the first time the issue of medicinal cannabis and driving while a legally prescribed medicinal cannabis patient has been raised in this place. Before I go much further, I credit the work of the Hon. Kelly Vincent in the previous parliament. I also note that the bill, which is based on a fair, just and effective system for drug-driving laws for medicinal cannabis patients, is very much based on the work of Drive Change, and their wonderful leadership on this issue must be recognised.

Medicinal cannabis patients generally reduce the use of other impairing prescription drugs, such as opioids and benzodiazepines. In some states of the United States, where legal medicinal cannabis is present, they have seen no increase in road toll statistics. Indeed, there is no evidence in the Australian road toll that there has been any impact as a result of the mouth swabs for cannabis in making our roads safer.

However, patients who seek legally available prescription medication, if it is cannabis, are denied the ability to have a medical defence when it comes to drug-driving charges and drug-driving detection. Germany provides such a defence if the driver is not impaired. Ireland provides such a defence if the driver is not impaired. New Zealand, Norway and the United Kingdom all provide such a defence if the driver is not impaired.

However, on mainland Australia, because Tasmania already covers this ground, such a defence is not available. In Australia, the average medicinal cannabis patient is a 49 year old. This is not somebody who is undertaking this lightly. The most likely reason they are taking the medication is for pain, anxiety or multiple sclerosis. Indeed, 60 per cent of the legal products that are available are oil based, which means that the THC within them, should there be THC within them, is metabolised at a very slow rate.

Yet, of some 35,000 active legal medicinal cannabis patients in our nation, some 70 per cent of whom are taking a medication with THC in it in some form are not able to legally drive on mainland Australia should they fall foul of our drug-driving detection systems, and our drug-driving detection systems are more profound and present than ever. In the last few years, the approximate number of roadside drug tests undertaken annually in South Australia was 49,000 or so.

Of those tests, the saliva or mouth swab test would detect an amount of THC in that person's saliva for some 24 to 72 hours after the cannabis had been taken. Should it be a blood test, it can detect it for six days after the cannabis was taken. A urine test is actually an entire month after it was taken and a hair follicle test may detect it for some three months. Yet, the peak period at which somebody might be impaired, if they are to be impaired by this medication, would be some two to three hours after taking the medication.

Tests that find it three days, almost a week, or a month to three months after it has been taken clearly are not testing for impairment, they are testing for presence. Presence does not mean impairment, yet that very presence at a first offence could see somebody facing a fine of over $1,000 or disqualification of their licence. Should they not go to court, the expiation fees start at $803 and upwards. These are quite serious penalties.

A second or third offence sees further punitive actions being able to be taken against a patient who is simply seeking a medication; as I noted, the most likely common cause being for pain, anxiety or MS. Medicinal cannabis is prescribed for a range of reasons, including disordered eating. As many members are aware, it has now been legal in Australia since 2017.

Our prescribing system is developing, but GPs are successfully prescribing medicinal cannabis for a range of reasons in our state, yet often those patients find themselves, say with chronic pain or fibromyalgia, unable to take the very medication they know will help them. In fact, they often know it will help them to function more safely in our society with less chronic pain, but they know that they will fall foul of our drug detection laws should they take the medication, and not just for two to three hours after taking the medication but for days and weeks after taking the medication.

In effect, this makes it impossible for a patient. They risk losing their licence, they risk losing their access to work or to the usual leisure activities enjoyed by all in South Australia should they find themselves the subject of a roadside drug test or should they find themselves in an accident and subject to the various other testing regimes that would take place then.

We heard today in the Balcony Room in this parliament from Adjunct Professor David Heilpern. He has been a magistrate for some 21 years, but he is a magistrate no longer because last year he actually quit over this very issue and he is now the lead agent in the campaign to drive change. Former magistrate Heilpern was joined at that round table by a local doctor, an Adelaide GP and member of the Australian chapter of Cannabis Clinicians and the Australian Medicinal Cannabis Association, Dr Joel Wren, acting in his own individual capacity.

Dr Wren gave us evidence of the difficult situation patients are put in, having to choose between taking the medication they know will help them or not falling foul of these particular laws that are not present in other countries, are only present in Australia, and that only detect presence not impairment. They are in some ways nonsensical laws due to that.

They have been identified as laws worthy of this bill before us today by no less than the Australian Lawyers Alliance. I draw members' attention to their press release of today, which reads:

Current drug driving laws are not fair to drivers who can lose their license for taking prescribed cannabis when this is no evidence of impaired driving…

To quote Sarah Vinall, the South Australian state President of the Australian Lawyers Alliance:

'Current drug driving laws in South Australia are simply not fair...People lose their license, and sometimes their job, not because of impaired driving, but because of flawed laws.

They go on to say:

'We support the bill introduced today because it will fix this unfair and outdated law that severely penalises medicinal cannabis patients.

'Drivers who take opioids or other prescription medication do not find themselves in court or risk losing their license, and neither should drivers who have taken a prescribed and legal dose of cannabis.

'These drug driving laws were developed before cannabis became a legally recognised prescribed medication and the law needs to change to stay relevant.

Currently, it is illegal to drive with any presence of [THC] detected, regardless of whether a person is impaired. This makes cannabis the only prescription medication—

the only prescription medication—

that excludes an individual from driving completely.

'We urge all legislators in South Australia, and the South Australian government to support this Bill.'

This bill is replicating a bill in Victoria that has received the support of the government there. The Hon. Fiona Patten MLC in Victoria introduced last year an almost identical bill, and there, in cooperation with the Andrews government, has referred that off to a task force, which late last year reported back to the parliament and continues to meet.

Indeed, a great body of work has been done in Victoria with the police and with other stakeholders to try to find a model that will ensure that medicinal cannabis patients can safely take the prescription medication their doctor believes is suitable for them but not find themselves further criminalised by drug-driving laws that have not kept pace with the legalisation of medicinal cannabis.

It is cited as a major barrier to patient access, and that was identified during the recent Senate inquiry. That Senate inquiry identified the reform of driving laws as one of the key recommendations of the Community Affairs References Committee. That was certainly backed by many involved in the inquiry and, most notably, the Lambert initiative, which recommended options for law reform here. Again, I will leave the final words today to then Magistrate Heilpern, who stated:

Throughout the thousands of cases I dealt with, the police were never able to allege that the person was showing any signs of affectation. They weren't wobbling as they walked, they weren't slurring their words, they didn't have bloodshot eyes. Most, if not all, of the people who are prosecuted in NSW have a level of THC in their bodies that bears no connection to their ability to drive safely.

Ultimately, these laws should be completely abolished. There is simply no justice in these laws and the way they're applied, particularly for those who are using cannabis medicinally. They're a waste of money, they're a waste of police time, and they aren't achieving any of their aims. It's high time we got rid of them.

That is what the then magistrate was quoted as saying, and I could not agree more. With that, I commend the bill to the council.

Debate adjourned on motion of Hon. J. E. Hanson.

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