‘Drug’ laws in Australia are guided by both state and federal legislation and can be complex and technical with many things to be considered. Added to the complex aspects surrounding these laws is the fact in some instances the onus of proof is reversed, requiring the defendant to prove their innocence. Taking a look at laws on Cannabis use in each state and territory, there is a zero tolerance for ‘drugs’ in a person’s system when driving and it is an offence to drive a vehicle in Australia under the influence of ‘drugs’. Most drivers would have undergone a breathalyser test and now, police can administer a random ‘drug’ test. All states and territories have laws making it an offence to operate a vehicle while on ‘drugs’. The testing regime is highly discriminatory, however, not testing for cocaine (NSW commenced cocaine testing in a trial in Sydney’s eastern suburbs from 1 July 2018) nor opioids or benzodiazepines, all complicit in fatalities on Australian roads behind alcohol (causative in at least 30% of road fatalities). If the testing regime was truly based on making our roads safer, police would be testing for cocaine, opioids, benzo’s and a whole raft of other toxic pharmaceuticals, not Cannabis, which stays in the adipose (fat) cells for the longest of all illicit substances, making Cannabis users easy targets.
The following laws apply for the relevant State or Territory (see as @ date in each section)
AUSTRALIAN CAPITAL TERRITORY (as @ January 2019)
Unlike alcohol, any trace of illicit drugs in your system is illegal. Random Roadside Drug Testing (RRDT) commenced in May 2011. These drug tests test for cannabis, methamphetamine (speed and ice) and MDMA (ecstasy). The testing only relates to the ‘presence’ of a drug in your system, there is no limit like drink driving. Drug testing can take place anywhere, anytime. RRDT is a three step process before being charged with an offence. The first two steps are undertaken roadside. First an oral test, followed immediately by a ‘preliminary oral fluid analysis’ using an instrument called a Drug Detection System. If unable to provide a saliva swab, a blood test may be used. A third ‘confirmative’ positive laboratory test is required before a driver is charged; this is conducted by the ACT Government Analytical Laboratory (ACTGAL). ‘Drug’ drivers will be required to appear before court, similar to those who ‘drink and drive’. A first offence can lead to a fine up to $1,500. For repeat offenders; a fine up to $3,750, three months imprisonment, or both can be imposed. An offending driver can also face loss of licence for a period specified by the court. For more information on alcohol and ‘drug’ impaired driving refer to the ACT Road Users Handbook.
NEW SOUTH WALES (as @ 20 May 2019)
Mobile Drug Testing (MDT) operates alongside Random Breath testing (RBT) for alcohol and police have the power to test drivers they believe may be under the influence of illegal or prescription ‘drugs’. MDT is increasing, with police conducting up to 200,000 roadside drug tests each year in NSW by the year 2020. MDT detects drivers who have recently used four common illegal ‘drugs’: Ecstasy, Cannabis, Cocaine and Methamphetamine (including speed and ice). MDT can be conducted at roadside operations along with RBT, or by NSW Police in vehicles patrolling our roads.
As with RBT, you will be stopped by police, asked for your licence, complete a breath test for alcohol and then be asked to wipe an MDT test stick down your tongue to check if you have illegal ‘drugs’ in your system. The results take a few minutes to appear and you must wait until police say you are clear. If your MDT test is positive, you’ll be taken to a roadside testing van or bus, or back to a police station to provide a saliva sample. This sample will be tested and if positive, you’ll be banned from driving for 24 hours. All samples are sent to a laboratory for analysis. If confirmed positive, tough penalties apply. If you are stopped for MDT or other reasons at the roadside, your behaviour or driving is erratic and police suspect you are under the influence of illegal or prescription drugs, they can also require you undergo blood and urine testing. If police arrest you to undergo blood and urine tests, you will receive a 48-hour driving prohibition, effective immediately. The tests cover a large range of legal and illegal substances that can impair drivers and can lead to a charge of driving under the influence (DUI), which has serious penalties. All drivers involved in fatal crashes undergo blood and urine testing for ‘drugs’ and alcohol.
Drug driving is a serious offence. It is also an offence if you refuse to take a drug test. Penalties can include loss of licence, fines and prison terms. As part of the Road Safety Plan 2021, changes came into effect on 20 May 2019 to simplify and improve certainty of penalties for first-time offences for driving with the presence of an illegal drug, which are typically detected through MDT. As of 20 May 2019, if your roadside positive result is confirmed by the laboratory and it is a first-time offence, you may receive a fine (currently $561) and your licence will subsequently be suspended for three months. If it is a second or subsequent offence you will need to go to court and may receive a licence disqualification and fine. If you are found guilty of driving under the influence, even higher penalties apply. More information about current penalties for drug-driving offences can be found on the Roads and Maritime Services website.
If charged with ‘drug’ driving it means you have been found or are suspected of driving with an illicit substance in your oral fluid, blood or urine. Pleading not guilty to a ‘drug’ driving charge means it is up to the prosecution to prove you were driving with ‘drugs’ in your system. If you are sure you were not, plead not guilty and defend the matter in court. The ‘drug’ tests used by police are notoriously unreliable and can show positive days after an alleged offender has taken ‘drugs’ and there are certain procedures police must undergo when testing a person. If you can show they have gone against procedure when obtaining evidence, you could have charges withdrawn. If you decide to plead guilty to a charge of ‘drug’ driving, the court has the discretion not to convict. ‘Section 10’ (s10) refers to section 10 of the Crimes (Sentencing Procedure) Act 1999 which allows a court that finds you guilty of an offence to discharge you without recording a conviction and because there is no conviction, there is no criminal record. ‘Drug’ driving is a criminal offence and ordinarily comes with a criminal conviction.
The New South Wales Police Farce misinforms people about Cannabis as follows:
Dangerous state of mind
Cannabis – marijuana, weed, hash
“Cannabis slows down your reactions and reduces your ability to respond to situations. The ‘drug’ changes your perception of distance and time, lowers your concentration, reduces coordination and makes you drowsy. Cannabis users often don’t realise their driving is affected until they are faced with an unexpected situation. It is only after they in danger that they realise they are incapable of making a quick or correct decision”.
On the NSW Transport website it lists the below penalties for driving with the mere presence of any of the following ‘drugs’ in oral fluid, blood or urine:
- Active THC (Cannabis)
- Methylamphetamine (Speed/ice)
- Methylenedioxymethylamphetamine (MDMA or ‘Ecstasy’) or
- Benzoylmethylecgonine (Cocaine)
Second / subsequent offence
Penalty notice fine
Licence suspension (if offence is dealt with through a penalty notice)
Maximum court- imposed fine
Automatic disqualification (disqualification period that applies in the absence of a specific court order)
If you decide to plead not guilty you may be able to prove police obtained evidence illegally. When carrying out tests, police have to abide by certain rules and procedures, when they fail to comply with these processes, evidence they obtained illegally may be dismissed and you may be found ‘not guilty’. You may also have a defence if the ‘drugs’ were prescribed by a doctor or if you were threatened or coerced into ‘drug’ driving (under duress). The NSW Centre for Road Safety states;
Illegal ‘drugs’ can be detected in your saliva by an MDT for a significant time after use, even if you feel you are OK to drive. The length of time that illegal ‘drugs’ can be detected by MDT depends on the amount taken, frequency of use … and other factors that vary between individuals. Cannabis can typically be detected in saliva by an MDT test stick for up to 12 hours after use. Stimulants can typically be detected for one to two days. If you think that you may have illegal ‘drugs’ in your system, the best decision is not to drive. Our Getting home safely tips have advice on how to avoid the risk of driving if you have used ‘drugs’ .
In 2016 Lismore Magistrate David Heilpern handed down a ruling to keep in mind. He said he had heard hundreds of cases in which drivers said they had waited days, sometimes weeks, after smoking Cannabis before driving. Yet they had still tested positive and been charged with the offence of driving with an illicit ‘drug’ in their blood. “In the vast majority of cases the time frame has been over 12 hours. On not one occasion has the prosecution cavilled with this contention”. Mr Heilpern said the prosecution had also remained silent when people claimed they had tested positive to Cannabis after consuming by passive smoking, eating hemp seeds, rubbing hemp balm or taking medicinal tincture. “The prosecution have remained silent when people claim that they consumed Cannabis weeks prior. Not once has any scientific evidence been produced to this court that supports the contention that the final or any other test only works for 12 hours. It could be that every single one of those defendants are lying to the police. However, on balance, I find that this is unlikely”.
In April 2019, NSW police expert on drug driving, Dr Judith Perl, admitted in court that detection by the RDT test depends on how Cannabis is taken. When questioned in general terms about the effectiveness of the police’s oral testing method in detecting different types of Cannabis consumption, Dr Perl said: “If it is ingested it will disappear out of the oral fluid very rapidly, or if it is ingested in a capsule form it will not even be detected [at all]’”.
NORTHERN TERRITORY (as @ February 2019)
The law about driving under the influence of a ‘drug’ is contained in the Traffic Act. The procedure for Drug Testing and the definition of a ‘drug’ is outlined in the Traffic Regulations. Some ‘drugs’ are strictly prohibited and some are prohibited unless they are prescribed by a medical practitioner and taken exactly as directed. The police have the power to use roadside saliva tests and blood samples to test drivers who may be driving under the influence of ‘drugs’. If police reasonably suspect you have prohibited ‘drugs’, they can search you or your car without a warrant. Police can direct you to submit to a saliva or blood test if:
- it is a random roadside driver test;
- you are the driver of a vehicle with a gross vehicle mass of 4.5 tonnes or more;
- police suspect you are driving under the influence of a ‘drug’;
- police believe you were the driver of a vehicle that was involved in an accident, provided the accident happened no more than four hours prior.
It is an offence to drive or to instruct a learner driver while there is a prohibited ‘drug’ in your system. The police do not have to show your ability to drive was affected in order to prove the offence, it is sufficient the ‘drug’ is in your blood. The maximum penalty for a first offence is $765.00 or imprisonment for three months. For a second or subsequent offence it is $1,147.50 or imprisonment for six months. An offence is a second or subsequent offence if you have previously been found guilty of either driving under the influence of alcohol or a ‘drug’ or driving with a prohibited ‘drug’ in the blood. For these offences, your licence will be automatically cancelled and you will be disqualified from driving for at least three months for a second offence or six months for a subsequent offence.
QUEENSLAND (as @ May 2019)
The State Government passed legislation under the Transport Operations (Road Use Management) Act 1995 and the Criminal Code Act 1899 to purportedly combat rising road fatality statistics. The Act provides for two types of ‘drug’ driving offences. Driving while a relevant ‘drug’ is present in your blood or saliva is the most common ‘drug’ driving offence a person is charged with. If you return a positive result on your first saliva test police will generally require you to do a second test. If the second test returns a positive reading your licence will be suspended for 24 hours.
If you are then charged with driving with a relevant drug present and you have no pending drug driving charges, your driver licence will remain valid until the charge is dealt with by a court, is withdrawn or otherwise discontinued. However, if you are charged with driving with a relevant drug present and have pending drug driving charges, your driver licence will be suspended immediately until your court date. When dealing with your charge of driving with a relevant drug present, a magistrate may:
- disqualify you from driving for between 1 to 9 months
- fine you up to $1,706
- impose a maximum term of imprisonment up to 3 months.
The law imposes a mandatory minimum period of driver disqualification for people convicted of this offence. This means, regardless of circumstances, a magistrate must disqualify you for a minimum period of 1 month to a maximum of 9 months. A court will consider individual cases and personal circumstances when deciding the appropriate penalty. Often this involves considering your traffic history and the impact losing your licence would have on your life.
Queensland maintains a strict zero tolerance policy for driving under the influence of illegal ‘drugs’. The offence of driving under the influence of a ‘drug’ is treated the same as the offence of driving under the influence of alcohol. This offence carries heavier penalties. If a police officer reasonably suspects your driving ability has been impaired by any drug you may be required to provide a specimen of blood for analysis. If you fail to provide a specimen, or a drug is detected in your blood, you will be charged with driving under the influence of liquor or a drug and your driver licence will be immediately suspended until the charge is dealt with:
- by a court
- is withdrawn or otherwise discontinued, or,
- you are issued with a court order permitting you to drive until your court hearing.
When dealing with your charge of driving under the influence of liquor or a drug, a magistrate may:
- disqualify you from driving for up to 6 months
- fine you up to $3,413
- impose a maximum term of imprisonment up to 9 months.
If you are charged with a repeat drug driving offence (you have been previously convicted of a drug driving charge in the last 5 years) a court may:
- disqualify you from driving for up to 2 years
- fine you up to $7,314
- impose a term of imprisonment for a period of time determined by the court.
If you fail to provide a specimen of saliva for testing, you may be fined up to $4,876 or sentenced to a maximum term of imprisonment up to 6 months. You may also be liable for the same penalties as if you were charged with the offence of driving under the influence of drugs.
If you are convicted of a ‘drug’ driving offence (including being under the influence in charge of a vehicle, failing to provide a blood specimen, or driving with particular ‘drugs’ in your saliva or blood), you will be disqualified from holding or obtaining a Queensland driver’s licence for a period of time. The court has no choice. You should hand in your driver’s licence at court as it is automatically cancelled and to keep a cancelled driver’s licence is an offence. You will not be eligible to apply for a work licence if you are convicted of the more serious offence of driving or being in charge of a vehicle while under the influence of a ‘drug’. You may be able to apply for a work licence if you are convicted of the lesser offence of having a ‘drug’ in your saliva or blood while driving or in charge of a vehicle. Not everyone will be eligible so you should get legal advice about this. As well as the licence disqualification, you are likely to be fined, given a community service order or jailed.
SOUTH AUSTRALIA (as @ February 2019)
Offences are dealt with under the Road Traffic Act 1961. On 29 November 2017, South Australian Parliament approved changes to alcohol and ‘drug’ driving penalties and roadside ‘drug’ testing. From 22 February 2018 the roadside ‘drug’ testing process has been streamlined so only one, rather than two, screening tests will be undertaken by police. If a screening test is positive, an oral fluid sample will be sent for laboratory analysis to confirm the presence of ‘drugs’. From 8 March 2018 the court penalty for a first ‘drug’ driving offence will increase. The minimum licence disqualification for drivers who elect to be prosecuted and are convicted by the court for a first ‘drug’ diving offence will increase from three to not less than six months. Licence disqualification periods imposed for repeat ‘drug’ driving offences will also increase;
- For a second offence the licence disqualification will increase from six months to not less than twelve months.
- For a third offence the licence disqualification will increase from not less than one year to not less than two years
- For a further subsequent offence the licence disqualification will increase from not less than two years to not less than three years
The penalties for refusal or failure to undertake a drug screening test, oral fluid analysis or blood test will increase;
- For a first offence the licence disqualification will increase from not less than six months to not less than twelve months
- For all subsequent offences the licence disqualification will increase from not less than two years to not less than three years
From 24 April 2018 the penalty for a first ‘drug’ driving offence that is expiated will increase. A driver who expiates a first ‘drug’ driving offence will incur a three month licence disqualification in addition to the existing expiation fee and four demerit points. A person ‘drug’ or drink driving places a child passenger at an increased risk of being involved in a serious crash. For this reason, a new offence will apply for ‘drug’ (or drink) driving with a child under the age of 16 present in the vehicle. This offence will apply to all ‘drug’ driving offences, including driving under the influence and refusing or failing to undertake an alcohol or ‘drug’ screening test. Drivers committing this offence will not regain their licence until they show they are not dependent. Penalties that apply for the respective ‘drug’ or drink driving offence such as a fine, licence disqualification period and demerit points will also apply.
Drivers who commit repeat ‘drug’ and drink driving offences, or who commit an offence with a child aged under 16 in the vehicle, must undergo a dependency assessment and be found not dependent in order to regain their driver’s licence. Under the new laws, these ‘drug’ and drink drivers will have the option of completing an alcohol or ‘drug’ dependency treatment program. Drivers must show they are not dependent in order to regain their driver’s licence. The cost of a dependency assessment will continue to be borne by the driver. Any costs arising from participation in a treatment program would also need to be borne by the driver. From 24 April 2018, any person caught driving unlicensed who was required to show they are not dependent on alcohol or ‘drugs’ will face a fine of up to $5,000 or imprisonment for one year and disqualification from holding or obtaining a licence for not less than three years. For more information see Drug driving and/or Alcohol and Drug Crash Fact Sheet.
TASMANIA (as @ February 2019)
Under the Road Safety (Alcohol and Drugs) Act 1970, police officers have powers relating to ‘drug’ and alcohol consumption in drivers. These powers allow for police officers to require a driver of a motor vehicle to undergo an oral fluid test to test for illicit ‘drugs’ (s7B). From Monday 3 December 2018, police officers will be able to collect oral fluid samples from drivers who return a positive result to a roadside drug test, instead of the driver being required to provide a blood sample. Another significant change to the Act includes increasing the time limit a driver can be drug or alcohol tested following a driving incident from three hours to five hours.
This is a public safety issue because of the dangerous nature of motor vehicle accidents and the contributory factors of alcohol and ‘drugs’ to motor accidents. This means police can require you to stop, submit to a breath test and produce identification at any time you are driving. This is also the case where a driver commits an offence (including a traffic offence), is involved in an accident or is found in a situation where police reasonably believe the person has just been driving or is about to drive. There does not have to be a reason to suspect or believe the person has committed or is committing an offence. You can be followed on to private property by police officers to have a breath analysis performed if you have attempted to evade this procedure by entering private property. If you drive with alcohol or drugs in your body you’ll have to appear in Court to face a Magistrate who will impose a penalty. The minimum penalty is losing your licence and paying a fine.
A court can order that a person be disqualified from driving if they are convicted of an offence under the Road Safety (Alcohol and Drugs) Act 1970. The court sends details of the disqualification to the Registrar of Motor Vehicles and provides an information brochure informing the person of the steps they may take to be considered for approval for a licence at the end of the disqualification period. The disqualification details and information brochure are sent by the Court and is served by hand delivery to the person; or registered mail to the person’s last known address. A person who has been disqualified by a court order may be eligible to apply to a magistrate for a restricted licence. At the completion of a period of disqualification, a person can apply for a driver licence which may be issued as a probationary licence.
VICTORIA (as @ February 2019)
The Road Safety (Drivers) and (General) Amendment (Behaviour Change Program and Other Matters) Regulations 2018 (SR 47 of 2018) (Vic) came into effect on 30 April 2018 making miscellaneous amendments to:
- Road Safety (Drivers) Regulations 2009 (SR 95 of 2009) (Vic); and
- Road Safety (General) Regulations 2009 (SR 115 of 2009) (Vic).
The amendments are a consequence of the enactment of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 (Act 68 of 2017) (Vic) and from 30 April 2018 the following changes came into place:
- all drink and ‘drug’ drivers will be required to participate in a behaviour change program;
- Victorian drivers convicted of drink or ‘drug’ driving interstate will be subject to Victorian drink-driving penalties; and
- licence suspensions for drivers detected with illicit substances in their system will increase from three to six months and from six to twelve months for repeat offenders.
The changes are part of Victoria’s strategy, with its purported aim of reducing the number of lives lost on Victoria roads to 200 or fewer and serious injuries reduced to 15% by 2020.
ZERO IS THE ONLY ACCEPTABLE NUMBER
Towards Zero is Victoria’s plan to ensure no one is seriously injured on our roads. It acknowledges that we all face risks on our roads. But our choice to use the road shouldn’t cost us our lives. That’s why we need to ensure we have a safe transport system in place. Together we can build a system that protects us from our own mistakes and those of others. The Towards Zero road safety principles are also in place across most Australian states and territories. Overseas, many other countries have adopted the same principles (also known as Vision Zero), including: Sweden, Canada, United Kingdom, France, Norway and large cities in the US, such as New York City, Los Angeles, Chicago and Boston.
From 30 April 2018 if you get caught driving with ‘drugs’ in your system, you’ll lose your licence for longer and will also need to complete a compulsory Drug Driver Behaviour Change Program. You can be given a penalty for:
- failing a roadside screening test;
- driving while impaired by a ‘drug’;
- refusing to cooperate with police.
The police also have the power to immediately suspend your licence or learner permit if they charge you with certain ‘drug’-driving offences. This suspension lasts until your charges have been decided in court. The table explains the different penalties. The value of a penalty unit changes each financial year and is published on the website of the Department of Justice and Regulation.
|First ‘drug’-driving offence and you received a Traffic Infringement Notice||You will:
|First ‘drug’-driving offence and you have to go to court||You will:
The court may also record a conviction.
|Second ‘drug’-driving offence||You will go to court and will:
The court may also record a conviction.
|More than two ‘drug’-driving offences||You will go to court and will:
The court may also record a conviction.
If police stop you, they can do a preliminary assessment of physical factors such as your behaviour, balance and coordination. If this assessment shows that you may be impaired by a ‘drug’, you will need to give blood and/or urine samples. You will be given a penalty if you are found guilty of ‘drug’-driving. There are different penalties depending on whether it is your first offence or if you have been caught before. The following table explains the different penalties.
|First ‘drug’-driving offence||You will:
The court may also record a conviction.
|Second ‘drug’-driving offence||You will:
The court may also record a conviction.
|More than two ‘drug’-driving offences||You will:
The court may also record a conviction.
You will receive even harsher penalties if you refuse to cooperate with testing requirements or refuse to give a saliva, blood or urine sample. If found guilty, you will:
- receive a fine of up to 12 penalty units;
- have your licence or learner permit cancelled for at least 24 months;
- need to complete an Intensive Drink and Drug Driver Behaviour Change Program.
WESTERN AUSTRALIA (as @ February 2019)
Full details of traffic offences and penalties related to drink and drug driving are contained in the Road Traffic Act 1974. Drivers can be subject to roadside ‘drug’ tests, with the aim to reduce the risk posed by ‘drug’ drivers on WA roads. Police have the power to stop drivers suspected of driving while impaired by any ‘drug’ and those found with illicit ‘drugs’ in their oral fluid can be charged with the offence of Driving with Prescribed Illicit Drug in Oral Fluid.
|First Offence||N/A||$500||3 demerits|
|$500||$1,000||6 months minimum disqualification|
Drivers found to be impaired by prescribed or illicit ‘drugs’ will be prosecuted for a more serious offence; Drug Impaired Driving under the Influence of Drugs. These offences apply where police have evidence of suspicious or erratic driving behaviour and where that suspicion is confirmed following a driver assessment and/or blood tests.
|First Offence||$900||$2,500||10 months minimum|
|Second Offence||$2,100||$3,500 OR
9 months imprisonment
|30 months minimum|
|Subsequent Offence||$2,100||$5,000 OR
18 months imprisonment
Announced in May 2018, ‘drug’ drivers will face automatic roadside licence bans as part of a suite of tough new measures the WA State Government is developing. The regime will close a loophole that lets ‘drug’-affected motorists keep driving until they face court, unlike serious drink-drivers who are suspended immediately. The penalty will also apply to drivers who are charged with the current lesser offence of having an illicit substance in their system but not being “under the influence”, with those drivers likely to be banned from getting back behind the wheel until the ‘drug’ is out of their body. The length of the bans in both cases is still being worked out and may be separate to the court penalties for the offences. In other measures to target impaired drivers, the Police and Road Safety Minister told a road safety research forum that the WA Government would increase drink and ‘drug’ testing to “unprecedented” levels next financial year. As part of increasing penalties for all ‘drug’-driving, the WA Government wants to reverse the onus of proof so the presence alone of an illicit ‘drug’ means a driver is impaired, similar to drink-driving.
Last Updated 20 May 2019