Wednesday, 31 July 2024

Motions

Medicinal cannabis

David ETTERSHANK (Western Metropolitan) (10:44): I move:

That this house notes that:

(1) since 2016 medicinal cannabis has been prescribed in Victoria and provided life-changing relief for many Victorians;

(2) Victoria’s driving laws treat medicinal cannabis patients like criminals, causing many to avoid their medication, putting their health at risk;

(3) no other legally prescribed medication attracts this discrimination;

(4) medicinal cannabis should be treated like other prescribed drugs which incur no offence if the driver is taking them as directed and is not impaired;

(5) roadside drug testing is designed to measure presence rather than impairment, making it unreliable;

(6) in 2022–23 over 7000 Victorians were charged for presence alone, compared to around 100 charged for impairment;

(7) the resulting loss of licence is devastating for those who rely on driving to access work, education and health services;

(8) in addition to the closed-circuit track trial, the government has funded:

(a) a report by the medicinal cannabis and safe driving working group;

(b) a Monash University study into drivers who use medicinal cannabis;

(c) two Swinburne University of Technology studies into roadside screening;

(9) there have been multiple driving trials similar to that proposed by the government;

and calls on 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 were not impaired when tested, and ensure this defence operates until the completion of the trial and subsequent legislation is passed by the Parliament.

I rise to speak on motion 437 standing in my name. Our motion calls on the government to provide protection and certainty for tens of thousands of Victorians who have been prescribed medicinal cannabis by their doctor and yet risk losing their licence every time they drive. It is a very simple proposition: people who take a lawful pharmaceutical medicine in accordance with their doctor’s directions and who are unimpaired should be allowed to drive without fear of losing their licence. Medicinal cannabis is a prescribed medication. People who take it lawfully and responsibly should be allowed to drive. But unlike other law-abiding Victorians who take some form of prescription medication, medicinal cannabis patients are unique in having to choose between their health and wellbeing and their drivers licence. Let us be clear: we are talking about law-abiding citizens.

Medicinal cannabis products typically contain one or two key compounds: delta-9-tetrahydrocannabinol, or THC, which is the psychoactive compound, and cannabidiol, or CBD, a non-psychoactive compound. CBD is used by hundreds of thousands of Australians to treat conditions including inflammation and anxiety. CBD produces no impairment. Multiple studies have determined that even high doses of CBD have no impact on driver ability. Unfortunately, because of the production process, it is not uncommon for trace elements of THC to be found in a CBD product.

Our systems can metabolise alcohol fairly quickly. I think the rule of thumb is one standard drink per hour, so one can determine with a fair degree of accuracy whether a person is impaired because of their blood alcohol reading. This is not the case with THC, traces of which can be detected in a person’s system long after they have consumed it and long after they have demonstrated any impairment. Our roadside drug tests screen only for presence, not impairment, and our road laws mandate that if a medicinal cannabis patient tests positive for THC at a roadside drug test, they will lose their licence, even if they took their medication hours or days beforehand and even if the driver can present their prescription and was clearly unimpaired. There has been a raft of academic research here and overseas confirming that THC has minimal impact on driver impairment. In fact a recent study comparing various classes of drugs revealed that a typical medicinal cannabis dose was no more impairing than two over-the-counter antihistamines used by hay fever sufferers.

People prescribed opioids or benzodiazepines are allowed to drive. Both of these prescribed drugs can have profound side effects on drivers, including drowsiness, confusion, dizziness and even tremors. Both of these drugs can also be and are bought illicitly and used recreationally, yet no-one doubts that people who are prescribed these drugs are taking them responsibly in the manner recommended by their doctor. We do not automatically suspect that they are taking them for reasons other than to manage legitimate health conditions. We do not treat them as criminals. Why then are we so sceptical of medicinal cannabis patients? Why do we assume that people taking legally prescribed medicinal cannabis are not going to do so responsibly, that they are really just trying to circumvent the law? Why do we treat medicinal cannabis consumers like criminals? The scepticism is based on stigma and ignorance and the outdated yet persistent myth that all cannabis consumers, including medicinal cannabis patients, are reckless stoners. When are we going to get over this?

The fact is just about everyone in this place has a friend or a family member that uses medicinal cannabis. I know from personal discussions that there are many members in this place who also use THC- or CBD-based products. Do these friends and family members deserve to be denied access to not only their vehicles but also due process before the courts? Medicinal cannabis has been legal in Victoria since 2016. Why is it taking so long for our road laws to reflect this? Because make no mistake, our outdated roadside drug-testing regime has been causing harm to Victorians for eight years now. We hear from them every day.

Let me tell you about Brett. Brett is a tradie who was badly injured in a car accident in 2019. He almost lost his leg. He was in hospital for over five months and had a total of 16 operations. His rehabilitation took a further three years. Initially he used opiates to control the pain, but he found they made him moody, irritable, tired and nauseous. With medicinal cannabis he found he could manage his pain without all the debilitating side effects that he suffered while on opiates. Brett never drives when impaired. He does not want to risk losing his licence if tested at a random roadside drug test, and without a licence he would lose his income. Because of this risk, Brett has tried to stop taking medicinal cannabis and just learn to live with the pain. But he says that on a bad day the pain from his injuries is so debilitating that he simply must take his prescribed medicinal cannabis. It is pretty rough to have to make a choice between having a pain-free day or risking losing your licence, but it is a choice that tens of thousands of Victorians taking medicinal cannabis must make every single day. Why should anyone have to make that choice?

It is a dilemma that former Premier Daniel Andrews seemed very alive to back in February of last year, when he said he did not want anyone to avoid alleviating pain or other symptoms for fear of losing their licence. He said:

I don’t want people to feel they can’t access that care because we don’t have fit-for-purpose drug driving laws and we don’t have a test that can test for impairment.

Sadly, that is exactly what people feel: that they cannot access the care they need because of our road laws. He also recognised the limitations of roadside drug testing when he said:

You’re either positive or negative. It’s a binary thing when you may not be impaired at all.

Well, let us consider that binary thing or what that binary thing means for medicinal cannabis consumers. In its recent inquiry into workplace drug testing, the Legal and Social Issues Committee received evidence from, and of, first responders who took CBD to treat their workplace injuries and ended up paying a steep price. Just to remind members, CBD products are not psychoactive and do not cause impairment. They do, however, often contain minute traces of THC, which can trigger a positive result in either workplace or roadside drug tests. And that is what happened to these first responders. They got caught up in workplace-based drug testing because of the trace elements of THC in their CBD. In many cases it cost them their jobs or it cost them their reputations, and in most cases it also cost them extended periods of litigation. But at least those employees, for the most part, could appeal and claim a defence. That same employee would have no access to any such defence if they were pinged behind the wheel. It is far too binary. It is just wrong, and it is totally un-Australian.

So what are we going to do about it? The government seems to be inching towards a resolution, and we acknowledge that the government is funding a closed-track driving trial to assess driver performance. But that trial will not be completed in a best case until mid-2026, leaving no likelihood for any policy or legislative changes in this term of the Parliament. Medicinal cannabis patients will continue to be discriminated against and disadvantaged for at least another three years. That will be 11 years since medicinal cannabis was made legal, and that is just grossly unfair. We are simply asking that until the completion of the trial and subsequent legislation is passed by this Parliament the government establish a legal defence for medicinal cannabis prescription holders. There are a number of mechanisms by which the government could put this defence in place, but there are certain principles that we contend should apply.

Currently people charged with the presence of THC in their system can go to court but, if found guilty, they cannot fight their loss of licence. We see that as indefensible. That there is no capacity to contest the decision would appear to be completely at odds with our state’s long-established commitment to due process and natural justice. The magistrate may take into account that driving is that person’s sole means of getting to work, getting their kids to and from school and getting their elderly parents to medical appointments. But even if the magistrate is convinced of that person’s reliance on driving and their unimpaired state, they have no discretion other than to reduce the amount of the fine that may apply. They cannot address the loss of licence.

I would like to talk about the financial burden that a loss of licence places on people and the way it uniquely compounds discrimination. Obviously for those who rely on their cars to get to work or who drive as part of their jobs, a loss of licence leads to a loss of income. But let us add to that the cost of having to pay for other forms of transport. If you live in an area with few public transport options – my region of Western Metropolitan is a very good example – the cost of getting to medical appointments, to job interviews, to schools and to work can be crippling. Our justice system demands that medicinal cannabis patients, who may already be under financial pressure, should not only be criminalised but also suffer financially to the point where they have to quit their jobs, sell their businesses and sell their houses just to treat the health issue. That is not prosecution; that is persecution.

Secondly, when you look at the other drugs we test for at the roadside – MDMA and methamphetamines, ice and ecstasy – there is really no comparison, is there? Apart from the fact that there is no licit way to acquire ice and ecstasy, we know that even a small dose of ice can impair drivers significantly and ecstasy has stimulant and hallucinogenic properties. No-one should be driving around tripping. Prescribed medicinal cannabis is not comparable to either, yet our driving laws treat them as the same. Our main contention is that drivers who hold a current prescription and are taking their medicinal cannabis responsibly should be tested for impairment if stopped at a roadside drug test rather than for the mere presence of THC.

There are some who argue that it is difficult to prove impairment. I have a problem with that on two levels. Firstly, the police are trained in how to conduct standard field impairment tests to determine just that. We know this because it is part of their curriculum at the police academy and because every year around 100 people are convicted of impaired driving due to the presence of THC. They already do it. The issue is not that the police cannot do it but rather that it is a lot easier to just get a conviction for presence, and that is why there are around 7000 presence convictions every year compared to around 100 convictions for THC-related impairment. Secondly, police whinge about successfully prosecuting for impairment being difficult. Well, hello – who the hell said getting a conviction should be easy? The onus of proof should fall on the prosecutor to prove that the respondent is guilty, that that driver was impaired when tested. Why should patients have to prove their innocence? We are simply asking for prescribed medicinal cannabis patients to enjoy the same rights as any other Victorian: to have their day in court with due process and with a presumption of innocence. And that is not, I would suggest respectfully, a radical ask.

In short, a legal defence for the presence of THC in their system is a concept entirely consistent with our legal system and its key principles. To the naysayers I say that it is all very workable. In fact, a similar defence is already in operation in Tasmania. Under Tasmania law medicinal cannabis is treated the same as any other lawfully prescribed medication. In Tasmania, as in Victoria and the rest of Australia, it is an offence to drive with illicit drugs present in your system, so if you test positive for THC at a roadside drug test in Tasmania, medicinal or not it will be treated as an illicit substance. But if the driver produces a valid medicinal cannabis prescription and they are not impaired, they are not charged with the offence because they are not breaking the law. It seems to be working just fine. There have been no discernible increases in road injuries or fatalities since the law was changed, and even the Tasmanian police seem entirely relaxed about these laws.

I want to be very clear: people who are impaired should not be behind the wheel of a car, ever. If a person is driving impaired for whatever reason and they get pulled over, they should not get off. Throw the book at them, by all means – they are a risk to themselves and to their community. But I will say it again: people who take a lawful pharmaceutical medicine in accordance with their doctor’s directions should be allowed to drive without fear of losing their licence. Medicinal cannabis is a prescribed medication. People who take it lawfully should be allowed to drive. Medicinal cannabis patients have now been waiting for eight years to be afforded the same rights as any other people on prescribed medication. It is only fair that they be afforded a defence while this trial over the next three years is being undertaken. They should not have to wait a further three years.

Last year the former Premier prioritised this issue and said we need to find a way through this. We believe our new Premier shares this vision. The government needs to address this issue as a matter of urgency. It cannot be kicked down the road in the hope that it gets picked up in the next term of Parliament. We seek your support for this motion.

Michael GALEA (South-Eastern Metropolitan) (11:00): I am pleased to rise to speak and share a few remarks on motion 437, which was put to us today by my colleagues Mr Ettershank and Ms Payne, and I am pleased to share a few words on that. At the outset I think it is important to take a moment to note that we have come a long way now since 2016, when Victoria became the first state in the nation to implement the medicinal cannabis program, at the time a perhaps even controversial reform but one that has proven itself to be eminently justifiable and eminently worthwhile to Victorians, especially those 400,000 Victorians who have had the direct benefit of medicinal cannabis to treat a range of conditions. It is good to see that this is a reform that has by and large been accepted by the Victorian community, because this is a reform that is ultimately about helping people with their ailments. If medicinal cannabis is the best way to do it, then absolutely we should be using medicinal cannabis to treat those ailments.

I also want to at the outset acknowledge that this government does acknowledge the challenges that medicinal cannabis patients face, particularly in the field of what we are discussing today, and that is driving with THC levels in your system and the debate that we are having around proving impairment. I note, indeed as my colleague Mr Ettershank has, the comments by both the current and in particular the former Premier, who have shared remarks and acknowledged the need for us to address this issue. It is one of the reasons, in fact one of the significant reasons, why we have implemented what is in fact a world-leading trial for measuring the effects of cannabis – of THC levels in the system – on drivers, and I will come back to some remarks on that in just a moment.

I think it is important to note as well all the conditions that medicinal cannabis can treat. There are far too many to name, but one is epilepsy. Epilepsy affects thousands and thousands of Australians. In fact each year the Epilepsy Foundation of Australia estimates that 171 people with epilepsy die from sudden unexpected death. It is in fact a leading cause of death in people with these uncontrolled seizures, and it goes to show the need for medicinal cannabis and such treatments, because it can be not just about supporting people with pain but also in some cases indeed life saving.

So this has an important role to play. For those 400,000 Victorians, as they deal with driving whilst taking their treatment, it is an unfair position for us to be putting them in – to be saying, ‘You can’t drive or you can’t have this treatment which is saving your life or even making your life a whole lot less painful.’ That is why it is really important that we do have this trial. I note the exuberance, indeed including from Minister Horne. We heard from her in the Public Accounts and Estimates Committee just a few months ago, during estimates, with some questions around this particular trial. It is good to see what this is actually going to do, and I am looking forward to seeing the results of that trial.

We know that medicinal cannabis use in Victoria has increased by quite a large number over the past two years, but whilst that use has increased there are still those gaps in the global evidence about the impact that THC can have on drivers. That is why we have invested $4.9 million into this trial, which will be the first of its kind in the world. It is going to be a closed-track trial mimicking real-world driving conditions, and the researchers will be reviewing participants’ ability to manage distractions and assessing their driving performance, including steering, braking and speed control. I think it is important to note that there is that evidence gap globally. Whilst there have been other studies done, there have been no studies that have been as comprehensive as the Victorian study, nor have there been any studies that have gone into the full, real-world driving situations that we are looking at, which is obviously the most important data that we can get. I note and share some words from Dr Thomas Arkell from Swinburne University, which is undertaking this trial, who says:

When it comes to making policy decisions, you need to know that evidence is robust and applicable as it can be to a real-world environment …

We know very little about medical cannabis. We have quite a bit of research looking at cannabis generally, but we’re looking at the same plant and compound used for very different reasons and in very different amounts.

I do want to say that this trial is important. It is important that we do get this research and get this information as best we can. I note that it is not a delaying tactic; it is about maintaining road safety and preventing any adverse consequences that cannot be foreseen without the required data – data that this trial seeks to provide us with.

In saying that, I do note with some appreciation the intent of the motion before us today, which has been put to us by Mr Ettershank, and I note again the government’s in-principle support for measures which support medicinal cannabis patients and their ability to drive. Whilst we do have some issues with some parts of the wording, I believe there is a way forward in which we can support this, and that is with a few amendments. I move:

1. In paragraph (2), omit the words ‘like criminals’ and replace them with ‘indiscriminately’.

2. In paragraph (5), omit the words and expressions ‘, making it unreliable’.

3. Omit paragraph (9).

4. Omit all words and expressions in the final hanging paragraph and replace them with ‘and calls on the government to: (a) consider a proposal to establish a legal defence for medicinal cannabis prescription holders charged with the presence of THC in their system, if they were taken in accordance with a prescription and were not impaired when tested, (b) ensure that this proposal includes widespread consultation with a range of legal and road safety stakeholders, and (c) table a report on this proposal in the Legislative Council by no later than 18 October 2024.’

In addition to some minor wording changes in the opening paragraphs, the thrust of the changes put forward in my amendments changes the final call to action in this motion. If adopted, the motion would read at the final paragraph:

and calls on the government to: (a) consider a proposal to establish a legal defence for medicinal cannabis prescription holders charged with the presence of THC in their system, if they were taken in accordance with a prescription and not impaired when tested, (b) ensure that this proposal includes widespread consultation with a range of legal and road safety stakeholders, and (c) table a report on this proposal in the Legislative Council by no later than 18 October 2024.

As I believe members will be able to see, this set of amendments is designed not to stifle what has been put forward by Mr Ettershank today – in fact quite the opposite. It is about embracing this and embracing whatever steps we can take in order to make life easier for people on medicinal cannabis who do need to drive. But 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, amongst others, road safety experts. This is an important space of reform that government is interested in, and it is very good to see that the chamber is interested in it as well.

With the wording in my amendments here today I am hopeful that we will be able to find a path forward as a chamber to support this motion, because as I say, it is a very important motion for the people who are most directly affected, again noting that some 400,000 Victorians have at some point taken up medicinal cannabis. By taking this measured approach I believe that we can find a path forward together and that we can achieve what has been sought to be achieved here by the Legalise Cannabis Victoria party. I am looking forward to continuing to work with colleagues from that party and indeed from across the chamber in coming to ways in which we can continue to support the use of medicinal cannabis for patients in Victoria and to make their lives as easy as we can, because this is a government that is about, amongst other things, putting patients first. It is important that we consider the whole lived aspect of their needs and not just the treatment itself. I commend the amendment to the house, and if it is adopted, I will be very happy to support this motion.

Georgie CROZIER (Southern Metropolitan) (11:10): I rise to speak to motion 437 in Mr Ettershank’s name in relation to medicinal cannabis and the ability for people that are using medicinal cannabis to be able to drive and not be prosecuted. I have just been listening to the debate, and I want to actually agree with Mr Galea. I am a bit disappointed that I got your amendments on the run; we possibly should have had time to consider them. But I was going to make the point that this is a very badly worded motion, in my view, and that the government’s amendments actually are the points that I wanted to make in relation to the contribution. I think, in terms of the final part of your amendment, it is really what Mr Ettershank, when he was briefing us, was saying that this was about, which is that there could be a legal defence for those that are picked up with medicinal cannabis – or THC, more likely – in their system. The Liberals and Nationals think that is fair and reasonable, just as is done in other states and also with alcohol, and that it can be appropriately used. We have no problem with that.

What I will say at the outset is that we – and I think I am in agreement with the government as well – are concerned about road safety and the risks. I will read this in again in relation to the inquiry that I sat on in the last Parliament. An inquiry was undertaken, and the assistant commissioner Mr Weir told that inquiry – I read it in previously when Mr Ettershank brought his bill before the Parliament last year, but this is in relation to the THC component, and I am not convinced that that has been discussed and that there is enough evidence on that. There is more work to be done on that, because that is the issue that really does have an impact on the ability to drive safely. If you look at the Australian Medical Association and if you look at others that talk about the impacts of THC, it does affect people’s coordination, their attention and their other sensory components. That is the concern here. As Mr Weir told the inquiry:

As both illicit and medicinal cannabis contain the psychoactive constituent, Delta-9-Tetrahydrocannabinol (THC), they are both known to reduce a driver’s ability to have full control of a vehicle. Cannabis can slow down reaction times, distort perception of speed and distance, reduce concentration when driving, particularly in response to emergency situations. This creates a risk for the driver, but also other occupants of the vehicle and other vehicles on the roads around the affected driver.

That is the point here: we must get this right so that those that are driving and are on the roads are not putting themselves or others at risk. But I do take the point, and I am a supporter of medicinal cannabis. I have spoken about that previously in relation to how medicinal cannabis can assist in certain physical and also some psychological or anxiety or mental health issues – but under prescription, and I think that is the point here. If medicinal cannabis is being used, as has been pointed out, like other opiates and other drugs that an individual may need to treat their particular condition and is prescribed by a practitioner, then of course it should be used in that capacity. I do understand and I totally agree with that argument, but what we need to be very careful about is the level of THC in somebody’s system and how that impacts their impairment. On the impairment issue, as Mr Ettershank said, how do you determine that? If you put somebody out under the influence of alcohol and walk them down the white line, does that determine whether they are impaired or not? But at least if you are an individual that is prescribed medicinal cannabis and you do get tested and test positive at a roadside testing, you have that legal defence and you have that ability to be able to argue that case. I think that is reasonable. As I said, I agree with the government in relation to the amendments they have just brought before the house and make that point very strongly. I hope that they are working towards that. I think that is a reasonable thing.

Obviously the Liberals and Nationals do not support the legalisation of the recreational use of cannabis, and we are concerned about not just cannabis but other illicit drugs that are very prevalent within the community. Again there is an issue around how those drugs cannot be tested with roadside testing. At some point I hope there will be an ability to do that, because they are causing many, many terrible situations and tragic outcomes through accidents and damage and very, very significant, in some aspects, crimes – driving, as they are, under the influence and as high as kites. Some users particularly need to be educated and to have that education. We need to be doing more on educating the community, especially young people, around the harmful effects of illicit drug use. I do not think the government has addressed that issue. I digress slightly from this motion. I just wanted to make the point that there is not an ability to test those people, and I am hoping that at some point that will be able to be undertaken, because it is causing too much havoc on our roads.

Just to get back to this, again I say that the Liberals and Nationals will not be opposing Mr Ettershank’s motion, but I do also want to say that I do think that the government’s amendments are reasonable and that we will be supporting them. I am disappointed that they arrived on the floor, but nevertheless I think they are a sensible addition to this. As we had the discussion with Mr Ettershank and my colleagues Ms Kealy and Mr Danny O’Brien – who are responsible for the mental health and roads portfolios, which this comes under – we did say that he really should be putting his last paragraph, paragraph (9), up the top and making that the content of the motion, because that is really what he is arguing: can people have the ability to have some legal defence if they are found to test positive? Currently the Victorian laws do not allow that.

With those words, I will leave my contribution here. I do understand that this is happening in other states. It is a sensible measure, and I think that most Victorians would also see that this is reasonable for those who are prescribed medicinal cannabis. There is a difference with that THC component. I know there is an issue there around that, and we have to be very careful that we do not open that up to say there is THC in medicinal cannabis and therefore anyone with THC can be caught up in that. That is not what I am arguing here. This is medicinal cannabis that is prescribed and very tightly controlled and regulated because of the dangers of THC and what THC can do. It has some very negative impacts on people’s ability to cognitively perform in a way that is required. 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.

Georgie PURCELL (Northern Victoria) (11:19): I rise to speak in support of this motion from my friends in the Legalise Cannabis Party today. Ever since it was legalised in our state, medicinal cannabis has changed lives and given relief to literally hundreds of thousands of Victorians. However, while this has been the case since 2016, our road laws have not reflected the changes necessary to be in line with this medical treatment advancement, proving to be outdated and unfair.

Victoria conducts over 150,000 roadside drug tests annually. These tests currently do not differentiate between prescribed medicinal cannabis and illicit use. When prescribed medication remains in a person’s system for several days it is impossible for them to produce an undetectable test despite having no impairment at the time. The psychoactive effect of THC only lasts a few hours, and those medicinal cannabis users who follow their doctor’s directions in taking the prescribed amount will not get behind the wheel in a state of impairment. For medicinal cannabis patients this means that they must choose between breaking the law and risking a loss of licence due to the lasting effects of THC in their bloodstream and taking their prescribed medicine.

As reported in the International Journal of Drug Policy, road safety risk associated with medicinal cannabis appears similar or lower than for a number of other potentially impairing prescription medications. Recent Australian research has shown that both benzos and opioids account for twice as many road-related casualties as cannabis. The approach of these THC detection based offences to medicinal cannabis patients is still built upon the historical status of cannabis as a prohibited drug with no legitimate medical application, and now that it is a doctor-prescribed pharmaceutical our laws must reflect its very real use within our community. A study of emergency department presentations in Canada, which legalised recreational cannabis use in 2018, showed no evidence of significant changes in traffic injuries due to impaired cannabis users. This further highlights the need for exemptions, given more road-related incidents occur from other substances like alcohol, prescribed antidepressants and other illicit drugs.

One constituent of mine, 71-year-old Steve, who lives in Walwa, contacted me a couple of weeks ago desperate for legal assistance to fight a positive detected-cannabis charge from 2022. Steve is prescribed medicinal cannabis for his arthritic pain as well as to help ease his crippling anxiety due to a diagnosis of PTSD. This medication assists him to carry out everyday tasks such as eating and sleeping, which are a daily struggle for Steve when his anxiety becomes all-consuming in his life. It should be noted that medicinal cannabis is often used to treat conditions such as chronic pain and sleep conditions such as insomnia which are themselves impairing, and those who have successful treatment with cannabis improve their road safety by doing so. Steve lives in fear due to the ongoing struggles from a traumatic attack and injuries decades ago. He has finally found some sense of peace and daily normalcy with his cannabis prescription, but after his roadside test in 2022, which was carried out the morning after he took his prescription, he now has the added fear of the loss of his licence and his independence and potentially a criminal record.

There are a lot of people that use medicinal cannabis and who have no choice but to rely on others for their means of transport, with further limitation for those living in regional communities like my own. We have heard of a number of examples where patients have had no choice but to leave their jobs because of losing their licences, as well as instances of detrimental isolation from communities and families, creating an even greater health risk.

The former Premier saw this very medical exemption as unfinished business for the Victorian government, with the introduction of medicinal cannabis coming in under his premiership. They have work to do to further support those who undoubtedly benefit from this medicine. I did welcome the announcement in May of a world-first trial in Victoria alongside Swinburne University to determine whether those who use medicinal cannabis can drive safely given the limited global evidence about its impacts. However, I do note that this was a commitment due to be completed this year. I note that there have been some amendments from the government today which could potentially change this.

A similar study that was also conducted by Swinburne University saw 40 people tested on a virtual driving simulator after consuming medical cannabis as opposed to a real vehicle and road, as planned in the new trials. Tasmanian drivers using legally prescribed medicinal cannabis may not be charged as long as their driving is not impaired and they can properly control their vehicle. Instead of wasting time, money and resources while continuing to treat certain Victorians as criminals, the Premier must instead follow Tasmania’s lead and allow Victorians who are unimpaired and prescribed medicinal cannabis to drive without fear of recrimination.

Victoria has seen a 700 per cent increase in medicinal cannabis use over the past two years, with an estimated 200,000 people now being impacted by these driving restrictions. If this government is to continue to make strides in this important space, it needs to consider this a basic human rights issue where we have got people who are taking a legally prescribed substance who cannot drive without the risk of a mandatory loss of licence and a fine.

This is no longer a minor issue impacting a marginal amount of cannabis users but instead a very real matter affecting real people like Steve every single day who have already been through enough trauma and enough pain in their lives. Medicinal cannabis changes and even saves lives. Those who use it should not have to choose between legitimate medical treatment and being able to drive their vehicle and connect with their communities, and I commend this motion to the house.

Jacinta ERMACORA (Western Victoria) (11:26): I am pleased to speak today on this motion to establish a defence for medical cannabis prescription holders for their presence-based offences, in particular – as has been expressed by my predecessor Mr Galea – subject to the government amendment. I thank Mr Ettershank for bringing the motion forward. The more we can consider and think about this, the better we will be with the end product.

This goes towards addressing issues faced by a number of Victorians in our community. We have to strike that balance between keeping the roads safe for everybody – for users, for pedestrians and for other drivers – and at the same time managing the rights of and providing a level of equality and justice for prescription users of cannabis in this state. At this time the government is in a position to support the amended motion, not the original one. Mr Ettershank’s motion is really worth considering and reporting back on by 18 October. We recognise the complex nature of this issue and the needs of those who are using medicinal cannabis, the patients.

We do know that THC does impair people and it can impair cognitive skills as well as motor skills – skills that are really key for driving, particularly for safe driving. This poses a risk to other drivers on the roads as well as to individuals who have impairment. Under the current drug driving laws any detectable amount of THC results in an offence, including if it relates to a person prescribed with medical cannabis. There are at present no tests available that distinguish between medicinal and recreational cannabis presence. In the five years between 2017 and 2021 on our roads we saw that 15 per cent of people killed and 12 per cent of people involved in serious-injury crashes tested positive for THC. Any impairment while driving is a risk, and an impaired driver behind the wheel of a vehicle risks causing significant trauma to themselves and others. To create a policy exempting a group of people from this extremely important section of road safety legislation is going to be challenging and must have a number of considerations, otherwise we could be actually increasing road trauma.

With the use of medical cannabis containing THC on the rise to treat a range of conditions, the Allan Labor government understands that the restrictions on patients using medicinal cannabis with THC does prevent them from driving, which undoubtably has consequences for their daily lives. The Allan Labor government are developing better advice for healthcare providers and practitioners on medicinal cannabis and driving, via an updated medicinal cannabis decision support tool. We are committed to developing a policy that is evidence based and sound – policy that takes into account the safety of all road users, including those who are medicinal cannabis patients. This year the Allan Labor government announced a $4.9 million investment in a world-first trial that will assess the effects of doctor-prescribed medicinal cannabis on a person’s ability to drive. This will enable us to close knowledge gaps and develop safe policy around new evidence and sound research. The trial, which takes place on a closed-circuit track, will answer several key research questions and close gaps in evidence relating to driver behaviour and impairment after the use of medicinal cannabis in real-world scenarios. When I say real-world scenarios, I presume that the tests will require evasive action – avoiding barriers and dangerous situations on the road – and a number of other different scenarios, including perhaps even other traffic or certain things that symbolise other traffic.

Currently research shows that THC is associated with increased risk around road safety. A study conducted by the Victorian Institute of Forensic Medicine took 5000 samples from seriously injured drivers. This study showed that any level of THC in a driver’s system almost doubles the risk of collision as compared to a driver without THC in their system. The way that level of risk and impairment is determined still remains in the scope of requiring further scrutiny. Research into the effects of medicinal THC and driving is still emerging. Most of these studies have shown that there is a moderate impact on driving in young, healthy people.

The Allan Labor government’s VictorianRoad Safety Strategy 2021–2030 sets ambitious targets to halve road deaths and significantly reduce serious-injury collisions by 2040. Under this strategy, we are delivering education across the state, trialling new technology and supporting industry to develop safer vehicles and safer infrastructure. In the 2024–25 budget we have included $4.9 million specifically to look into medicinal cannabis. Sadly, every year we see far too many deaths on our roads that could have been avoided, and that is why it is really important for us to be well informed in this space. I want to acknowledge and express my appreciation for Mr Ettershank’s really strong commitment to not wanting anyone on our roads that is impaired. I think we are all literally on the same page in that space, so it is really about how we get to that next step to do that safely.

Decisions made on road safety affect everyone, and as I have stated, we in the Allan Labor government are determined to continue to reduce the number of lives lost on Victorian roads. Any changes to policy or legislation must be considered carefully and methodically and backed in a logical way, and our view is that we absolutely want to reduce the risk of crashes occurring and minimise impacts from trauma and collision as they occur. The Allan Labor government is willing to make bold decisions when it comes to drug reform, but only when the safety of all Victorians can be guaranteed. We know the importance and increasing role that medicinal cannabis has as a legitimate therapeutic option in this space.

This is a very complex public policy space, and I think it is very important that our government is taking it very seriously and leaning in to try to get to a destination in this space. In the short term we are ensuring that health practitioners and prescribers have the best possible information available, and only after gaps in evidence are addressed through the trials can this government make some really, really strong, informed decisions. This amendment that the government is putting forward really brings together a consensus, hopefully, on taking another step in this space. I think it is very valuable that we have that consideration put forward and that we have a reporting date of 18 October 2024. It really moves it along a bit, and I think that is an incredibly positive contribution to the work of this chamber.

Aiv PUGLIELLI (North-Eastern Metropolitan) (11:36): I rise today on behalf of the Victorian Greens to support this motion from Legalise Cannabis Victoria. I also note from the outset that we will be supporting the government’s amendments, which have been handed down seemingly at the very, very last minute. Ideally, having those sooner would have been good, but we will be supporting those. I think we will all be watching very closely with particular respect to the tabling of a report on the proposal regarding consultations between legal and road professionals by no later than 18 October 2024. I think we will all be watching very closely to see what comes out of that report process.

Medicinal cannabis has improved the lives of many patients and offers relief to many people from a range of conditions, but currently those with a legal medical prescription for its use have to make the unfair decision between taking their medication and breaking the law by driving with the presence of this substance in their system. So, unlike any other prescribed medication, including classes of opioids and benzodiazepines that can also affect a person’s ability to drive, it is only medicinal cannabis where users face this choice and this legal discrimination. It is the Greens’ position that someone with a medicinal cannabis prescription should be treated the same as anybody else with any other medical prescription when it comes to the matter of driving a vehicle. We support the establishment of a legal defence for medicinal cannabis prescription holders charged with the presence of drugs in their system if they took the cannabis in accordance with a prescription and were not impaired when they were tested.

Too many people have failed roadside drug tests and lost their licence as a result of these outdated and inconsistent laws. It is not fair that someone who uses their prescribed medication as recommended by their doctor and who is not impaired while they are driving should lose their licence. People have been able to legally access medicinal cannabis since, what, 2016, and our road laws should have been updated at that time. It seems quite simple really. It is disappointing that it has taken this long to get to the driving trials for medicinal cannabis users, and it was a further slap in the face to that community when they were then delayed. The Labor government needs to get on with the process of driving trials and updating its laws to allow medicinal cannabis users to drive without the fear of losing their licence. But in the meantime providing a legal defence for medicinal cannabis users is a practical and just way to prevent more people from facing harsh penalties for simply using a substance that was legally prescribed to them by a medical professional. I commend this motion to the house.

Sheena WATT (Northern Metropolitan) (11:39): Today I rise to speak on motion 437 put up by my colleague Mr Ettershank regarding medicinal cannabis and road safety. I again reaffirm what my colleague Ms Ermacora said in that the government is happy to support the motion with our amendments as moved by Mr Galea. I can appreciate that they did come in late, so thank you to those of you who have considered that and are also lending their support. The truth is that safety should always be a priority, and the Allan Labor government has an ambitious target to halve road deaths and see a meaningful reduction in injury on Victorian roads. This strategy, running from 2021 – so yes, it is a few years in – through to 2030, has already received $263 million in funding to help support road safety in our state, with 26 different safety initiatives being undertaken within the plan. The plan also has an inclusion of $5 million of commitments in this year’s 2024–25 budget to specifically look at medicinal cannabis. Can I just say I am sure that that is an announcement that members of this bench may support as well.

The effects of medicinal cannabis on drivers are still not fully known, and I reaffirm what has been said by my colleague Ms Ermacora. The currently available studies indicate that impairment generally increases with higher THC levels in blood and saliva, but the correlation between THC levels and impairment is in fact weak and inconsistent, and medicinal cannabis formulations do vary in THC content right across the medicinal cannabis prescriptions available across the state.

The government has been researching medicinal cannabis and road safety, completing two very significant studies. The first study assessed the detection of THC in medicinal cannabis using roadside drug tests, finding most positive detections within 3 hours of consumption, with the rate of detections decreasing up to about 6 hours post consumption. Positive tests require confirmation by the Victorian Institute of Forensic Medicine. Roadside drug testing serves, I think it is fair to say, as a deterrent against drug driving for those members of the community who seek to go onto the road.

A secondary study conducted by the Monash University Accident Research Centre surveyed over 270 medicinal cannabis patients with drivers licences to further understand their driving behaviours and the advice received from health professionals. I think this is a particularly important study. The results there showed that 44 per cent of respondents had supplemented their prescriptions with illegal cannabis, which I thought was an interesting finding. Advice on driving really did vary quite significantly across medical professionals, including some patients recording that they received no guidance and others being told not to drive while feeling affected by THC, but very few patients were referred to additional information sources about driving and medicinal cannabis. I think this is a particularly telling study. These surveys and studies highlight the need for consistent evidence-based advice on safe driving for patients prescribed medicinal cannabis once there are clear evidence-based metrics and data on the road safety effects of medicinal cannabis.

As we know, and as it stands in Australia, it is currently illegal to drive with any amount of THC in your system. Most states and territories, with the exception of our southern friends in Tasmania, do not allow a medical defence for driving with prescribed medicinal cannabis containing THC. In Tasmania driving with detectable THC is only permitted if the product is obtained and administered under the Poisons Act 1971 and, importantly, the driver is not impaired. Even with a prescription, driving under the influence to the extent of impaired control remains an offence. Tasmania also requires stricter protocols for prescribing practitioners, necessitating written evidence for a medicinal defence in court. Implementing similar regulations in Victoria does face several challenges, including differences in our legislative frameworks, population density, road network size and operational arrangements. Victoria has a significantly larger number of licensed drivers, complicating our impairment testing and further exemption processes and court proceedings as well. There has been no research on the impact on road safety in Tasmania, so we are not quite sure yet if it has had an impact on road safety or not.

When it comes to the more specific question of policy in relation to cannabis use, this government no doubt has led the nation. We have taken measured and thoughtful reform steps. We have been able to ensure that these reforms deliver their intended outcomes safely and for the benefit of the Victorian community. Those of you that were around ahead of the 2014 election and actively involved in politics – that, in fact, was not me at the time – will recall that opposition leader Daniel Andrews acknowledged the benefits that access to medicinal cannabis could have for the Victorian community, stating that if elected Victoria would pass legislation to ensure that Victorian laws be modernised to allow Victorians in need to safely access the therapeutic benefits of the drug. That legislation, as was said, was passed in 2016, resulting in the safe introduction of cannabis into the health fabric of our state, improving the lives of so many. This reform has meant that no Victorian needs to face the difficult choice of breaking the law or watching their loved ones suffer. It was a reform that was aimed squarely at helping and healing those who needed it. We started here in Victoria and the rest of the nation followed us. At the time I recall that it was bold, expert informed and pretty nation leading. This government took some really delicate, staged and carefully considered approaches to this important reform to ensure that it achieved its desired outcomes and provided Victorians a pathway to ensure the safe use of cannabis for its therapeutic benefits. I know that any changes, including to road use, will require appropriate clinical oversight, including from specialist general practitioners, nurses and pharmacists.

I was interested to see also that the Victorian Law Reform Commission provided over 40 recommendations to the government, including the need to establish an independent medical advisory committee on medicinal cannabis to provide advice about expanding eligibility for future patient groups. I think that is good to see. There is an acknowledgement that today medicinal cannabis is most often prescribed for the treatment of chronic pain, but it has also been used to treat anxiety; cancer-related symptoms, such as pain, nausea and reduced appetite; epilepsy; insomnia; and MS.

Upon reading about medicinal cannabis and driving I was really interested to see that there are additional challenges for drivers on our roads. We have what continues to be an incomplete understanding of the effects of medicinal cannabis on our roads. In this state medicinal cannabis has been prescribed to almost 400,000 Victorians. I thought that was quite an extraordinary statistic – one that was not known to me. That is why I think our upcoming trial is a really important bit of work, and that will help us increase our understanding of those effects while confining any potential road safety risks to a controlled environment. It is worth noting, though, that when I said 400,000, that is not say that every one of those is a driver.

The results of the trial that I talked about are vital to informing government decision-making on the matter of medicinal cannabis and driving. We are working with Swinburne and Monash universities on multiple research projects to gain a better understanding of the conditions of medical cannabis and driving issues. Pre-empting this work really does, I think, do us a disservice, but I know that we remain absolutely committed to exploring options for addressing this issue and that keeping an open mind to different strategies can yield some really game-changing results while not compromising the safety of Victorians on our roads and streets. It really is a challenging public health issue. We are completely committed to completing the medical cannabis track trial, as it is known, to ensure that any policymaking will not compromise the safety of any Victorian, and we are dedicated to finding a solution to the problems set out around driving while impaired. The medicinal cannabis track trial will inform our policy position on this issue, only after gaps in the evidence are addressed through the trial and with our research partners. I look forward to continuing to follow this work.

David LIMBRICK (South-Eastern Metropolitan) (11:49): I also rise to speak on notice of motion 437, brought forward by Mr Ettershank, regarding drug testing for medical cannabis patients. I would like to take a step back and think about what the point of testing for drugs on the road is. Of course, it is around impairment. No-one wants impaired people driving on the roads, including me, because they are a danger to themselves, to other people and to their passengers. However, we have a situation from long ago with alcohol testing, where there is an excellent, established scientific relationship between the level of alcohol in your blood and your impairment. So we have come to a well-accepted principle that if you are over .05, then you are impaired and therefore you will lose your licence and suffer some penalty.

We have the unfortunate situation with cannabis, which has this different way of metabolising, where it remains in your system for a much longer period than alcohol does and therefore you can test positive for THC, which is an active component in cannabis, long after you are impaired. This has created a great injustice. I first raised this injustice back in 2019, and, frankly, the government has been far too slow to act on this. I would like to touch on some of the serious harms that have been caused by this injustice. One of those harms that has already been spoken about is people who are not impaired losing their licence, but I think that there are far greater harms caused by this injustice. This injustice is acknowledged in the law itself by the very existence of two offences: one offence is drug driving; the other offence is drug driving whilst impaired. As is pointed out, ‘drug driving while impaired’ is seldom used, frankly, because it is a bit too much paperwork for the police. That is why they do not do it. And it is much easier to ping someone for drug driving by just testing for the existence of THC in their blood, and therefore they lose their licence. The offence of drug driving without impairment should not be an offence, in my view.

I would like to touch on some of these other harms. I have personally spoken to dozens of people who suffer medical conditions such as some of the ones outlined here – pain, anxiety, insomnia et cetera; many illnesses. These people – most of them actually are older people – are interested in trying medical cannabis, because they are currently using drugs such as opiates, benzodiazepines and other far more serious and far more harmful drugs. They choose to continue taking those drugs because they do not want to risk losing their licence. Especially for people that live in regional areas, losing your licence is catastrophic – especially for an older person – absolutely catastrophic. They will not risk losing their licence, so they do not use medical cannabis, even though it has a far less harmful safety profile than these other drugs and there is no chance of overdose and these other things. People are not using cannabis, which has far less harmful effects than opiates or benzodiazepines.

Another very, very serious harm which concerns me greatly is the way that police target music festivals, and everyone going to these music festivals knows that the police will be waiting outside and drug testing. When people may have been inclined to go along to the music festival and maybe just smoke some cannabis, which does not do a great amount of harm, they do not do that, because they know that the next day, when they are not impaired, they will get pinged by the police on the way out. So they substitute and use other far more dangerous drugs, simply because they metabolise through their body in a faster time – drugs like cocaine et cetera. I think that this is a travesty. We do not know how much serious harm this has caused, but every time I hear of someone overdosing at a music festival I wonder whether maybe, if they had smoked some cannabis instead, they would still be alive or they would not be hurt. I think that what the police do with this sort of drug testing is wrong – they should be testing for impairment. They say that the technology does not exist to test for impairment, but as was pointed out by Mr Ettershank, they have the very old-fashioned, old-school test, the field sobriety test. It takes time and paperwork to do that, and as was pointed out earlier, it is harder to get a conviction. Well, so what? The onus of proof is on the police. If someone is impaired, they must prove that impairment, and simply having something in their system does not prove impairment.

Before I run out of time I might point out another thing that points to this injustice: the company that makes these THC testing kits also makes kits that will simultaneously test for benzodiazepine and opiates, and the government and the police do not want to use these kits, even though they are similar in price, because there would be widespread outrage at the number of people that would be picked up and busted by these test kits. That is why they choose not to test for benzodiazepine and opiates; they test for cannabis. There has been a lot of talk about medical cannabis, and I agree with that, but similarly if someone is using it recreationally, whether it is illegal or not, they should not be busted for impairment. This is just an extra injustice and stigmatisation and effect of prohibition. People should not be getting busted for having THC in their system if they are not impaired. The very fact that we have two offences is proof that the government knows about this. They have chosen not to act. They have taken too long. It is time to act on this.

Sonja TERPSTRA (North-Eastern Metropolitan) (11:56): It is at this juncture, as we just approach question time, that you wish there could be some elevator music that could just carry us through into question time, because I feel that in the short amount of time that I have left – probably about 4 minutes now – there is not terribly much that I can say.

I have had the opportunity of listening to the debate, and I know there have been some discussions with Legalise Cannabis in terms of agreements being reached with some amendments to the motion. I understand the government is in a position now to provide support for the motion with the inclusion of those amendments. But just in the short amount of time that I have got left what I do want to say is that it is of significant concern, road safety. I actually agree with a lot of what Ms Crozier had to say on this motion: road safety is a concern. Some of the other concerns relate to how we actually have a test that adequately ascertains how much someone is impaired from having levels of THC in their system. I know the motion talks about having a legal defence for medicinal cannabis, and perhaps that might then go to some of the things that government is concerned about, particularly around how you determine whether someone has ingested THC through medicinal cannabis or through some other means and, for example, whether the script that they have is in fact legal and lawful or fake.

So there are some things that still need to be resolved in terms of this particular concern, but what we know is that we cannot compromise on road safety. One death on the road is one too many. I know as a vulnerable road user – I am a motorcyclist – I will not get a second chance if someone comes at me with a car. If you are in a car, you might have a second chance, but as a motorcyclist I have zero chances. So that is something that I am particularly concerned about, and I know my colleagues in the motorcycling fraternity will also share similar concerns. Road safety is of concern. We do not want to see any more road deaths on our roads, and our government continually works to ensure that we have appropriate levels of road safety. With that, I think I might conclude my remarks as we are just about to bump into question time.

Business interrupted pursuant to sessional orders.