The simple tweak that could allow medicinal cannabis users to drive

Victoria will explore creating a legal defence for motorists who use medicinal cannabis and are not impaired while driving, potentially protecting those who test positive behind the wheel if they have a prescription.

The review was secured through a motion by Legalise Cannabis MP David Ettershank, which passed through parliament with an amendment on Wednesday.

Legalise Cannabis MPs Rachel Payne (left) and David Ettershank.Credit: Simon Schluter

Ettershank’s original motion called for the government to “immediately establish a legal defence for medicinal cannabis prescription holders charged with the presence of drugs in their system, if they were taken in accordance with a prescription and [users] were not impaired when tested”.

Labor agreed to back the motion with new wording that instead asked the government to “consider a proposal” for this new type of legal defence, while an 18-month trial measuring how medicinal cannabis affects drivers is conducted.

The amendment also spells out that the government will consult legal and road safety experts and table a report on the issue by October 18.

The motion and amendment passed without opposition from Labor, Coalition and crossbench MPs in state parliament’s upper house.

Victoria was the first state in Australia to legalise medicinal cannabis, in 2016. But it remains illegal to drive with any trace of THC – a compound found in cannabis that can remain in the body for days – in your system.

The Allan government estimates there has been a 700 per cent increase in medicinal cannabis users over the past two years.

The government this year provided Swinburne University with $4.9 million to conduct the trial to measure the impact of medicinal cannabis and whether it impairs drivers.

In June, Legalise Cannabis launched a campaign for legal protection for those with a prescription who test positive to THC on roadside tests while the trial is under way.

Legalise Cannabis MP Rachel Payne said the government had committed to working with her and Ettershank to find a solution.

“If you test positive to THC at a roadside drug test, it is an instant loss of licence – whether you are a legally prescribed medicinal cannabis patient or not,” she said.

“The law is black and white and magistrates don’t have any discretion. This is wrong.

“Patients taking lawfully prescribed medication shouldn’t be discriminated against or criminalised, when driving unimpaired, just because their medication contains THC.”

Labor MP Michael Galea said 400,000 Victorians had used medicinal cannabis and the government’s amendments were about embracing options available to help those in the group who need to drive.

“We are ensuring that we are doing it in a measured and methodical way, that we are doing it in that research-led and driven way and that we are seeking that appropriate counsel and guidance from among others, road safety experts,” Galea told parliament.

“This is an important space of reform that [the] government is interested in.”

Georgie Crozier, the leader of the opposition in the upper house, told parliament that a legal defence was sensible but only for those with severe medical conditions and a prescription.

“This is medicinal cannabis that is prescribed and very tightly controlled and regulated because of the dangers of THC and what THC can do,” she said.

“However, for those that do have severe medical conditions and are prescribed medicinal cannabis and test positive, they should have that right to a legal defence.”

John Ryan, the chief executive of the Penington Institute, which works to reduce drug-related harm, said the change was common sense.

“It is heartening to see the Victorian government stand up and acknowledge the flaws with the existing policy,” Ryan said.

“Medicinal cannabis patients who are not impaired and are using their medication as directed by their doctor should be entitled to the same legal protections currently afforded to patients taking other prescribed medications.

“People should not have to decide between their medicine and mobility.”

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