
Cannabis was decriminalized for medical use in Australia all the way back in 2018. Despite the fact it has been around for six years, a lot of confusion still exists on the side of employers and workers, police and drivers.
DRUG DRIVING
Can I drive with cannabis in my system?
NO! This is illegal under the following legislation:
NSW: Road Transport Act 2013 (NSW) s 111 (Blood/urine/oral fluid)
Vic: Road Safety Act 1986 (Vic) s 49 (Blood or oral fluid)
Qld: Transport Operations (Road Use Management) Act 1995 (Qld) s 79 (Oral fluid). This is often cited by police as "Section 79 of the TORUM"
WA: Road Traffic Act 1974 (WA) s 64AC (Oral fluid or blood)
SA: Road Traffic Act 1961 (SA) s 47BA (Oral fluid or blood)
Tas: Road Safety (Alcohol and Drugs) Act 1970 (Tas) s 6A (Oral fluid or blood)
ACT: Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 (Oral fluid or blood)
NT: Traffic Act 1987 (NT) s 29AAA (Oral fluid or blood)
With the exception of NSW, the only matrices the law permits the testing of are your oral fluid and/or blood. This is reasonable when looking for recent use of cannabis, as blood is effective for drug testing for about 8 hours and oral fluid for 6 - 12 hours (depending on how much cannabis was used).
Who tests my urine?
While NSW can test urine, this is very rare and is usually only done in a hospital if they do not have a trained person for blood testing. Urine is an unfair test for drug-driving prosecutions as there is no way to indicate impairment. It is so unreliable that it is currently illegal to fire an employee for failing a urine test.
Who tests my blood?
Only a registered nurse, medical practitioner, or authorised pathology collector/phlebotomist should be used to collect blood. Police officers are not authorised to collect blood and will not be taking your blood.
Your blood will also be taken if you attend a public hospital following a motor vehicle accident.
Who tests my saliva?
In NSW, the roadside drug testing course is mandatory for all constables, hence the recent campaign "All police cars are an RDT". Any constable trained to do roadside testing may conduct this testing.
The screening devices used (usually a SureTech DrugWipe) have similar cutoffs to workplace testing devices, meaning if you fail roadside, you would have failed at work.
Does prescription cannabis help mitigate my penalty?
Not really. A magistrate may, at their discretion, show leniency if your drugs were prescribed, but they may also aggravate your penalty as the label on the box and the warning issued by the medical practitioner would have been "Do not drive after using this for at least 12 or 24 hours". Each magistrate has their own personal opinions about drugs.
Other lawfully prescribed drugs are illegal to drive with in your system, like opioids (prohibited by the same section cannabis is) and sleeping tablets (Benzodiazepines) or any other drug that impairs you, and the penalties are serious. For example, in R v Liddicoat, the offender was driving with a cocktail of sleeping tablets and drug addict supplements like buprenorphine when she had an accident. She received 5 years imprisonment.
WORKPLACE
Can I attend work with cannabis in my system?
This is up to your employer. Your employer must balance their reputation, commitment to health and safety, and your health to ensure one is not illegally affected.
In general, if your employer is doing urine tests and intends to dismiss you for failing, this would be unlawful. But if they are doing oral fluid testing - this will probably be legal.
The issue, of course, becomes the health and safety of the workforce. Obviously, using any drug like oxycodone, cannabis, morphine, etc., at work, which can impair your cognitive abilities, should be removed from high-risk work. However, for low-risk work like an office job, provided the drug use does not affect your productivity, the use of cannabis is likely lawful and protected by Fair Work Legislation.
If you fail to disclose the drug use to your employer, then fail a drug test or have an accident - there are no real protections for you, and you may even face prosecution under section 28/33 of your local WHS Act.
Can I keep my drugs at work?
If they are lawfully prescribed, you can generally keep your medication at work. There may be some exceptions, like if you work at a hospital, in a prison, or rehabilitation centre, but it is up to the employer to make a suitable alternative available (i.e., a drug safe or strong box that you can access).
If you have any questions about drug testing, please contact 1300 183 984 or email info@whs.org.au