Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

As Australians would be aware, since 13 September this year, there have been a number of confirmed cases of people finding needles in strawberries. While the initial reporting concerned Berrylicious and Berry Obsession strawberries from Queensland, police and health authorities have warned of copycat cases across Australia. On 19 September it was reported by the AAP that:

Australia's strawberry contamination scare has now spread across six states …

The Minister for Home Affairs said on Wednesday that there were up to 100 reported cases, although many of these were believed to be hoaxes.

In response to these and other stories of needles being found in fruit, some supermarkets have pulled strawberries from their shelves. In addition, a number of trade partners—including Russia, New Zealand and the United Kingdom—have reportedly blocked Australian strawberry imports. This is a block that we would all, I'm sure, sincerely hope is removed as soon as possible. It is a completely unacceptable situation. It's having a devastating impact on strawberry farmers across our country. The fear and potential panic that has been created in the community is completely unacceptable as well.

The Morrison government has responded by proposing some changes to Commonwealth laws that the government says that it hopes will assist in deterring and in prosecuting the individuals who have engaged in what are obviously recklessly destructive behaviours. Specifically, this bill would amend section 380 of the Commonwealth Criminal Code to increase the penalties for existing Commonwealth offences relating to the contamination of goods from a maximum period of 10 years in prison to a maximum period of 15 years in prison. Those existing offences apply to a person who contaminates goods with the intention of causing public alarm or anxiety in Australia, widespread or nationally significant economic loss in Australia through public awareness of the contamination or possible contamination of the goods, or harm to or creating a risk of harm to public health in Australia.

In addition, the bill would amend section 380 of the Criminal Code to introduce new offences. The new offences would mirror the existing offences, except that they will apply to a person who contaminates goods and is reckless as to whether this will have one of the consequences I've just outlined in relation to the intention offence. So what those additional mirroring offences propose to do is introduce an additional fault element for this kind of offence.

I should say that this range of food contamination offences was introduced into the Commonwealth Criminal Code in 2004 following work done by the Model Criminal Code Officers Committee. As with much of the Commonwealth Criminal Code, these provisions replicate offences that already existed then and exist today at a state and territory level. So there are, obviously in different forms, a range of food contamination offences with very serious penalties already in state and territory law. I should note, just to give some context to what is being put forward here by the government, that the reports of sentences and convictions relating to Commonwealth law do not record that there has ever been a conviction under any of these Commonwealth criminal offences. There have, of course, in the intervening period since 2004 been a range of convictions under state and territory law for food contamination offences.

The other aspect of this bill, quite different to the increase in penalties for the existing Commonwealth offences and the introduction of a new fault element of recklessness, is an amendment to the definition of public infrastructure in section 82 of the Commonwealth Criminal Code so as to include a provision that infrastructure that relates to providing the public with food is to be included in public infrastructure in future. Also to be included is food that is intended for the public and is produced, distributed or sold by a constitutional corporation for the purposes of constitutional trade and commerce. If the amendment to the definition of public infrastructure is passed, a person will commit an offence if: the person engages in conduct that results in damage to food infrastructure or to food that is intended for the public and is produced, distributed or sold by a constitutional corporation for the purpose of constitutional trade and commerce and the person intends that the conduct will, or is reckless as to whether the conduct will, prejudice Australia's national security or advantage the national security of a foreign country; the person engages in conduct that results in food infrastructure or food becoming vulnerable to misuse or impairment or to being accessed or modified by a person not entitled to access or modify it and the person intends that the conduct will, or is reckless as to whether the conduct will, cause prejudice to Australia's national security; or the person engages in conduct and does so with the intention of planning to commit one of the offences referred to above.

I would note, for the assistance of the House, that section 82 of the Commonwealth Criminal Code contains the sabotage provisions which were recently introduced as part of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill introduced to the parliament by the former Prime Minister, Mr Turnbull, on 7 December last year. Those sabotage provisions carry penalties ranging from, in some cases, a maximum of seven years imprisonment to, in other cases, a maximum of 25 years imprisonment. I would have to say that a curious device has been adopted here by the government in its rush to introduce some legislation to deal with the problem of contamination of strawberries. It's a matter of concern that the government may well not have thought through all of the possible unintended consequences—and you've only got to state it to understand how curious it is—that might attach to redefining public infrastructure so as to include food in the way this bill proposes to do.

We have not had time to ascertain the reasons for the fact that there have been no cases recorded of conviction against any of the existing offences in part 9.6 of the Commonwealth Criminal Code. As I said, they were first introduced in 2004. But it may very well be, and it's likely, that authorities use equivalent state and territory criminal offences in relation to the contamination of goods and food. Those state and territory offences have a broader application than the equivalent Commonwealth offences, due to the constitutional limitations on the Commonwealth's legislative power.

Labor is supporting this bill, but I would note that having such a short time frame between the drafting and the passage of legislation to amend the Commonwealth Criminal Code is highly unusual. The introduction of new criminal offences is not something that should be taken in any way lightly. The opposition received the draft of this bill at 6.05 pm yesterday and has had little time—and the public has had no time—to fully consider what the consequences of this legislation might be. It seems entirely possible that there are unintended consequences particularly, as I mentioned, in relation to the introduction of a new definition of public infrastructure. I call on the government to review the operation of this bill carefully over the coming months to ensure that the changes to our criminal law that this bill will introduce do not have unintended consequences. I appreciate the shortness of time we have, because it is the government's intention to pass this bill through the parliament today, but I ask the Attorney-General and the government to consider whether an amendment might be possible to provide for a statutory review of these provisions within 12 months of the commencement of the legislation simply to ensure that a thorough look is had at the consequences, unintended included, of passing legislation in this manner.

I am minded to say that this legislation should not be regarded as a substitute for something that as yet has been absent—that is, a coordinated national response. We all should be asking what else could be done, in such a coordinated national response, to assist our farmers. The people of Australia must be protected from food contamination, but they already are by a range of state, territory and Commonwealth laws. Farmers must be protected, but practical action is needed in addition to this legislation in order to get to the problem that has emerged. One might have thought that consideration of whether rewards should be increased and whether the Commonwealth can provide the assistance of officers of the Australian Federal Police to state and territory police forces who are working on this problem might be a more practical approach than simply legislating. One of the real matters that should always be taken into account by this parliament in legislating is that legislation, particularly the criminal law, looks backwards. It can operate only when perpetrators have been located, and practical action should be taken right now to ensure the perpetrators are located and apprehended and their activities brought to an end.

Finally, it's already symptomatic of this chaotic Morrison government that tremendous energy can be applied to some matters while a whole range of other government activity is simply languishing. What happened, one might ask, to the foreign donations bill introduced to the parliament on 7 December last year? What has happened to energy policy? What has happened to climate policy? One could go on. It is clear that the government can summon energy to do things in a hurry when it wants to. It ought to be applying the same energy to a whole range of other government inaction on which we are simply left lamenting the lack of government policy.

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