NSW Legislates Medicinal Cannabis Driving Defence, as Queensland Implements Zero Tolerance

In terms of drug driving laws, the New South Wales government is now centre stage due to its proposed and enlightened reforms that seek to ensure users of legal medicinal cannabis aren’t disqualified from driving for simply taking their medicine, whilst its counterpart in Queensland is currently pulling out all the stops to punish its constituents whose medicine doesn’t suit its ideology.

The proposed NSW medicinal cannabis drug driving defence has made its way through the lower house of parliament and NSW Labor should be congratulated on the move.

Yet, it doesn’t appear so progressive, when considering its being rolled out 10 years after the medicine was legalised, whilst the Liberal Nationals in Queensland are set to punish the largest cohort of medicinal cannabis users in the country.

The truth of Australian drug driving laws is they’re illegitimate, as unlike drink driving laws that serve to punish people due to the level of alcohol in their blood and hence, target impaired driving, drug driving laws merely identify any presence of certain substances in a driver’s saliva and they fail to ascertain whether those drivers are impaired but punish them regardless.

Despite medicinal cannabis having been legalised by the Turnbull government in 2016, state governments nationwide have long resisted providing drivers who use the medicine with a defence against a charge of drug driving, simply because of the prejudicial attitudes that surround the plant, which had been outlawed globally for close to a century under prohibition.

As former NSW magistrate David Heilpern recently pointed out, cannabis medicine users living on Bundjalung land in the NSW Northern Rivers region, close to the border with Queensland, might soon be in a position where it’s safe for them to drive from their home to go to work, but on arriving at their workplace north of the border, they might then be risking licence disqualification and fine.

Setting limits in NSW

Heilpern writes in his 13 August 2026 opinion piece in the Echo that the Minns government in NSW has “stared down the opposition”, in terms of proceeding with its medicinal cannabis drug driving defence bill, which he considers is the “most sensible, safe and progressive regime in the country”.

Tasmania has basically had a cannabis driving defence since legalisation took place, while Victoria last year enacted a partial medical cannabis driving defence.

“Prescribed patients must register, and do a course,” Heilpern, the current dean of law at Southern Cross University, explained in respect of the proposed NSW cannabis driving defence. “Then they can drive with up to 50 ng in their saliva, and if they exceed that level, the first times there will be no penalty.”

Introduced on 18 June, the Road Transport Legislation Amendment (Medical Cannabis and Driving Offences) Bill 2026 contains the long-time-coming medicinal cannabis driving defence laws.

As Heilpern has explained, the NSW medicinal cannabis driving defence system will involve the more than 300,000 prescribed users in this state having to register with Transport for NSW initially and undertake “an education program”.

Subsection 111(1) of the Road Transport Act 2013 (NSW) contains the offence of drug driving or driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine. This criminal offence relates to four prescribed illicit substances: THC, MDMA, amphetamines and cocaine. These are the same four drugs that trigger Queensland’s drug driving laws.

The NSW government is further introducing a system where registered users who test positive, then have their samples sent to a laboratory to test for the specific level of medicinal cannabis in their system, with the maximum permitted concentration being 50 nanograms per millilitre in oral fluid or 3.5 nanograms per millilitre of blood.

Medical cannabis users who breach the 50 nanogram cannabis driving limit twice will be cautioned, whilst a third detection within a 2 year period will result in a charge, and they will now face an on-the-spot fine of $704 and an instant 3-month licence disqualification, while second and subsequent time offenders within 5 years, then face penalties of up to $3,300 and longer disqualification.

Zero tolerance up north

The Queensland Crisafulli government announced a crackdown on dangerous driving in June, which includes zero tolerance towards drug driving. And the Liberal Nationals in the north are planning on linking drug driving to mandatory periods of prison under certain circumstances, despite the fact that underpinning these laws is a system that relies on the presence of drugs and not impairment.

Australian Medical Association Queensland president Erica Gannon told the ABC that her organisation supports laws that continue to penalise medicinal cannabis users, stating that doctors prescribe drugs all the time that require users not to drive. However, the understanding is that those using cannabis medicines are testing positive and being penalised for driving when not impaired.

Introduced on 26 June, the Transport and Other Legislation Amendment Bill 2026 seeks to streamline Queensland’s drug driving regime, via the introduction of an education program that those who break the law are required to undertake, and it further creates a combined drink and drug driving offence, along with tougher penalties that will apply to the offence of drug driving.

The basic drug driving offence, contained in subsection 79(2AA) of the Transport Operations (Road Use Management) Act 1995 (Qld), is set to have minimum penalties imposed that comprise of a fine of $1,295 and 2 months driver licence suspension, while the maximums that will apply involve fines of up to $4,835 and 4 months driver licence disqualification.

Also introduced on the same day as the transport legislation, the Criminal Code (Dangerous Driving) and Other Legislation Amendment Bill 2026 introduces a new dangerous driving legislative framework.

Dangerous driving will carry a maximum of 5 years imprisonment, but in circumstances of aggravation, this will jump to 7 years, whilst dangerous driving causing death or grievous bodily harm will carry 16 years or 25 years in circumstances of aggravation. And one of the circumstances of aggravation will be the mere presence of a prescribed drug in a person’s system.

The proposed new dangerous driving offences in Queensland will too require a court to impose a mandatory term of imprisonment if a driver has twice been convicted of drug, drink or dangerous driving crimes. So, Queensland drug driving offences that are triggered by the mere presence of a prescribed drug in a driver’s system will soon have the potential to contribute to gaol time.

Legislating dinosaurs

Heilpern welcomes the courageousness of the Minns government in progressing the reforms in NSW, and he considers the attitudes of the Crisafulli government in Queensland as evidence that the entire administration is suffering from ‘oppositional defiance disorder’.

The former magistrate also points to NSW Liberal MLC Rachel Merton’s comments in opposition to the NSW cannabis driving defence laws as an example of the sort of “1950s on steroids” attitude that continues to prevail in the nation’s centres of lawmaking.

“The NRMA has been opposed to the bill from the start. It claims that more people are now dying of drug driving than they are of drunk driving,” Merton told the chamber on 6 August 2026.

“Measuring blood concentration as proposed cannot measure the degree of impairment accurately because it does not cater to individual variances such as health, metabolism or sleep. We currently cannot accurately measure impairment, whether by blood, breathe or hair. That is what makes this a totally irresponsible measure.”

But the argument against permitting prescribed medicinal cannabis users to drive on the roads suddenly falls down when it’s considered that constituents who are now prescribed psychoactive substances for their conditions, such as opiates and benzodiazepines, can freely drive upon state roads with no fear of being caught in an impaired state as no one is testing for their medicine.

And as Australian academics Julia Quilter and Luke McNamara posit in their 2017 paper on the development of this country’s drug driving laws, these roadside drug driving regimes are currently being “used as a de facto mechanism for punishing individuals who are suspected of having committed the crime of possession and/or self‐administration of an illicit drug”.