Parliament of Victoria | Legislative Council | Adjournment
David ETTERSHANK (Western Metropolitan Region):
My adjournment matter is for the Attorney-General in the other place, and it relates to an inconsistency in the Road Safety Act 1986 which is impacting medicinal cannabis patients who are caught in roadside drug testing.
In November 2024, thanks to Legalise Cannabis Victoria’s campaign on behalf of medicinal cannabis patients, Parliament amended the Road Safety Act 1986 to allow courts to exercise discretion in relation to the licence cancellation of a driver who tests positive for THC and has a lawful prescription for medicinal cannabis.
The reforms, which commenced in March, recognise the legitimate therapeutic use of cannabis and allow magistrates to employ a fair and discretionary approach aimed at preventing unfair penalties for drivers who use their medication responsibly, as prescribed by their doctor, and are not impaired when tested.
However, the intent of this reform is being undermined in practice due to procedural and legislative barriers, and people are still being placed in a situation where they face a criminal record simply for using their medication as prescribed. This is due to section 59(1)(b) of the Criminal Procedure Act 2009, which explicitly states that offences under the Road Safety Act 1986 are excluded from eligibility for court-ordered diversion.
The combined effect of these provisions is that magistrates are not able to apply the discretion that was intended by the amendment, even in cases where a person’s conduct was entirely lawful under the Drugs, Poisons and Controlled Substances Act 1981.
This outcome undermines the legislative intent of the 2024 reforms. The action I seek is that the Attorney-General immediately resolve this conflict and implement a solution to enable medicinal cannabis patients to actually access the discretion of the court, as the Parliament intended.
Written Answer
Received: 16 December 2025
Hon. Sonya Kilkenny MP
(Attorney-General, Minister for Planning)
I thank the Member for his enquiry.
The Roads and Road Safety Legislation Amendment Act 2024, which commenced in March 2025, amended the Road Safety Act 1986 to allow the court discretion to decide whether to cancel a person’s driver’s licence where they test positive for any delta-9-tetrahydrocannabinol (THC) and they are using prescribed medicinal cannabis.
This amendment was focused on giving the court discretion in a situation where a mandatory licence cancellation would otherwise be required. However, it does not legalise drug-driving and the court may still cancel an offender’s licence or disqualify them from obtaining a licence if appropriate.
Section 59(1)(b) of the Criminal Procedure Act 2009 limits the ability of a drug-driving offence under section 49(1) of the Road Safety Act 1986 to be adjourned for diversion programs and the government is not currently of the view that access to these programs needs to be broadened for prescribed medicinal cannabis users.
The court retains the discretion to sentence within the maximum penalties set out in s 49(3AAA) of the Road Safety Act 1986. If appropriate, this may include a sentence of up to 120 penalty units for repeat offenders or a lower penalty such as a conditional adjournment or dismissal, if appropriate.
The government will continue to monitor the research and emerging evidence on cannabis use in the Victorian context and remains committed to work to reduce harm associated with cannabis through coordinated effort and evidence-based action.
[ENDS]
