31st of July 2024, 10:44am
Legislative Council of Victoria, Melbourne
David ETTERSHANK (Western Metropolitan):
I rise to speak on motion 437 standing in my name. Our motion calls on the government to provide protection and certainty for tens of thousands of Victorians who have been prescribed medicinal cannabis by their doctor and yet risk losing their licence every time they drive.
It is a very simple proposition: people who take a lawful pharmaceutical medicine in accordance with their doctor’s directions and who are unimpaired should be allowed to drive without fear of losing their licence.
Medicinal cannabis is a prescribed medication. People who take it lawfully and responsibly should be allowed to drive, but unlike other law-abiding Victorians who take some form of prescription medication, medicinal cannabis patients are unique in having to choose between their health and wellbeing and their drivers licence. Let us be clear: we are talking about law-abiding citizens.
Medicinal cannabis products typically contain one or two key compounds: delta-9-tetrahydrocannabinol, or THC, which is the psychoactive compound; and cannabidiol, or CBD, a non-psychoactive compound. CBD is used by hundreds of thousands of Australians to treat conditions including inflammation and anxiety.
CBD produces no impairment. Multiple studies have determined that even high doses of CBD have no impact on driver ability. Unfortunately, because of the production process, it is not uncommon for trace elements of THC to found in a CBD product.
Our systems can metabolise alcohol fairly quickly. I think the rule of thumb is one standard drink per hour, so one can determine with a fair degree of accuracy whether a person is impaired because of their blood alcohol reading.
This is not the case with THC, traces of which can be detected in a person’s system long after they have consumed it and long after they have demonstrated any impairment. Our roadside drug tests screen only for presence, not impairment, and our road laws mandate that if a medicinal cannabis patient tests positive for THC at a roadside drug test, they will lose their licence, even if they took their medication hours or days beforehand and even if the driver can present their prescription and was clearly unimpaired.
There has been a raft of academic research here and overseas confirming that THC has minimal impact on driver impairment. In fact a recent study comparing various classes of drugs revealed that a typical medicinal cannabis dose was no more impairing than two over-the-counter antihistamines used by hay fever sufferers.
People prescribed opioids or benzodiazepines are allowed to drive. Both of these prescribed drugs can have profound side effects on drivers, including drowsiness, confusion, dizziness and even tremors.
Both of these drugs can also be and are bought illicitly and used recreationally, yet no-one doubts that people who are prescribed these drugs are taking them responsibly in the manner recommended by their doctor.
We do not automatically suspect that they are taking them for reasons other than to manage legitimate health conditions. We do not treat them as criminals. Why then are we so sceptical of medicinal cannabis patients?
Why do we assume that people taking legally prescribed medicinal cannabis are not going to do so responsibly, that they are really just trying to circumvent the law? Why do we treat medicinal cannabis consumers like criminals? The scepticism is based on stigma and ignorance and the outdated yet persistent myth that all cannabis consumers, including medicinal cannabis patients, are reckless stoners. When are we going to get over this?
The fact is just about everyone in this place has a friend or a family member that uses medicinal cannabis. I know from personal discussions that there are many members in this place who also use THC- or CBD-based products.
Do these friends and family members deserve to be denied access to not only their vehicles but also due process before the courts? Medicinal cannabis has been legal in Victoria since 2016. Why is it taking so long for our road laws to reflect this?
Because make no mistake, our outdated roadside drug testing regime has been causing harm to Victorians for eight years now. We hear from them every day.
Let me tell you about Brett. Brett is a tradie who was badly injured in a car accident in 2019. He almost lost his leg. He was in hospital for over five months and had a total of 16 operations.
His rehabilitation took a further three years. Initially he used opiates to control the pain but found they made him moody, irritable, tired and nauseous. With medicinal cannabis he found he could manage his pain without all the debilitating side effects that he suffered while on opiates.
Brett never drives when impaired. He does not want to risk losing his licence if tested at a random roadside drug test, and without a license he would lose his income. Because of this risk, Brett has tried to stop taking medicinal cannabis and just learn to live with the pain.
But he says that on a bad day the pain from his injuries is so debilitating that he simply must take his prescribed medicinal cannabis. It is pretty rough to have to make a choice between having a pain-free day or risking losing your licence, but it is a choice that tens of thousands of Victorians taking medicinal cannabis must make every single day. Why should anyone have to make that choice?
It is a dilemma that former Premier Daniel Andrews seemed very alive to back in February of last year, when he said he did not want anyone to avoid alleviating pain or other symptoms for fear of losing their licence.
He said, ‘I don’t want people to feel they can’t access that care because we don’t have fit-for-purpose drug driving laws and we don’t have a test that can test for impairment.’ Sadly, that is exactly what people feel: that they cannot access the care they need because of our road laws. He also recognised the limitations of roadside drug testing when he said:
You’re either positive or negative. It’s a binary thing when you may not be impaired at all.”
Well let us consider that binary thing or what that binary thing means for medicinal cannabis consumers. In its recent inquiry into workplace drug testing, the Legal and Social Issues Committee received evidence from, and of, first responders who took CBD to treat their workplace injuries and ended up paying a steep price.
Just to remind members, CBD products are not psychoactive and do not cause impairment. They do, however, often contain minute traces of THC, which can trigger a positive result in either workplace or roadside drug tests. And that is what happened to these first responders. They got caught up in workplace-based drug testing because of the trace elements of THC in their CBD.
In many cases it cost them their jobs or it cost them their reputations, and in most cases it also cost them extended periods of litigation. But at least those employees, for the most part, could appeal and claim a defence. That same employee would have no access to any such defence if they were pinged behind the wheel. It is far too binary. It is just wrong, and it is totally un-Australian.
So what are we going to do about it? The government seems to be inching towards a resolution, and we acknowledge that the government is funding a closed-track driving trial to assess driver performance. But that trial will not be completed in a best case until mid-2026, leaving no likelihood for any policy or legislative changes in this term of the Parliament.
Medicinal cannabis patients will continue to be discriminated against and disadvantaged for at least another three years. That will be 11 years since medicinal cannabis was made legal, and that is just grossly unfair.
We are simply asking that until the completion of the trial and subsequent legislation is passed by this Parliament, the government establishes a legal defence for medicinal cannabis prescription holders.
There are a number of mechanisms by which the government could put this defence in place, but there are certain principles that we contend should apply.
Currently people charged with the presence of THC in their system can go to court, but if found guilty, they cannot fight their loss of licence. We see that as indefensible.
That there is no capacity to contest the decision would appear to be completely at odds with our state’s long-established commitment to due process and natural justice. The magistrate may take into account that driving is that person’s sole means of getting to work, getting their kids to and from school and getting their elderly parents to medical appointments.
But even if the magistrate is convinced of that person’s reliance on driving and their unimpaired state, they have no discretion other than to reduce the amount of the fine that may apply. They cannot address the loss of licence.
I would like to talk about the financial burden that a loss of licence places on people and the way it uniquely compounds discrimination. Obviously for those who rely on their cars to get to work or who drive as part of their jobs a loss of licence leads to a loss of income. But let us add to that the cost of having to pay for other forms of transport.
If you live in an area with few public transport options – my region of Western Metropolitan is a very good example – the cost of getting to medical appointments, to job interviews, to schools and to work can be crippling.
Our justice system demands that medicinal cannabis patients, who may already be under financial pressure, should not only be criminalised but also suffer financially to the point where they have to quit their jobs, sell their businesses and sell their houses just to treat the health issue.
That is not prosecution; that is persecution.
Secondly, when you look at the other drugs we test for at the roadside – MDMA and methamphetamines, ice and ecstasy – there is really no comparison, is there? Apart from the fact that there is no licit way to acquire ice and ecstasy, we know that even a small dose of ice can impair drivers significantly and ecstasy has stimulant and hallucinogenic properties.
No-one should be driving around tripping. Prescribed medicinal cannabis is not comparable to either, yet our driving laws treat them as the same.
Our main contention is that drivers who hold a current prescription and are taking their medicinal cannabis responsibly should be tested for impairment if stopped at a roadside drug test rather than for the mere presence of THC.
There are some who argue that it is difficult to prove impairment. I have a problem with that on two levels. Firstly, the police are trained in how to conduct standard field impairment tests to determine just that. We know this because it is part of their curriculum at the police academy and because every year around 100 people are convicted of impaired driving due to the presence of THC. They already do it.
The issue is not that the police cannot do it but rather that it is a lot easier to just get a conviction for presence, and that is why there are around 7000 presence convictions every year compared to around 100 convictions for THC-related impairment.
Secondly, police whinge about successfully prosecuting for impairment being difficult. Well, hello – who the hell said getting a conviction should be easy?
The onus of proof should fall on the prosecutor to prove that the respondent is guilty, that that driver was impaired when tested. Why should patients have to prove their innocence?
We are simply asking for prescribed medicinal cannabis patients to enjoy the same rights as any other Victorian: to have their day in court with due process and with a presumption of innocence. And that is not, I would suggest respectfully, a radical ask.
In short, a legal defence for the presence of THC in their system is a concept entirely consistent with our legal system and its key principles. To the naysayers I say that it is all very workable. In fact, a similar defence is already in operation in Tasmania.
Under Tasmania law medicinal cannabis is treated the same as any other lawfully prescribed medication. In Tasmania, as in Victoria and the rest of Australia, it is an offence to drive with illicit drugs present in your system, so if you test positive for THC at a roadside drug test in Tasmania, medicinal or not it will be treated as an illicit substance.
But if the driver produces a valid medicinal cannabis prescription and they are not impaired, they are not charged with the offence because they are not breaking the law.
It seems to be working just fine. There have been no discernible increases in road injuries or fatalities since the law was changed, and even the Tasmanian police seem entirely relaxed about these laws.
I want to be very clear: people who are impaired should not be behind the wheel of a car, ever. If a person is driving impaired for whatever reason and they get pulled over, they should not get off.
Throw the book at them, by all means – they are a risk to themselves and to their community. But I will say it again: people who take a lawful pharmaceutical medicine in accordance with their doctor’s directions should be allowed to drive without fear of losing their licence. Medicinal cannabis is a prescribed medication. People who take it lawfully should be allowed to drive.
Medicinal cannabis patients have now been waiting for eight years to be afforded the same rights as any other people on prescribed medication. It is only fair that they be afforded a defence while this trial over the next three years is being undertaken. They should not have to wait a further three years.
Last year the former Premier prioritised this issue and said we need to find a way through this.
We believe our new Premier shares this vision. The government needs to address this issue as a matter of urgency. It cannot be kicked down the road in the hope that it gets picked up in the next term of Parliament. We seek your support for this motion.
[ENDS]
