Drivers who use medicinal cannabis in Victoria will be able to remain behind the wheel under a proposed interim measure being considered by the state government.
In an expert report tabled in parliament on Wednesday, the former magistrate Tony Parsons called on the government to provide the courts with judicial discretion not to cancel the licences of medicinal cannabis users.
He said the “interim proposal” would “act as a bridge” between the present legislation and the findings of a government-funded trial into the impact of medical cannabis on driving, which was not expected until 2026.
The $4.9m trial, which is being conducted by Swinburne University, will review about 70 medicinal cannabis users’ ability to manage distractions and assess their performance behind the wheel, including steering, braking and speed control on a dedicated track.
But in the interim, it continues to be an offence for a person to drive with any trace of tetrahydrocannabinol (THC) – the psychoactive component of cannabis – in their system.
It means medicinal cannabis users can risk losing their licence or being fined each time they drive to work or drop their children off at school.
Parsons, the former head of the magistrates drug court division, described the legal framework as “grossly discriminatory and manifestly unfair”.
“Victorians with a valid doctor’s prescription for medicinal cannabis, who take that medication as instructed, are sanctioned for taking their medicine if they return a positive roadside test, even in the absence of any evidence of impairment,” he wrote in the report, commissioned by the Legalise Cannabis MP David Ettershank.
“They have committed a criminal offence by virtue of the drug’s presence in their system alone.”
Parsons said the consequences could be “crushing”.
“Loss of a drivers licence often results in loss of livelihood and always means financial penalties, a life-time criminal record, barriers to future employment and the stigma of appearing in court,” he said.
He said there were “hundreds of other prescription drugs that have the same or greater capacity to impair driving performance” such as benzodiazepines, opiates, antihistamines and antidepressants that are not treated the same way.
Parsons said several of the experts he consulted said they were aware of patients who had refused to take their prescribed cannabis because of the risks involved.
“Often they changed to other medications such as opiates or benzodiazepines, both of which have greater potential to impair driving as well as the potential for drug dependency but neither will trigger a prosecution just because they are present in the motorist’s body,” he wrote.
Under the interim measure, courts would have the discretion to consider “on a case by case basis” whether there was any evidence that the person’s driving was impaired, whether they were taking the medicinal cannabis as prescribed and whether they had a history of unacceptable driving or other behaviour.
Presenting a positive test for THC while driving would remain an offence and other penalties, such as fines, would remain.
Parsons said he consulted with several government, legal and medical authorities, who all supported the discretionary approach. This included the Police Association head, Wayne Gatt, though the Victoria police commissioner, Shane Patton, declined to participate.
A government spokesperson thanked Parsons and the Legalise Cannabis party for its advocacy.
“We’re working with researchers from Swinburne University to see whether people can drive with any level of medicinal cannabis without compromising road safety,” they said.
