Update 11 August 2022:
The parliamentary inquiry has published its report here and recommended that the Legislative Council proceed to debate the Road Transport Amendment (Medicinal Cannabis-Exemption from Offences) Bill 2021.
The committee elected not to take a position on the bill, despite substantive witness evidence relating to the impact of the current law, broad community support for the use of medicinal cannabis and the availability of exemptions in other jurisdictions.
NSWCCL made a submission to the NSW Legislative Council's Standing Committee on Law and Justice Inquiry Into The Road Transport Amendment (Medicinal Cannabis Exemptions From Offences) Bill 2021.
NSWCCL supports the passage of the Bill, which addresses discriminatory, inequitable and out of date presence-based drug driving practices targeting medical cannabis patients. NSWCCL agrees that those patients in Australia who are legally prescribed medicinal cannabis should be exempted from prosecution for driving with Delta-9-tetrahydrocannabinol (THC) in their system, unless there is clear evidence of impairment.
Currently THC is a prescribed illicit drug and driving with an illicit drug present in blood, oral fluid or urine is an offence. The Bill amends the Act by creating an exemption where the THC was obtained and administered in accordance with the Therapeutic Goods Act 1989 or an identical state law. The defence can only be made if THC is the only substance present in the sample.
A medical defence already exists for those found driving with morphine present in their system if it was consumed for medicinal purposes. Morphine is considered more dangerous than medical cannabis “both on and off the road”.
NSWCCL agrees with the Legislation Review Committee call for greater clarity concerning the onus of proving the elements of the defence. If the exemption is to act as a defence, then the onus of proving the THC was used in accordance with law rests on the defendant on the balance of probabilities. The Crown will bear the onus of proving that the THC was not used in accordance with law by proving it was not used for medicinal purposes or was not obtained or administered in accordance with the Therapeutic Goods Act 1989. Given a person may experience high financial penalties and lengthy licence disqualifications, it is important the legislation is drafted with sufficient clarity.
For more information, read the full submission.