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Medicinal Cannabis: Legal Implications including Driving

This article discusses the use of medicinal cannabis, the differences to recreational cannabis, the steps needed to get a prescription and rules involving its use in daily activities, including driving.


In 2016, the Commonwealth passed amendments to the Narcotics Drugs Act 1967 with the aim of providing a legal pathway for legally grown cannabis, while still meeting the obligations under the Single Convention on Narcotic Drugs. The amendments made to the legislation also meant that a national regulator was established to track cannabis products through from cultivation to supply. 

In August 2016, the NSW Government established a process which legalised the use and sale of cannabis for medicinal use via a prescription from a medical doctor.

The medical conditions that can be treated with cannabis include anxiety, chronic pain, depression, PTSD, migraine, arthritis, Crohns Disease, chronic illness, epilepsy, palliative care and cancer pain.

What is Medicinal Cannabis?

Medicinal cannabis is a medicine that comes from the cannabis plant and is prescribed by a medical doctor to help treat symptoms for a number of medical conditions.  It has been legalised for the purposes of medical treatment by the Australian government since 2016 and its use is regulated by the Therapeutic Goods Administration (TGA).

How Is It Different From Recreational Cannabis?

Recreational cannabis is defined as any kind of cannabis that you obtain without a doctor’s prescription.  Possession of recreational cannabis is still an offence under section 10 of the NSW Drug Misuse and Trafficking Act 1985 (NSW).  To prove possession, the prosecution must show beyond reasonable doubt that:

  • An illegal drug was in a person’s custody or control; and
  • The person knew they had custody or control of a prohibited drug.

To read more about laws in NSW surrounding recreational cannabis, you can read our dedicated article Cannabis Charges, everything you need to know.

Decriminalisation of Cannabis vs Legalisation 

There have been ongoing discussions concerning cannabis being ‘decriminalised’ in parts of Australia. It is important to note that there are substantial differences between decriminalisation and legalisation.  If a substance is decriminalised, it is still not legal to use, sell or possess. The term decriminalised is often associated with a lack of criminal charges. For example in NSW, if you are caught in possession of a small amount of cannabis or cannabis plants, the police may use their discretion and give you a warning or caution.  This is known as the Cannabis Cautioning Scheme and applies with the following conditions;

The amount must be less than 15g of leaf and is for personal use.  The person admits possession, isn’t involved in other criminal charges at the time and has no previous criminal record relating to drugs, violence or sexual assault.  Finally, that the person has not received a caution more than twice. Indeed, it is most likely to apply if it is a first offence.

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How do I get Medicinal Cannabis?

You will firstly speak with a doctor about your medical condition and whether medicinal cannabis could assist or relieve symptoms.  Typically the doctor is a neurologist, palliative care physician, psychiatrist, pain specialist, paediatrician or a GP who has undertaken special training.  The doctor assesses your medical condition and determines if medicinal cannabis would be beneficial and in what form and dose.  An approval from the TGA is then sought. If the patient is a child or drug dependent person an application to NSW Health also needs to be made.

Once approved, your doctor will write you a prescription which is filled at a pharmacy.  Medicinal Cannabis may be produced and used in various formulations, including oil, pills or sprays which are swallowed, cream which is applied topically and vaping.

It is worth keeping in mind that some doctors may be reluctant to prescribe medicinal cannabis for your condition.  Although medicinal cannabis is increasingly recognised as a safe and effective treatment in mainstream medicine, the long term effects are still being studied.

Using Medicinal Cannabis 

Medicinal cannabis is a highly regulated medication, the use of which has legal implications for daily activities.

Can I Use Medicinal Cannabis While Out In Public?

While there are no specific laws in NSW that prohibit you from consuming medicinal cannabis in public, the Therapeutic Goods Administration (TGA) explicitly states that, medicinal cannabis can be vaporised, but not smoked in public in accordance with the existing Smoke free Environment Act 2000 (NSW).  You should not use your e-cigarette or vape in smoke free zones, such as shopping centres, outdoor dining areas, restaurants, schools or places of worship.  The areas that are restricted are found in this NSW government document.

Individual places such as businesses, councils and other organisations may also have their own smoke-free policies that ban smoking while on their premises.

Finally, it is prudent to carry your medicinal cannabis in its original container and keep a copy of your prescription with you.

Can I Drive While Using Medicinal Cannabis?

This depends on the kind of medicinal cannabis that is prescribed to you and the guarantee from the manufacturer of the cannabis product. Medicinal cannabis contains substances known as cannabinoids, of which two are relevant here:

  • tetrahydrocannabinol (THC)
  • cannabidiol (CBD)

THC causes mood altering effects, including the feeling of being ‘high’, while CBD has no intoxicating effects. Cannabis was made illegal in the 1930’s in Australia due to the effects of THC.  

Medicinal cannabis can contain CBD with or without THC.  If you take medicinal cannabis that contains only CBD, you can legally drive as long as your ability is drive isn’t affected. 

If your medicinal cannabis contains THC however, it is illegal for you to drive under s 111 of the Road Transport Act 2013 (NSW). Mobile Drug Testing (MDT) in NSW can test for THC in your saliva and currently, there is no medical defence for using prescribed medicinal cannabis that contains THC.

Keep in mind that even if you don’t feel impaired, THC can reportedly be detected in your body for up to 12 hours after using cannabis. If you frequently use it, this can extend up to 30 hours and in some cases, a month after using. Therefore, it is important to consider alternate means of getting around if your medicinal cannabis contains THC.

Another consideration involves the guarantee that can be made by the manufacturer of the cannabis product that the product used does not contain THC.  In general, this may be guaranteed by pharmaceutical agencies that tend to produce oil for oral consumption.

Can I Travel in Australia or Overseas With Medicinal Cannabis?

For domestic travel in Australia, contact your destination’s health department ahead of time to see if there are any specific rules you need to follow when bringing in medicinal cannabis products. The TGA has a list of state health department contacts that you can find in this link.

For overseas travel, you should confirm ahead of time that it is legal to bring into your destination country. Be mindful that in some countries, carrying cannabis with you, even if it is legal for medicinal purposes in Australia, can result in heavy penalties including imprisonment.

Finally, remember to always carry your medicinal cannabis in its original container and bring along a copy of your prescription when you travel.

Medicinal Cannabis Compassionate Use Scheme

If you are suffering with a terminal illness, you may be eligible to apply for the Medicinal Cannabis Compassionate Use Scheme.  The scheme provides guidelines to NSW police regarding not charging adults with a terminal illness with possessing cannabis without a lawful prescription. It also applies to up to three of the person’s registered carers.  The scheme does not supply medicinal cannabis nor does it endorse the use of cannabis without a lawful prescription. Moreover, the Scheme cannot be used if you

  • Possess cannabis that is not lawfully prescribed beyond the Scheme’s allowed limits.
  • Use cannabis that is not lawfully prescribed in public.
  • Supply cannabis or cannabis products that is not lawfully prescribed to people outside the Scheme.
  • Drive while using cannabis.
  • Cultivate cannabis.

To find out more and register for the Scheme, visit Service NSW’s dedicated page here.

Why BSM Lawyers?

Our criminal lawyers are up to date with the most current legislation regarding medicinal cannabis and are happy to provide legal advice and assistance.  Our lawyers are highly experienced in all drug matters and will vigorously advocate for you in negotiations with the police and in court.  Our criminal lawyers regularly appear in court and achieve excellent results.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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