By Paul Gregoire and Ugur Nedim
New South Wales government legislation that would establish a defence for medicinal cannabis drivers who test positive for driving with tetrahydrocannabinol, or THC, the psychoactive part of the drug, in their system, has been tabled in parliament, as despite it being a legally prescribed drug for a decade now, NSW drug driving laws have continued to make it a potential offence for users to drive.
NSW roads minister Jenny Aitchison tabled the Road Transport Legislation Amendment (Medical Cannabis and Driving Offences) Bill 2026 (MCDO Bill) on 25 June 2026. The laws are a direct response to a recommendation made by the 2024 NSW Drug Summit report, along with years of private members bills and civil society campaigning that has sought to establish a cannabis driving defence.
The proposed legislative framework would provide more than 300,000 NSW prescribed cannabis users with a defence for driving with traces of the medicine in their system if they first go onto a prescribed user register held by Transport for NSW (TfNSW). This would provide them with “two strikes” in terms of being detected driving with a level above a new maximum concentration of THC.
The maximum concentration that a laboratory would test for following a registered cannabis user testing positive for cannabis driving during a roadside operation is to be defined under NSW road transport laws as 50 nanograms per millilitre in oral fluid or 3.5 nanograms per millilitre of blood. And a conviction under the proposed new offence would take place after a third detection in 2 years.
NSW drug driving laws are not the same as drink driving laws, as they merely ascertain whether there is any presence of four select drugs in a driver’s system, while random breath testing for alcohol tests for concentration. Therefore, testing positive for THC doesn’t necessarily mean impairment, and hence, the need for a defence for those drivers who are using cannabis medicines.
THC is one of the four drugs NSW police has been roadside testing for since the regime commenced in 2007. And following medicinal cannabis having become a legally prescribed drug, an anomaly has existed as those prescribed other psychoactive medications, like opioids and benzodiazepines, aren’t tested in respect of traces of their legal medicine in their system or penalised in that regard.
The guts of the defence reforms
“The bill amends section 111 of the Act to provide that a registered medical cannabis user who is detected with THC present is exempt from the existing drug presence offence, and to insert the new offence for registered users that have THC present above the maximum concentration,” Aitchison explained during her second reading speech on the bill on Thursday last week.
“As outlined, both the exemption and the new offence only apply if the driver meets conditions and provided they are not driving in certain defined circumstances,” the minister added.
Subsection 111(1) of the Road Transport Act 2013 (NSW) (the RTA) 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.
First time offenders against subsection 111(1) of the RTA now face an on-the-spot fine of $704 and an instant 3-month licence disqualification, while second or subsequent time offenders within a 5-year period, face penalties of up to a $3,300 fine, as well as disqualification, which the court can set for an unlimited period as a maximum but must involve at least a minimum 6-month suspension.
The MCDO Bill revokes current subsection 111(1) and replaces it with three new subsections. The legislation inserts a new subsection 111(1), which sets out the current offence more simply and continues to include that if a person decides to challenge a first-time drug driving offence in court, the maximum penalty is a fine of up to $2,200.
The bill then inserts subsection 111(1A) into the RTA, which provides that a “registered medicinal cannabis user” doesn’t commit an offence if THC is detected, and no other prescribed illicit drug or alcohol is detected, and they are not a novice driver or a special category driver or a special category supervisor or a driver supervising another under the laws of the Driving Instructors Act 1992 (NSW).
Further stipulations that apply to registered medicinal cannabis users, under subsection 111(1A), when found driving with cannabis in their system but not having committed an offence, involve that their licence is not already suspended or expired, that they’re not already disqualified from driving, and that they’re not subject to a driving ban under certain stipulated RTA sections or any others.
The stipulated sections that might trigger a driving offence are section 148EA of the RTA, which provides for a 48 hour ban due to a clause 14 schedule 3 of the RTA arrest of a civilian who refuses to undertake a sobriety test when appearing under the influence, or a subsection 148G(2)(a) of the RTA 24 hour driving ban, due to refusing a drug test or for testing positive for more than one drug.
Proposed subsection 111(1B) of the RTA contains the new “registered medicinal cannabis user offence”, which applies when the THC detected in a registered driver’s system is “at or above the maximum concentration” that is permissible, and all the other stipulations relating to subsection 111(1A) of the RTA are met. The maximum penalty for this new offence is a $2,200 fine.
Further new subsections contain reforms. Subsection 111(7) of the RTA stipulates that any amount over 0 grams of alcohol in 210 litres of breath triggers the alcohol clause. Subsection 111(8) outlines that a subsection 111(1B) offence isn’t a first-time subsection 111(1) offence. And subsection 111(9) explains that driving includes an attempt to turn on a vehicle or teaching a learner driver.
Then new section 111AA of the RTA contains the defence. It requires that a registered medicinal cannabis user who tests positive must be warned and not charged with a subsection 111(1B) offence if they’ve had fewer than two positive detections in the last 2 years and have never been convicted of the offence before. In these cases, TfNSW must issue the driver with a warning and record this.
Registration and other amendments
The MCDO Bill further inserts chapter 5 part 5.1 division 3 into the RTA. These laws provide that unrestricted NSW driver licence holders may apply to be listed as a registered medicinal cannabis user with TfNSW. Such applications must include proof that the driver has a cannabis medicine prescription and evidence that they have completed an education program on cannabis and driving.
If they are not refused, a driver is registered for up to 2 months after their valid prescription expires, and their name is listed on the register, and this listing is detailed on their electronic driver licence. TfNSW has 28 days to complete an application. To extend registration after expiry, a user must provide a new prescription to TfNSW, and the agency may cancel registrations it finds dubious.
New section 204A of the RTA stipulates that a person convicted of a registered medicinal cannabis user offence has their driver licence automatically disqualified for 6 months, although a court can reduce this to 3 months.
Additional amendments to schedule 3 of the RTA provide that if a registered medicinal cannabis user has been detained after failing a roadside drug test in terms of THC, they may then be required to undergo a random breath test for alcohol.
A further change to section 111 of the RTA, involves the subsection 111(3) offence of driving with the presence of morphine in a person’s blood or urine, so that it is simplified in a similar manner to which the subsection 111(1) drug driving offence is to be amended. Driving with morphine present in one’s system garners the same penalties as drug driving, but it doesn’t involve an on-the-spot fine.
And all these new laws must be reviewed by the minister after 12 months of operation, according to proposed new section 279C of the RTA.
NSW police to access the cannabis drivers register
Long-term advocates for a drug driving defence all welcome having gotten to the point that the NSW government has placed draft laws on the table that would serve to give people who might have been using a legally prescribed medical treatment for up to a decade now, with a lawful defence to hold up against why they might have traces of cannabis medicine in their system when driving.
However, campaigners for the driving defence, such as NSW Greens MLC Cate Faehrmann, have questioned the practicalities of handing NSW police a list of all registered medical cannabis drivers, when despite its legality, this medicine continues to be treated with suspicion, and especially as officers of the law might misuse such information to their advantage to notch up extra convictions.
