Medicinal cannabis has been lawfully prescribed in Australia since 2016. However, for the whole decade since, NSW patients with a valid script have nonetheless not legally been permitted to drive. This forces patients into a problematic fork: take the medicine your doctor prescribed without driving, or break the law.
On 17 September 2026, Parliament finally addressed that. The Road Transport Legislation Amendment (Medical Cannabis and Driving Offences) Bill 2026 passed both Houses, making NSW the first state in the country to replace automatic drug driving penalties for prescribed THC with a conditional registration scheme.
The Government describes the Act as common-sense legislation that effectively addresses a long-standing issue. Given the rise of medicinal cannabis usage, the statute comes at a necessary time, though more conservative critics of drugs claim it goes in the wrong direction.
An essential distinction to note is that the Act is still awaiting assent and will commence by proclamation. Transport for NSW expects the registration system and education program to be operating in late 2026 or early 2027. Until that day arrives, nothing has changed on the road.
The Current Law on Cannabis Drug Driving
Section 111 of the Road Transport Act 2013 (NSW) creates what is known as a presence offence. It is unlawful to drive with a prescribed illicit drug present in your oral fluid, blood or urine, and THC is one of four substances NSW Police screen for at the roadside.
If presence is found, the offence will be made out – that is all that is needed. The prosecution does not need to prove impairment, erratic driving, or any particular quantity beyond detectable. A trace sufficient to trigger a positive test is sufficient to establish liability, even where the last dose was days earlier and the driver is demonstrably unaffected.
The liability here is absolute. The recent case of R v Narouz [2024] NSWCCA 14 has confirmed that there is no mental element in the offence of drug driving, meaning that only the physical act is needed to convict someone. The defence of an honest and reasonable mistake of fact is not available for an absolute liability offence.
An anomaly exists in subsection 111(5), which provides a medical defence for drivers with other prescribed drugs in their system. A patient lawfully prescribed morphine has been able to rely on it. A patient lawfully prescribed cannabis cannot. Two people, both following medical advice, treated in completely different ways in the eyes of the law.
The practical consequences of the law have been severe. A first detection has carried an immediate three-month licence loss, which for many people means the loss of employment as well. Former judge David Heilpern, who dealt with these matters from the bench and has campaigned on the issue since leaving it, puts the number of prescribed cannabis users in this state at over than 300,000. Stephen Lawrence MLC, who sat on the parliamentary inquiry, noted during debate that around a million prescriptions have now been written for medicinal cannabis products nationally.
Currently the penalty for a section 111 offence of driving with presence of prescribed illicit drug in person’s oral fluid, blood or urine is a penalty of $2,200 fine and a minimum 3 months to a maximum of 6 months driver licence disqualification period for a first offence. For a second or subsequent offence, the penalty rises to $3,300 fine and an automatic 12 month disqualification period or minimum 6 months at the court’s discretion. While these penalties apply if the matter proceeds with a court attendance notice, police may instead issue an on-the-spot fine of $704 attracting an automatic 3-month licence suspension period by Transport for NSW.
In the event the matter is heard in court- most people faced with this offence typically ask the court not to impose a conviction pursuant to a section 10 order. This outcome then results in no licence disqualification period.
The New Cannabis Driving Laws in NSW
Roads Minister Jenny Aitchison introduced the Bill on 25 June 2026. It responds directly to a recommendation of the 2024 NSW Drug Summit, which the Government initially declined to adopt before reversing its position.
The reform does not now completely remove governmental oversight from medical cannabis. Crucially, patients must register with Transport for NSW, provide evidence of a valid prescription from a registered medical practitioner or authorised nurse practitioner, and complete a mandatory online program covering cannabis and driving.
Registration is voluntary, but it is the only route into the new protections. Status will be recorded on the driver’s licence record and the digital driver licence.
Further, the reform has added threshold requirements to THC readings. A registered patient who returns a positive roadside test has the sample sent for laboratory analysis. If THC comes back below 50 nanograms per millilitre in oral fluid, or 3.5 nanograms per millilitre in blood, no further action follows. This is the heart of the reform: for the first time, a quantity matters, since before, mere presence was a criminal offence.
While aspects of these reforms are certainly less punitive, penalties for offending still exist, and have been reworked. Above the threshold, a first and second detection within any two-year period attract warning letters, giving the patient a chance to adjust dosing and driving habits. A third detection within the same window brings a $722 fine and a minimum three-month licence suspension.
The scheme is open only to NSW licence holders on an unrestricted licence, excludes certain licence types and circumstances, and applies only to drug presence offences occurring on NSW roads. The whole system is scheduled for review after its first year of operation. The reform may be the beginning of broader drug driving laws, but as it stands, the legislation is still narrow.
What The Reform Does Not Do
Registration is not immunity, and patients who treat it that way will come unstuck. Roadside drug testing continues exactly as before. Registered patients are tested like every other driver, and a positive roadside result still triggers a 24-hour driving prohibition while the sample goes to the laboratory.
If any other illicit drug or alcohol is present alongside the THC, the existing offences and penalties apply in the ordinary way and the new framework offers nothing at all. Driving while impaired remains a serious offence irrespective of prescription, registration or laboratory reading, and police retain every power they presently hold to remove dangerous drivers from the road.
Criticism has come from both directions, which usually indicates that a reform has landed somewhere near the middle.
The NRMA opposed the Bill from the outset. Liberal MLC Rachel Merton told the Legislative Council on 6 August that measuring concentration cannot accurately measure impairment because it accounts for none of the individual variation in health, metabolism or sleep, and that impairment simply cannot be measured accurately by blood, breath or hair. The point makes sense, although it argues equally against the presence regime it would preserve.
From the patient side, the complaints concern the legislative scope. The 50 nanogram threshold is not derived from any settled science connecting that figure to impairment, so a compliant patient can still be penalised on a laboratory reading that establishes nothing about their driving. The three-strike structure means an unimpaired driver can still lose a licence. Further, a registration scheme necessarily creates a government list of people using a particular medication, which carries obvious privacy implications.
The question of how much government should intervene into drug usage is a tale as old as time and has no easy solution. As cannabis prescriptions become more prevalent in our contemporary society, the law will be bound to develop more.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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