MEDICINAL CANNABIS (COMPASSIONATE ACCESS) BILL 2018

2nd Reading Speech

15 February 2018


The Hon. ADAM SEARLE ( 10:16 ): This bill seeks to decriminalise the use and possession of cannabis for medical purposes. It is about restoring dignity to people with a terminal illness or another serious medical condition who are seeking temporary relief from their pain and suffering. By passing this legislation, this House can remove unnecessary hurdles for sufferers of terminal and chronic illnesses.

Seeking respite from relentless and unwavering illness should not be a criminal offence. It should be met with our sympathy and our support. If we have the ability to relieve someone’s pain and suffering, we should do it. We know that for some people with terminal illnesses and other serious illnesses, medicinal cannabis is the only effective form of pain relief. They should not be treated as criminals under our legal system, as they are at present. If members of this House sincerely believe in alleviating suffering, they will vote for this bill because it is well past time to act.

Two years ago, the then Federal health Minister Sussan Ley claimed the passage of amendments to the Narcotic Drugs Act on 24 February 2016 had opened the door for Australian patients and doctors to access a safe and legal as well as reliable supply of medicinal cannabis products. However, that has proven to be a mirage because there has been no safe and legal local production, and health authorities around Australia—and even here in New South Wales—in effect have been blocking prescribers’ applications for imported product, even when they have been accepted by the Therapeutic Goods Administration [TGA]. As a result, it is reported that only about 350 Australian patients have so far secured legal prescriptions and it is estimated that only 50 of those are in New South Wales—many of them children in trials to control seizures—while an estimated 100,000 people Australia-wide have had to turn to the black market. On a population basis, that means that somewhere between 30,000 and 40,000 people in New South Wales have to resort to black market supply. Even where approval has been given, the staggering cost of importing products has placed much-needed relief simply beyond the means of many families and individuals.

There is a growing body of observational evidence for the effectiveness of medical cannabis to treat conditions such as epilepsy, pain, chemotherapy-induced nausea, motor neurone disease, and other serious conditions or illnesses. But evidence to support its therapeutic effects in the traditional Western medical model only now is being documented because of a century of its illegal status. Despite that, there is extensive research in other jurisdictions—for example, including Israel—documenting the efficacy of cannabis. In January of last year a report from the National Academies of Sciences, Engineering, and Medicine in the United States of America provided a rigorous review of scientific research published since 1999 about what is known about the health impacts of cannabis and cannabis-derived products, such as marijuana and active chemical compounds known as cannabinoids, ranging from their therapeutic effects to their risks for causing certain cancers, diseases, mental health disorders, and injuries.

The committee that carried out the study and wrote the report considered more than 10,000 scientific abstracts to reach its nearly 100 conclusions. The committee proposed ways to expand and improve the quality of cannabis research efforts, enhance data-collection efforts to support the advancement of research, and address the current barriers to cannabis research. One of the therapeutic uses of cannabis and cannabinoids is to treat chronic pain in adults. The committee found evidence that patients who were treated with cannabis or cannabinoids were more likely to experience a significant reduction in pain symptoms. For adults with multiple sclerosis related muscle spasms, there was substantial evidence that short-term use of certain oral cannabinoids improved their reported symptoms. Furthermore, in adults with chemotherapy-induced nausea and vomiting, there was conclusive evidence that certain oral cannabinoids were effective in preventing and treating those ailments. This is entirely consistent with the lived experience in Australia and evidence given to the Upper House inquiry, on which I served.

Last year, many of those involved in the administration of medicinal cannabis regimes in other countries, including the Netherlands, Germany, Israel, and other places, met in Sydney at a conference. I was able to meet with them and learn of the clinical data, research, and lived experiences of patients that have informed their approaches to the relief of suffering. There is more than ample evidence of the effectiveness of medicinal cannabis, at least for some patients. That was the evidence given to the Upper House inquiry, which was reflected in my own experience. My father passed away from cancer, and although traditional pharmaceutical medicine did alleviate pain and some of the symptoms of the chemotherapy and cancer, it impaired his quality of life. But medicinal cannabis treated the symptoms and gave him back his quality of life. I have significant personal investment in this—I make no bones about that—but I am not the only one. This is the lived experience of people who have walked along this path.

Despite this, there remains significant problems with access to medicinal cannabis for people in New South Wales. Specifically, there are widespread concerns about NSW Health refusing access to medicinal cannabis, even in circumstances where access had already been granted by the Therapeutic Goods Administration under Category B of the Special Access Scheme. In one example, on 7 February, Prime7 News Wagga told the story of Lex and Kathy. Kathy is suffering from lewy body dementia and Parkinson’s disease. Every day, she suffers from severe pain and is so sick her husband has become her full-time carer. She is among the tens of thousands who could benefit from access to medicinal cannabis. Despite receiving approval from the Therapeutic Goods Administration in September 2016, her access to medicinal cannabis has been twice rejected by NSW Health because the couple lives in Tumut, which is deemed to be too far from the relevant medical expert based in Sydney.

We all know the struggles people in regional and rural New South Wales face when accessing medical support that they need, but this is a good example—or a bad example—of a double punishment. We know a patient needs access to the product, but because they are living in a place that is challenged for medical services, we punish them again. It seems extraordinary in this day and age that this is how things pan out. There are also reports that some of the products being made available are not in fact cannabis—in some cases, they are pharmaceutical products derived from cannabis while in other cases it is reported that they are not but are being portrayed as medicinal cannabis. This matter is addressed in the definition section of the bill. This month, the Victorian Government has unveiled its Medical Cannabis Industry Development Strategy aimed at supplying half of Australia’s medical cannabis needs by 2028. In that State, imported products have been supplied to 29 children with intractable epilepsy, soon to be expanded to 60. It is hoped that the Victorian scheme will assist in supplying an additional 30 children with locally produced product. The New South Wales Government does not appear to have any plans for locally produced cannabis, but if there is we will hear about it in this debate.

Recently, the Federal Government announced a system of export permits to be created by regulation that will enable the export of local product to meet medical cannabis needs in other countries. That is a welcome development. The two developments underscore the dire position being experienced in New South Wales, where, despite the promises of former Premier Mike Baird and the hopes and expectations of the community, access to medicinal cannabis has not been made a practical reality. There are two key issues and both are addressed by this bill. Firstly, people are suffering today—not next week, month or year—and due to the lack of an effective supply, an estimated 100,000 sufferers and their carers across Australia, approximately 30,000 to 40,000 of which are in New South Wales, are being forced to access product through the black market. Those people are being exposed to the risks of the criminal justice system. The law needs to be changed to remove this risk.

In 2013, there was a five-party consensus, which covered the whole political spectrum, that this should be done. NSW Labor offered to support the coalition Government to achieve these aims. Why has this simple but effective measure not been taken? Secondly, relying on those who need medical cannabis to use backstreet dealers is totally inadequate. There needs to be a safe, legal and local supply of product. Victoria is showing it can be done. We know illicit cannabis grows well in New South Wales. Why should our State miss out on the development of a useful and potentially lucrative new primary industry? It should not. We must provide for a safe and local supply chain.

The bill adopts key recommendations of the New South Wales Legislative Council committee inquiry into the use of cannabis for medical purposes. The recommendations received unanimous support from five political parties from across the political spectrum. I served on that committee, along with three others who also remain in the Chamber. There was our able and effective chair, the Hon. Sarah Mitchell; Deputy President and Chair of Committees the Hon. Trevor Khan, and the Hon. Robert Borsak. I pay tribute to the work of our departed colleague Dr John Kaye, who was a campaigner for medicinal cannabis and an effective and invaluable member of the committee. I would much rather the Government take up the challenge posed by this issue and take the necessary steps itself, but it has not done so in nearly five years. Despite the rejection of Labor’s bill in the other place last year, I again propose these measures in the hope that this place can put party politics to one side and put patients first. One of the purposes of the bill is to protect medicinal cannabis users and their carers from liability under the criminal laws of this State. Recommendation 2 of the Legislative Council report urged:

That the NSW Government introduce an amendment to the Drug Misuse and Trafficking Act 1985 to add a complete defence to the use and possession of cannabis, so as to cover the authorised medical use of cannabis by patients with terminal illness and those who have moved from HIV infection to AIDS. The features of this system would include:

  • provision of a complete defence from arrest and prosecution for the use of cannabis and possession of up to 15 grams of dry cannabis or equivalent amounts of other cannabis products, and equipment for the administration of cannabis, by the patient

  • provision of a complete defence from arrest and prosecution for the possession and supply of up to 15 grams of dry cannabis or equivalent amounts of other cannabis products, and equipment for the administration of cannabis, by the patient’s carer

  • that the defence be restricted to persons listed on a register of ‘authorised cannabis patients and carers’, with eligibility contingent upon certification by the patient’s treating specialist medical practitioner that the patient is diagnosed with a specified condition

  • the defence would only apply where the use and supply of cannabis does not occur in a public place, and

  • a review of the amendment commence within three years of the date of commencement.

This recommendation responded to the compelling evidence given to the committee. Although the recommendation was limited to benefiting those with a terminal illness, this bill extends to those with a serious medical condition. Since the committee’s report was delivered in 2013, evidence from those suffering chronic pain that is unable to be treated by conventional medicine, or where the side effects of conventional medicine seriously compromise quality of life, has convinced the NSW Labor Opposition that we need to go further to provide more options for pain management. The change also responds to the evidence of a friend of mine and former member of this House, the Hon. Paul O’Grady, who, although now deceased, for many years before he become terminally ill gave evidence on using medicinal cannabis to treat the symptoms of his illness and stimulate appetite and the like. He credited medicinal cannabis with keeping him alive for much longer than he otherwise would have.

Part 1 of the bill provides the key building blocks for the scheme we seek to create. Clause 3 sets out the definitions used in the legislation, which are aligned with those in the Drug Misuse and Trafficking Act 1985. The central definition is what is meant by the term “cannabis”. It is defined as “cannabis leaf, cannabis oil, cannabis resin; a preparation, admixture, extract or other substance containing any proportion of cannabis leaf, oil or resin; or a substance derived from a plant of the genus Cannabis that is declared by the regulations to be cannabis”. This last definition is a safety valve, should it be needed, to guard against the use of artificial substances or compounds not presently contemplated as being cannabis, which do not have the beneficial effects and which may constitute a danger to those who consume or use the material.

Clause 4 defines “terminal” or “serious medical condition”. This is central to the scheme since, to be eligible to be registered as a medicinal user of cannabis, a person must suffer from a terminal or other serious illness. Reflecting the deliberation of the Legislative Council committee, the bill defines a terminal illness as an illness or condition that is likely to result in death in a reasonably foreseeable period. Serious illness is defined to be a serious illness or condition that is likely to result, and to continue to result, in a significant reduction in the affected person’s quality of life, whether that is from the symptoms of the illness or condition or from its treatment. These are, I believe, commonsense definitions, able to be readily understood and accepted by laypersons and experts alike. The definitions are, if you like, a narrative gateway into the system of medicinal cannabis use.

If persons suffer an illness or condition as defined then they can seek registration under part 2 of this bill. That part sets out a detailed regime for registration that, at its heart, requires a person to have a medical certificate certifying that they suffer from the terminal or serious illness as claimed. Outside terminal conditions, there will need to be a judgement formed by the regulator, in this case the Secretary of the Department of Health in New South Wales, that the illness or condition does warrant the description of “serious”. To assist in this process and to provide a safeguard against an overly bureaucratic approach, clause 4 (2) sets out a range of conditions that are for the purposes of this legislation serious. They are:

• severe intractable epilepsy,

• human immunodeficiency virus [HIV],

• motor neurone disease, multiple sclerosis,

• the neurological disorder known as stiff person syndrome,

• severe and treatment-resistant nausea and vomiting due to chemotherapy, or

• pain associated with cancer, or neuropathic pain.

These conditions have been chosen in part based upon the evidence to the Legislative Council inquiry but also from dialogue with sufferers of chronic or permanent conditions for which traditional, Western pharmaceutical medical care is not able to adequately provide relief, at least not without other negative consequences. This provision also enables further conditions to be declared to be a terminal or serious illness by regulation.

This bill will achieve its aims by establishing, by law, a registration scheme for medicinal users of cannabis and their carers. This is drawn from recommendation 3 of the Legislative Council committee report which provided, relevantly:

That … the NSW Ministry of Health establish and administer a register of ‘authorised cannabis patients and carers’ certified by the patient’s treating specialist medical practitioner and issue patients and carers on this register with a photo identity card verifying that they qualify for exemption from arrest and prosecution.

Because the registration is intended to protect persons from the application of the criminal law, it must be regulated openly and by law. Very importantly, we do not think it satisfactory to have any scheme in this area dependent upon police officers being asked simply to not enforce the existing law by the Executive Government. At its heart, such an approach is anti-democratic and fundamentally dangerous. Laws must be properly enforced. If the law is no good, or outdated, or does not meet community expectations and needs, let us have the courage and honesty to say so—and to change the law.

Under part 2 of the bill, the health secretary is empowered to register a person as a medicinal user of cannabis, or a carer of a registered medicinal user of cannabis. The body of the arrangement is found in clause 5. Any application for registration as a medicinal cannabis user must also be accompanied by a medical certificate certifying as to the terminal or other serious medical condition suffered by the person. Any application for registration as a medicinal user of cannabis or carer of a registered medicinal user of cannabis must be in the approved form and be accompanied by the required proof of identity. To be able to be registered as a medicinal user, the applicant must have a terminal or serious medical condition as defined, have their principal place of residence in New South Wales, and meet any other requirements in the regulations, and not otherwise be disqualified from registration.

A person may be registered as a carer only if they have the care of, or are assisting in the care of, a person who is a registered medicinal user of cannabis, and the registered medicinal user of cannabis consents to registration of the person as their carer. A carer’s principal place of residence must also be in New South Wales, and they must meet any other requirement set out in the regulations, and not otherwise be disqualified from registration. An application may be made on behalf of a child by the parents or guardians of the child. Registration as a medicinal user of cannabis, or carer of a medicinal user of cannabis, remains in force for a period set out in the regulations, and may be renewed.

There is also a regime, found in clause 6, for the cancellation of any registration. The health secretary may cancel a person’s registration as a medicinal user or carer if satisfied that the registration was obtained improperly, or the person is not eligible to be registered as a medicinal user or carer, or the person has committed more than one offence against this Act or the regulations. Other grounds for cancellation may also be provided for in the regulations. Before the Secretary of the Ministry of Health takes any action, he or she must provide notice to the person or, in the case of a child, the guardian, providing the reasons and allowing at least 14 days to make submissions in relation to the proposed cancellation. The health secretary must cancel any registration if application is made by a registered medicinal cannabis user for that cancellation.

Clause 7 provides a regime for the inspection of any registration and the return of any certificate. Importantly, the bill before this House will also permit the creation of a lawful supply chain of medicinal cannabis, something the Legislative Council committee was not able to definitively deal with, given the legal complexity involved and the time constraints under which their inquiry took place. However, it is worth noting that the committee did not ignore this crucial aspect. Recommendation 4 provided:

That the NSW Ministry of Health and Department of Attorney General and Justice give further and detailed consideration to the issues surrounding lawful supply of crude cannabis products for medical purposes.

It is unsatisfactory, to say the least, that this appears not to have occurred since that inquiry reported to the Parliament in May 2013, nearly five years ago. While I note the extensive measures enacted under similar legislation in Victoria and Queensland, the sheer volume of the bills considered by those Parliaments discloses the legal complexity involved in making this idea a practical reality. To achieve the same in this State would involve extensive discussions with multiple agencies, both here and at Commonwealth level, and amendments to literally dozens of different pieces of legislation.

The approach we take in this bill is a simple, facilitative measure found in part 3, clause 8, which will enable the State to establish a scheme for authorising the activities needed to create a lawful supply chain. This will include the cultivation and harvesting of cannabis plants, the manufacture or production of cannabis, as well as the storing and supplying of cannabis. The regulations will also permit the creation of a scheme for the granting of any necessary licences, permits or other authorities for the activities, including requirements for criminal record checks or other eligibility requirements that are determined as necessary and prudent, the imposition, variation or revocation of conditions of licences, permits or other authorities. This will extend to provision for the suspension or cancellation of any licence, permit or other authority. The activities that a registered user of medicinal cannabis is lawfully able to engage in, and the activities lawfully permitted to a carer, are set out in part 4, clause 9. The provision will permit the administration of cannabis by a registered user to himself or herself, and the administration, or assistance in the administration, of cannabis by a carer to the registered medicinal user. It will also allow registered users and carers to possess cannabis and equipment for use in the administration of cannabis.

Clause 9 will permit registered users and carers to also manufacture or produce cannabis by making a preparation or admixture, either at the user’s principal place of residence or at the carer’s principal place of residence. It will also permit registered carers to supply cannabis and equipment for use in the administration of cannabis to the registered medicinal user. Each of these activities is made lawful only to relieve a registered user’s terminal or serious medical condition, and only to the extent it is authorised by a licence, permit or other authority under the legislation or regulations. Clause 9 (4), together with schedules 1 and 2 to the bill, ensures the effectiveness of the regime provided for in this legislation is not adversely impacted by existing criminal law. Schedule 1 makes the necessary amendment to the Drug Misuse and Trafficking Act 1985, and schedule 2 amends the Poisons and Therapeutic Goods Act 1966. Importantly, nothing in the bill excuses a registered medicinal user for any driving or other offence committed while under the influence of cannabis. Part 5 contains the offences and penalties.

Clause 10 provides that medicinal cannabis may not be administered by a registered user to himself or herself or by a carer to a registered user in a public place, which is defined in clause 3 to mean a place where members of the public are lawfully entitled, invited or permitted to be present in their capacity as members of the public, whether conditionally or unconditionally. This non-technical and commonsense definition encapsulates the intention of the Legislative Council committee report.

Clause 11 sets out the limits of cannabis that may be lawfully possessed. A registered medicinal user, or registered carer, must not possess more than 15 grams of cannabis leaf. The Legislative Council committee recommended that registration would make a person who is relevantly ill eligible to possess up to 15 grams of dry cannabis or equivalent amounts of other cannabis products. This amount was chosen because, as it noted in chapter 2 of the report, individuals in possession of up to 15 grams of dry cannabis—at least as at 2013—were able to be subject to the Cannabis Cautioning Scheme. The bill adopts that limit and also provides, in terms of the other equivalent amounts of cannabis in other forms, that a registered user or carer may possess up to one gram of cannabis oil and 2.5 grams of cannabis resin. The penalty for breach of these provisions is up to 15 penalty units, or $1,650.

I am very conscious that the amounts set, both in the Legislative Council committee report and the bill, are relatively small. I am also aware, from conversations with users of medicinal cannabis and their carers—and particularly with the remarkable Lucy Haslam, whose compelling personal narrative, both in the past and continuing, is instructive to all of us engaged in this debate—that in many cases the amounts set out are inadequate to the need being faced by those with terminal and other serious conditions. So that we may continue the conversation about what will meet those needs, and to provide the necessary flexibility, clause 11 explicitly provides that the regulations made under the legislation may authorise the possession of “other amounts” of cannabis leaf, oil and resin. The bill provides a facilitative and flexible range of measures that enables us to meet the differing needs of people in the community according to what they are suffering.

Part 6 provides for the enforcement of the legislation. Clause 12 incorporates into the bill part 8 of the Public Health Act 2010 and provides that public health authorised officers can exercise their powers under that Act to administer and enforce the legislation. Clause 15 provides for a review of the legislation to determine whether the policy objectives remain valid, and whether the terms of the law remain appropriate for securing those objectives. While most reviews of this kind take place after five years of a law being in operation, consistent with recommendation No. 3 of the Legislative Council report, and reflective of its novel approach, the bill provides for a review to be undertaken as soon as possible after three years.

I urge all members to vote in favour of this legislation in order to alleviate the pain and suffering of so many of our fellow citizens. I cannot justify treating like criminals people who are facing terminal or extremely serious illnesses who are looking for pain relief. People who are suffering so much already should not have to live in fear of being charged. We should not treat their parents or carers, who are simply seeking to help their loved ones, like criminals. I have spoken to parents who are concerned that when they access relatively small amounts of cannabis to relieve their child’s suffering they face the possibility of criminal charges being laid. A parent buying a small amount of cannabis for a child with severe epilepsy should never be treated as a criminal.

I have reflected on the tragic circumstances of Lucy Haslam. The story of her family and her son Dan is illustrative of the needs that the bill seeks to address. Unfortunately, the difficulties being experienced by that family continue, with another close family member being in a similar situation. Despite the goodwill and the cross-party support for the measures embodied in the Legislative Council report, the law still has not kept up with the community’s needs. Since I foreshadowed introducing this bill, I have received much correspondence from people who need what this bill would offer.

I will not mention her name but I received correspondence from a woman who said, “I am writing to you to personally beg for your help. I am a grandmother who up until a year ago had no reason to live. This changed with cannabis oil.” I will not outline her medical treatment, but she continues: “I can’t afford to eat or to catch a train. I’ve had to make the choice between food and life.” She cannot afford to go through the Federal scheme; she cannot afford the time, the delay and the expense that would be involved in importing the product from overseas. She said: “Please help me and the hundreds of thousands like me. I deserve to live with quality of life.”

That is the challenge for us all. I do not pretend to come to this issue value-free or neutrally. I am influenced by my personal experiences, as many people in this Chamber are. We have tried to craft in this bill sensible and moderate measures that provide for a flexible approach to meet the needs of people in our society who are suffering. We would like it if everyone in this Chamber supported these provisions and these measures. But the challenge is this: if members are not prepared to do so, they should not walk away. If members are not prepared to support these measures, they should put up their own proposals. The governing parties and their members on the committee supported this approach. The Government has commissioned medical research and activities are taking place through the office of the NSW Chief Scientist and Engineer and the health department. But it is not enough, and we are getting reports that the health department is actually getting in the way.

Whether that is correct or whether that is a misunderstanding, the truth is that the law has not changed in this State. The criminal law needs to be adjusted and we need to have a safe and lawful chain of supply of product. We cannot be dependent on foreign pharmaceutical companies to provide the product, particularly not in circumstances where Victoria is producing, and the law is about to change to allow us to export. If members are not prepared to support these measures they should put up their own proposal, but without delay. It is well past time we acted: In May it will have been five years since the unanimous report of the upper House was delivered. No wonder citizens look sometimes despairingly at politics. Yes, there will always be room for party political disputes, and minds may legitimately differ on a range of issues. But where there is so much agreement, how can there be no action? The time to act is now. I earnestly implore all members of this Chamber to support these measures.