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Speech: Statutes Amendment (Medicinal Cannabis Defence) Bill

The Hon. T.A. FRANKS (17:13): I rise behalf of the Greens to support this bill, a One Nation bill that is in fact very similar to legislation the Greens have previously introduced into this place and clearly an issue of ongoing of concern for our community.

This bill, the Statutes Amendment (Medicinal Cannabis Defence) Bill 2023, is a result of our current system of laws. In 2016, the federal government legalised access to medicinal cannabis after a campaign spearheaded in many ways by Lucy Haslam, a retired nurse who gained attention when her then 20-year-old son Dan was diagnosed with bowel cancer in 2010.

Medicinal cannabis provided relief to Dan, whose chemotherapy killed his appetite, gave him nausea and mouth ulcers, and made him vomit. Dan's father, Lou, who had actually worked as an undercover cop for the New South Wales Drug Squad from 1972 to 2006, told of how things got so bad for Dan that he would vomit at the mere thought of the chemotherapy. Mr Haslam tells of a life-changing moment when a family friend who had colon cancer offered Dan some cannabis to try after all else had failed.

His son's ulcers disappeared, his appetite returned, and his nausea decreased. Mr Haslam said, 'He'd tried every bloody pharmaceutical drug. They did nothing. This was really working.' Dan was not alone in this struggle, of course. In Australia, the average medicinal cannabis patient is 49 years old. That is not somebody who is undertaking this lightly. The most likely reason they are taking this medication is for pain, anxiety or multiple sclerosis. Indeed, 60 per cent of the legal products that are available are oil-based and have some THC within them.

That THC, if present, is metabolised at a very slow rate, yet the some 35,000 active legal medicinal cannabis patients in our nation, some 70 per cent of whom are taking a medication with THC in some form, are not currently able to legally drive in mainland Australia and will fall foul of our drug-driving detection systems—and our drug-driving detection systems are, indeed, more profound and present than ever before. In the last few years the approximate number of roadside drug tests undertaken annually in South Australia was around 49,000.

Drugs like morphine are exceedingly more dangerous than medicinal cannabis, both on and off the road. Research shows that morphine causes a delay in reflex responses for up to 36 hours. If the government can provide a medical defence to those who legitimately use morphine to combat their pain, surely there is no justification for not providing that same defence to the growing thousands of South Australians who legally use medicinal cannabis.

Dr Karen Hitchcock, who works as a GP specialising in medicinal cannabis, said Australia's current drug laws were pushing patients towards other prescription drugs. She is quoted as saying:

Many patients choose to stay on their more dangerous and more addictive medications because of the driving laws. Others take a risk, as the relief and increasing quality of life now that they are sleeping soundly are worth the risk of losing their licence…It is time we stopped mistaking innocent citizens for criminals.

So we have had the legalisation of medicinal cannabis since 2016 with Dan's Law, the law that passed federal parliament, but now our drug-driving laws have a long way to play catch-up.

For many South Australians medicinal cannabis has actually given them back their lives. They have been given back the ability to function, the ability to move, the ability to comfortably go about their life's basic activities—something that many of us take for granted. Around the country we are seeing medicinal cannabis laws progress, allowing better access and protections for patients but, again, we still have a very long way to go.

Tasmania is the only state currently that provides a medical defence for those driving with the presence of THC in their bodily fluids, and that is by a simple accident of history not by a deliberate reform to their drug laws. Recently, however, in the Victorian upper house, the Legalise Cannabis Party have introduced similar legislation to that which we debate here today, including their Road Safety Act, to include it so that it would no longer be an offence for otherwise unimpaired drivers to have detectable THC in their blood or oral fluid.

Even the Victorian Premier, Daniel Andrews, has now given a strong indication that that state's strict rules around drug driving after using medicinal cannabis may soon be overhauled. On that, I commend the extensive work of the previous MLC and leader of the Reason Party, Fiona Patten.

Our current drug-driving laws have failed to improve road safety when it comes to this matter and they unfairly discriminate against so many thousands of South Australians by imposing a grossly disproportionate punishment regime against individuals—patients—and impede broader public health outcomes for the growing number of South Australians who are simply seeking an alternative to often far more impairing and certainly more addictive pharmaceutical medicines.

Over the 2020-2021 year, SAPOL says that it conducted 33,790 roadside drug tests, with 5,317 returning a positive result. Approximately 6 per cent of these positive test results were for cannabis. Hundreds of individuals have been penalised for the mere presence of that drug in their system, despite a lack of evidence that they were ever impaired. This is an injustice, and it is the reason why legislative reform is so necessary.

This bill does provide for a complete defence against the charge of driving with a detectable presence of THC in oral fluid or blood where a person has a valid doctor's prescription for a medicinal cannabis product containing THC and that that product has been administered as directed. This bill also makes the defence available for persons participating in medicinal cannabis clinical trials, removing a major hurdle for the advancement of science and research in this area. The defence is not available in any circumstance involving dangerous or reckless driving or in any matter where the police can establish impairment.

Dr Michael White, behavioural scientist with a PhD in psychology from the University of Adelaide—and I strongly recommend anyone interested in the issues around medicinal cannabis to look at his research—is a strong advocate for equal drug-driving laws and he has said:

Australia's cannabis-presence driving offences have no legitimate scientific justification. The introduction of the offences, with their associated penalties, is one way that the counterproductive War on Drugs is currently prosecuted. This enforcement regime is particularly cruel for medical users of cannabis.

Jurisdictions with similarly controlled prescription-only pathways for medicinal cannabis include the UK, New Zealand, Germany, Norway and Ireland, where they all have a medical defence for drivers. For the benefit of South Australians, it is time we did the same.

I commend to the council the work of an organisation called Drive Change, which raises the awareness of the need for drug-driving law reform for fair and equal treatment that contributes positively to our health system and to the lives of those patients I mentioned before.

Medicinal cannabis is currently potentially perfectly legal. It is the only prescribed medication without a legal defence against roadside mouth swab tests for presence. Indeed, those tests only test for presence. The technology we use is a blunt instrument. The technology we use could indeed be something quite different. There is the ability to test for level and not just presence when it comes to THC, so this is also a choice that has been made within our policing.

The need for reform is urgent. We need to give people prescribed medicinal cannabis the assurance that they will not be treated as criminals simply for taking a legal prescription medicine under the care of their medical practitioner.

I will alert members to the fact that our very own advertising with regard to drug-driving testing in this state boasts of the furphy, the lie, the mistruth. 'If you do drugs, you will be penalised long after the high has gone,' say the signs on the bus and the ads on the billboards. They actually boast about the fact that this drug will be present in someone's bodily fluids well after the impact of the drug has caused any impairment whatsoever. It is extraordinary that for some days, weeks or sometimes even as long as a month the THC may remain in somebody's system and they may well become a criminal simply for being a patient taking a legally lawfully prescribed medication.

It is extraordinary that in this state and in this country we continue to criminalise patients and treat them as criminals, much as Dan was well before Dan's Law passed. As I noted at the beginning of this speech, it has forced middle Australia—like Dan's father, a former undercover drug cop—to actually go to the black market, to actually become criminals themselves as carers for those patients. It is high time in this state that we got real about drugs and that we provide protections and defences for patients.

With that, I commend the Hon. Sarah Game for bringing this bill to us, and I ask her to have a word with her colleague Mark Latham MLC in New South Wales. When the Greens put this bill up there in that parliament, his comment was 'Pass the bong' as he voted against it. However, he is out of step with One Nation in this state of South Australia, he is out of step with his leadership in the federal parliament, and he is definitely out of step with the community of Australia.

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