Thursday, 16 November 2023
Bills
Transport Legislation Amendment Bill 2023
Bills
Transport Legislation Amendment Bill 2023
Committee
Resumed.
Clause 1 further considered; clause agreed to; clauses 2 to 55 agreed to.
Clause 56 (14:03)
Jeff BOURMAN: It is no secret, my problem with impaired driving, and I understand that this is a test about that. But in a time of a spiralling road toll – I was even reading the paper earlier today, and there was yet another fatality yesterday on country roads – I think this is sending an extremely poor message. We were 21 per cent above last year’s road toll, which was a little bit above the previous year’s road toll. If you look at it as a graph, it was going down for a while, which was good, and it got to 180-something. But it has been climbing up slowly. In the context of what is going on, now is not the time. One of my problems with legalising drugs of dependence, particularly marijuana, has been the ability to test for impairment. Whilst this test purports to do that – it is not a new program; it has been done before – I do not think it is going to end up doing that. So at this point in time I honestly believe we should not be doing that. It should be shelved until we have got the road toll under control and in a position where this is probably a bit more appropriate.
Harriet SHING: Thank you, Mr Bourman, for your contribution on clause 56 and for the view which you expressed in the second-reading stage of this bill prior to it coming into committee. I appreciate the position that you take in relation to lives lost on our roads, and nobody in this chamber will disagree that the tragedy and the impact of lives lost on our roads touches too many people. To the point that you have just made about, to paraphrase you, shelving this trial until the road toll is under control –
Harriet SHING: It is a quote, Mr Bourman – to quote you on that. That would mean that we were not pursuing a greater understanding of the impacts of various factors on the ability of drivers to act in a safe way. This trial in fact provides us with a measure of opportunity through research to understand the impacts of THC on driver behaviour and therefore then to understand and to progress the discussion about the way in which medicinal cannabis containing THC might materially impact on broader public safety. This is a not dissimilar application of research and evidence-based trial to the work that is being undertaken in fatigue studies and in studies around the impact and influence of excessive speed and of driver distraction.
We have, in comparison to the impact of other substances, a relatively limited understanding of the impact of THC and the degree to which it may be safe for someone to drive or be in charge of a vehicle after consuming THC through medicinal cannabis. This is impacted by the lack of a capacity to understand that in a variety of settings, which goes to the points I made in response to Mr McCracken and Mrs Hermans’s questions before, about getting that greater understanding in a safer – I won’t say ‘safe’, because it is ‘safer’ – and controlled environment through that closed-circuit track trial.
Now, clause 56 does insert that new provision into the Road Safety Act 1986, and in the first instance it does involve that degree of safety assessment for control of a vehicle after consuming or using a drug and/or alcohol or while affected by fatigue or for informing the development of methods to be used by police officers in assessing to what degree a person driving or in charge of a vehicle is impaired by a drug, a combination of drugs, a combination of drugs and alcohol, or fatigue. This will enable us, as was discussed extensively in the second-reading debate, to continue Victoria’s world-leading road safety research into alcohol, drugs and fatigue. An example of this is the proposed medicinal cannabis and safe driving trial, which you have referred to as the rationale for your disagreement and lack of support for this particular provision. That will take an evidence-based approach to better understanding the potential impairment effects and to inform that policy response.
The enforcement of road safety laws is the responsibility of a range of different parts of government – local government, state and Commonwealth government – and indeed the authorities that are charged with and are in a position to enforce the rules. Designation of the road safety research trial is about making sure that we can in the safest environment possible, in a controlled closed-circuit environment, require trial participants to perform actions, such as driving under the influence, which are otherwise prohibited by the Road Safety Act 1986. To your opening remarks, Mr Bourman, the fact that this trial is proposed to be enabled and that framework is proposed to be established through the passage of this bill, where this provision remains intact, does not change the reality that through lives lost on our roads we can see that driver distraction, fatigue, mobile phone use including distraction, drugs, alcohol and speed are all already having a devastating impact around Christmas tables, dinner tables and family get-togethers.
This is a measured and evidence-based approach to understanding impact and evolving our understanding of the distinction between presence and impairment. We are currently working on a number of road safety research trials which may require use of this amendment: the medicinal cannabis track trial, a fatigue detection operational field trial and a drug impairment field trial involving ocular-based technology. We are exploring the possibility of a closed-circuit trial, as I said, to investigate those levels of impairment and to evolve our understanding of the distinction between presence and impairment. It is not a linear path through the law. It is, for a number of reasons, something which affects people in different ways: the way that people metabolise THC, the existence of other conditions and a treatment framework which may involve other medications that may in combination or on their own alter people’s capacity to react within times that are safe and meet the responsibilities that we all as road users can reasonably be expected to have. We have commenced an investigation of the different options available to conduct a track trial, and the idea is that the trial will look at the level of impairment produced by medicinal cannabis as well as evaluating driving performance. This is about having more information rather than less, the latter of which is the current status quo.
It will be conducted in a controlled driving environment, physically separated from public roads – which I indicated to Mr McCracken and Mrs Hermans earlier in response to their questions – with extensive safety considerations for all participants and research staff being a priority. The development of the trial design will also include ethical and legislative considerations. But to come back to the purpose and the rationale for this trial, Mr Bourman, we want to make sure that we have a better understanding of how THC contained in medicinal cannabis impacts driving performance in different patient cohorts and under different circumstances and how this then translates into risk on our roads. This then will mean we can better understand the relationship between THC concentrations, driving performance and road safety risk to aid that potential regulatory reform.
This is not intended in any way, shape or form to provide a measure of permission for people to operate a vehicle under the influence of drugs or alcohol where that influence constitutes a risk to public safety. In fact nothing could be further from the truth. This is about getting a greater understanding of risk and of impairment because of presence. We want to make sure, as I answered – and I do not believe you were in the chamber for the beginning of this committee stage – that criteria are determined by reference to patient groups, those currently prescribed medicinal cannabis containing delta-9 tetrahydrocannabinol, so THC, for common health conditions seen in Victoria, and that we will undertake that in a location which does prioritise safety. That is a summary, Mr Bourman, that I hope may provide you with a measure of comfort around the nature of the trial.
But we know that medicinal cannabis use is increasing as a therapeutic option. This is work which is not ever undertaken lightly by this government. The former Premier met with a little boy called Cooper, and you may well remember that Cooper has been to Parliament a number of times. Cooper suffers from really devastating seizures, and he was instrumental in the work to change policy. His quality of life has improved exponentially. And Cooper is only one example – one significant example – of the work that is being achieved through a therapeutic administration of cannabis. We acknowledge the increasing role of medicinal cannabis as a therapeutic option for certain individuals with certain health conditions, and relevantly to this particular provision, it is a trial that is necessary as it relates to people who have a genuine driving need. The road safety evidence base regarding actual individuals prescribed medicinal cannabis for a therapeutic purpose is not fully evolved, so it is really important that we take those very cautious steps in a controlled, closed-circuit setting to understand the risk profile of these individuals.
Under the data that we have available to us, there has been an increase of more than 700 per cent in the number of patients prescribed medicinal cannabis in Victoria. That is an 1100 per cent increase since the first dispensing of medicinal cannabis began in 2021. We have done a lot of work, but we still have gaps in understanding what that impact looks like. It is a significant cohort of people who are using and relying upon medicinal cannabis for quality of life, and there is an overlap there with driving need. In order to close that gap in our understanding we do want to make sure that we are taking a very, very careful, measured and evidence-driven approach.
There will be an assessment. There will be capacity for evidence to inform future recommendations and decisions. The final parameters of the trial are yet to be determined, but it is about understanding how we identify low-risk medicinal cannabis users who may – and again I underscore the term ‘may’ – be able to drive, provided that the road safety impacts for them and, as importantly, other road users are minimal or mitigated. So in that sense it is proposed to be part of a very careful understanding of what we do to recognise the reality of a driving need for people within that cohort of those prescribed medicinal cannabis and more broadly the work that we are doing – and people touched on this – from safety belts through to blood alcohol content and testing, through to the work that has happened with fixed and mobile speed cameras as an important deterrent and through to the prohibition on using mobile phones whilst driving.
We have got a lot of work to do, but this is an important part of making sure that we understand the inherent risks associated with operating very large, very heavy pieces of machinery on our roads at speed and doing all we can to understand what that impact and what that risk profile might look like when that person is a person using medicinal cannabis with a driving need, as I have talked you through earlier. I hope that that provides you with some detail. It is not about promoting drug driving. This is not about sending any message at all that use of a drug should not be a careful consideration in operating a vehicle and should be simply allowed. This is about making sure that we never ever compromise safety for operators of vehicles and for other road users and that we have a solid and cautious approach to developing policy.
Mr Bourman, that is what I would say in response to your position. I do appreciate where you are coming from, and in fact I think where you are coming is the same place that government is coming from, though perhaps we diverge on the ways in which we then move on. We need to make sure that safety on our roads is the priority here. We therefore need to understand what impact, risk and impairment look like, and that is why clause 56 is proposed in the terms that it is.
Jeff BOURMAN: Thank you, Minister, for your very, very, very fulsome answer. You did cover quite a lot in there. I understand what you say and appreciate what you say. I also do not agree. That is the good thing about this place: we can have a contest of ideas. But during the course of your response a question came to me. Let us assume that we come up with a way of testing for THC that is okay for medicinal cannabis people and we write that into legislation. Is that level of impairment or non-impairment or however you want to put it going to then automatically or likely – and I understand this is almost asking for a opinion – go to people that do not have a medicinal use for cannabis and are just recreational users? If alcohol was regulated to the point of being by prescription, for instance – .05 for those with a prescription – what would happen to those without a prescription? What is the intent? Is it to end up with a community-wide response to this? I cannot find a way of just making it work for prescription only.
Harriet SHING: There are actually a couple of issues that are intertwined in the question that you have just asked. The closed-circuit track trial contemplated by clause 56 is about understanding risk through presence and impairment and contributing factors around a cohort of users of medicinal cannabis. That cohort will vary in their demographic, as I have indicated in response to earlier questions. People who may be prescribed medicinal cannabis may also have been prescribed and be using other prescription medication. They may also have side effects as a consequence of taking that other medication, such as fatigue. We are undertaking the preparation or the contemplation of a closed-circuit trial to understand what that impairment and the corresponding risk looks like.
The separate issue which you have raised, and I understand that you are therefore looking for answers about ‘What happens if?’, is how to operationalise any policy decision about impairment. There are all sorts of scenarios and circumstances in which that will be a live set of conversations to have, but this is only about setting up the framework for a trial. This is not about any decision other than – well, it is not a decision; it is about an understanding of presence, impairment and risk, and the way in which we determine that needs to be very, very carefully and safely undertaken in the way that I have described. So this is about a foundation of research and about the application of factors to understand what the influence and the impact of medicinal cannabis use looks like.
When you talk about an implementation component to any change, which is what you flagged in your contribution, you are then contemplating what it looks like to try to understand the distinction between medicinal cannabis use and recreational cannabis use and the way in which regulation might occur around understanding different measures of impairment. We have, again coming back to this point, a limited understanding and appreciation of the distinction between blood alcohol content and impairment, which we have a relatively settled view on, and the other factors that are at play for something such as cannabis containing THC.
We have a relatively recent Victorian study that investigated the likelihood of detection of medicinal cannabis with THC using roadside drug-testing equipment, and the results of that test revealed that most positive detections occurred within 3 hours of consumption – and that was consistent with the typical impairment window for THC – and that tolerance to the impairing impacts of THC and the detectable levels of THC in blood at any given time after use could be influenced by various factors, including prior cannabis usage. They are the sorts of elements to the variability of this issue, which I touched on in my earlier response to your first question. The rate of positive detections declined thereafter at each hourly time point up to 6 hours after consumption, where only a small number of confirmed positive detections occurred.
So there are a series of intricate variables here, and that is why in the contemplation of a closed-circuit track trial there has been significant work across government and road safety partners including Victoria Police, the Department of Justice and Community Safety, the Transport Accident Commission, the Department of Health and the Department of Transport and Planning to investigate those new measures, testing policies and penalties that more effectively address drug driving in Victoria. Again, research is a really big part of this. The Monash University Accident Research Centre is obviously one of the examples of world-leading research into risk and impairment, and research will be, as it has been in all of the work that we have undertaken with them, a key part of understanding broader impacts of driver behaviour in circumstances where road use then occasions a risk to them or to somebody else.
Jeff BOURMAN: I guess I will just finish up before we get down to business. I support medicinal cannabis use. I have personally been touched by the road toll. I will not go into details, but I just do not like the concept. Too many people drive with drugs in their system now that are not taking medicinal cannabis, and I just think this sends the wrong message. I will leave it at that. We could debate for hours, but I think I will just leave it at that.
Council divided on clause:
Ayes (35): Matthew Bach, Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, Gaelle Broad, Katherine Copsey, David Davis, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Renee Heath, Ann-Marie Hermans, Shaun Leane, David Limbrick, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nick McGowan, Tom McIntosh, Evan Mulholland, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt
Noes (2): Jeff Bourman, Rikkie-Lee Tyrrell
Clause agreed to.
Clauses 57 to 129 agreed to; schedule 1 agreed to.
Reported to house without amendment.
That the report be adopted.
Motion agreed to.
Report adopted.
Third reading
That the bill be now read a third time.
In doing so I want to thank the many people who have contributed to its preparation, including but not limited to those who have worked so hard in relation to clause 56 and the closed-circuit track trial as it relates to a very specific area of public policy and the law.
Motion agreed to.
Read third time.
The DEPUTY PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.