Wednesday, 22 February 2023
Road Safety Amendment (Medicinal Cannabis) Bill 2023
Road Safety Amendment (Medicinal Cannabis) Bill 2023
Statement of compatibility
David ETTERSHANK (Western Metropolitan) (09:56): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this statement of compatibility with respect to the Road Safety Amendment (Medicinal Cannabis) Bill 2023.
In my opinion, the Bill as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of bill
The purpose of the Road Safety Amendment (Medicinal Cannabis) Bill 2023 is to amend the Road Safety Act 1986 to provide that it is not an offence for a driver of a motor vehicle’s blood or oral fluid to contain medicinal cannabis that is prescribed and taken in accordance with that prescription.
These amendments do not apply to a driver of a motor vehicle who is impaired, or incapable of having proper control of a motor vehicle.
Human rights issues
Human rights protected by the Charter that are relevant to the Bill:
The Road Safety Amendment (Medicinal Cannabis) Bill 2023 does not limit any human right, rather it engages and promotes the right to equality before the law set out in section 8 of the Charter.
Consideration of reasonable limitations – section 7(2)
As the Bill does not limit any human rights, it is not necessary to consider section 7(2) of the Charter.
I consider that the Bill is compatible with the Charter.
David Ettershank MP
Member for the Western Metropolitan Region
Legalise Cannabis Victoria
David ETTERSHANK (Western Metropolitan) (09:56): I move:
That the bill be now read a second time.
This bill is premised on a very simple principle: people who have been prescribed a medicine by a registered medical practitioner, and can drive safely, should be allowed to drive. This is how we treat every single prescription medicine in Victoria, except one, medicinal cannabis.
The Victorian government, through its landmark and commendable reforms, has helped countless people by providing safe and legal access to medicinal cannabis. Victoria led this country in legalising access to locally manufactured medicinal cannabis products. Where other medical options have failed, medicinal cannabis has provided life-changing relief for people suffering severe muscle spasms or severe pain resulting from multiple sclerosis, for people with severe pain, nausea, vomiting or wasting arising from cancer or HIV/AIDS, for people suffering from severe seizures resulting from epileptic conditions and for people with severe chronic pain and a range of other serious health conditions.
I would like to put a human face on this issue. This is the de-identified story of a real patient. I want to tell you about John.
John is a military veteran who served his country with valour and dedication. John experiences both significant pain from injuries sustained as part of that service and also suffers from PTSD.
John is prescribed antidepressants for his PTSD and opioids to manage his pain, in addition to sleeping medication for both conditions. John wrestles with the side effects of these strong medications and the addictiveness of the opioids.
He had previously been prescribed medicinal cannabis and found that it relieved both his pain and PTSD, and he endured none of the same side effects.
But John needs to drive as part of his employment, and while he would much prefer to be prescribed medicinal cannabis, he knows that a single random drug test would see him lose his drivers licence and, inevitably, his job.
Does this make sense to anyone in this place? Surely not.
For many Victorians, medicinal cannabis has truly given them their lives back. The ability to function. The ability to move. The ability to go about life’s basic daily activities that most of us just take for granted.
But in a cruel twist, what we give with one hand in Victoria, we take away with the other – denying those same Victorians who have gained their lives back the ability to get to work, to get to the shops, their independence – because we deny them the right to drive a car. Not because it is unsafe for them to drive, but because of a failure at law.
It is not fair. It is not right. It is not based in science. It is not based in evidence. It is stigma.
We don’t criminalise the person whose ADHD or Parkinson’s treatment includes amphetamine-derived products for driving their motor vehicle if they are not impaired. We don’t criminalise the person whose chronic pain treatment is an opioid-derived medication for driving their vehicle if they are not impaired. We applaud when access to modern medication gives them back a level of independence to go out into the community. So why do we take a different approach to someone prescribed medicinal cannabis by a medical practitioner?
For medicinal cannabis patients even the most minute trace can result in prosecution, conviction, and the loss of licence.
What we know is that cannabidiol – or CBD – medications, which are non-psychoactive and therefore non-impairing, often contain trace amounts of THC that are detectable at the roadside.
And tetrahydrocannabinol – or THC – medications, which can have a psychoactive effect, will be detectable long after any impairing effect has ceased to exist and long after it is safe for the patient to drive. In blood, for example, THC can be detected for up to 30 days – likely 29 days and 20 hours after it would have been entirely safe for that patient to drive.
A month! A month after a driver consumes their legally prescribed medicinal cannabis they could still be at risk of losing their licence, their independence and quite possibly their livelihood.
The Road Safety Amendment (Medicinal Cannabis) Bill 2023 proposes a modest change to the Road Safety Act 1986, to allow people, like John, who have been prescribed medicinal cannabis to drive – so long as they can drive safely.
The bill provides that it is not an offence for a person’s blood or oral fluid to contain lawful medicinal cannabis that is prescribed by a medical professional and taken in accordance with that prescription.
This exception does not apply to a driver of a motor vehicle who is impaired, or incapable of having proper control of a motor vehicle – ensuring that these changes do not affect the safety of other road users. If you drive whilst impaired, it will remain an offence.
Let there be no doubt whatsoever as to our position in proposing this reform: no driver should place the lives of others at risk on our roads, full stop.
But as the law stands, Victorians like John, who would benefit from medicinal cannabis, are forced to choose less effective and often more dangerous medications, such as an opioid or a benzodiazepine, simply because driving with a residual amount of THC could mean the loss of their drivers licence or criminal penalties.
This is where our existing law fails.
Jurisdictions with similarly controlled prescription-only access pathways for medicinal cannabis, including the United Kingdom, New Zealand, Germany, Norway, and Ireland, all have a medical defence for drivers, like the one that Legalise Cannabis Victoria proposes here today.
Closer to home, Tasmanian law provides a medical defence for driving with the presence of prescribed medicinal cannabis.
For the benefit of Victorians suffering in pain, it is time we did the same. People like John deserve to live the fully supported life this reform enables.
Turning to the bill, clause 1 sets out its purpose.
Clause 2 provides for the bill’s commencement.
Clause 3 provides that certain offences in section 49(1) of the Road Safety Act 1986 do not apply to a person whose blood or oral fluid contains delta-9-tetrahydrocannabinol from a cannabis product that is consumed lawfully, having been prescribed by a medical practitioner and taken in accordance with that prescription.
This clause does not apply to persons who are incapable of having proper control of a motor vehicle or are impaired by a drug while driving a motor vehicle – dangerous conduct of that type remains an offence for which Victoria Police have existing powers and procedures in place.
Clause 4 provides for the automatic repeal of the amending act.
This is reform that will reduce stigma and it will stop driving patients back towards other dangerous and addictive medications.
The Victorian government has already taken proactive steps on this subject. In the last term of Parliament, our President Mr Leane, then a minister in the government, said in this chamber in response to Ms Patten’s bill of the same purpose:
… we are really keen to work with her on this particular issue. We are going to work with Ms Patten on the outcome to ensure people are not disadvantaged by taking … medication.
In response to the working group report that followed, then acting police and emergency services minister Mr Pearson said:
This report is another important tool that will enable us to make evidence-informed policy decisions about medicinal cannabis use and driving in the future.
That future has arrived. The evidence is apparent and it is time for reform.
This is a sensible and pragmatic bill that Legalise Cannabis Victoria commends to the house.
Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (10:05): I move:
That debate on this matter be adjourned for two weeks.
Motion agreed to and debate adjourned for two weeks.