Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) and (2) on sheet 7657 together:

(1) Schedule 2, item 14, page 16 (lines 17 to 24), to be opposed.

(2) Schedule 2, item 18, page 21 (lines 13 to 18), section 361.5 to be opposed.

These amendments oppose mandatory minimum sentences for the reasons that Senator Collins outlined during the second reading debate.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

The government does not support these amendments. Firearms trafficking is amongst the most serious of crimes, particularly given its ability to facilitate violent and potentially deadly criminal acts. The entry of even a small number of illegal firearms into the Australian community will have a significant impact on the threat posed by the illicit market and due to the enduring nature of firearms a firearm can remain within that market for many years.

Mandatory minimum penalties send a very strong message on the seriousness of gun related crime and violence and certainly act as a deterrent for criminals. The government believes that mandatory minimum sentences are a stronger deterrent than increased maximum penalties. There are protections in place to ensure that mandatory minimums do not cause unjust results. Mandatory minimum sentences will not apply to children, and there is no minimum non-parole period. The offences preserve a level of judicial discretion to allow courts to take into account mitigating factors when setting the period offenders spend in custody. The government amended the explanatory memorandum in response to the Senate Legal and Constitutional Affairs Committee's report to make clear that mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may result in significant differences between the head sentence and the non-parole period.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I would like to put on record that the Greens will be supporting this amendment. For the reasons already described, we do not support the imposition of mandatory minimum sentences of five years imprisonment for illegal firearms trafficking. We think that the appropriate sentence is that left to the discretion of the judge. I would like also to ask the minister representing the Attorney-General a question around the definition of 'psychoactive substance'. What test will be applied for a substance to be officially determined as a psychoactive substance?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

The bill builds on Customs officers' existing powers to stop and seize suspicious goods by allowing officers to seize new psychoactive substances. The bill does not use a broad definition of psychoactive effects to capture these substances but includes 12 broad categories of exemptions. The only substances caught by this offence are those that are going to be used or supplied as alternatives to illicit drugs. It is true that offenders will not be required to know with absolute certainty that a substance has a psychoactive effect. They will only need to reasonably suspect that the goods contain a new psychoactive substance. The goods will only be released if the importer shows that they have a legitimate use or are not psychoactive. This approach is the best way of staying ahead of an ever-changing drug market. The bill will clarify that new psychoactive substances are illegal and potentially very dangerous. It will give Customs officers appropriate powers to stop these substances at the border and will allow the government time to develop and implement more-specific controls. The government believes these changes are critical to protect public safety.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Thank you for that explanation, but it still does not address the question that I was asking, which was: what test will be applied to determine whether a substance fits into that category? The definition of a psychoactive substance is one that is not clearly outlined in the bill. It is far too broad. I ask again: what specific test will be used to determine whether a substance is captured under this legislation?

The CHAIRMAN: Before I call the minister, Senator Di Natale, your questions as I understand them relate to schedule 1. The question before us relates to amendments to schedule 2. I was wondering whether you have questions in relation to the amendments. If not, we might deal with the amendments and then come back to your questions, given they are not dealing with the question before the chair. Are you happy for me to proceed that way?

Yes.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Thank you. In that case, I will put the question that deals with the two opposition amendments.

The question is that item 14 and section 361.5 in item 18 of schedule 2 stand as printed.

The CHAIRMAN: Minister, there is a question before you. Do you need it to be asked again?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

No. Just in response to Senator Di Natale's question, the government believes that this approach is, as I said before—

The CHAIRMAN: If those senators who do not intend to participate in the debate would either take their seats or leave the chamber, that would assist us in conducting our business. Minister.

Thank you, Chair. I understand Senator DiNatale has had an interest in this for a period of time. As I have said, the government believes that having this broad definition is the best way of staying ahead of an ever-changing drug market. I would just reinforce a couple of the points that I made a moment ago. The only substances caught by this offence are those that are going to be used or supplied as alternatives to illicit drugs. That is an important point. The bill deliberately uses a broad definition of 'psychoactive effect' to capture these substances but, importantly, it includes 12 broad categories of exemptions. The ban will clearly not apply to any substance with a legitimate use that is imported in accordance with relevant regulatory schemes. Substances without a listed legitimate use are those that are most likely to be imported for use as alternatives to illicit drugs. So the definition of psychoactive substance is deliberately very broad, but it has to be read in the context of the rest of the legislation and, as I have indicated, there are 12 broad categories of exemptions that form part of that overall context for the rest of the legislation.

I know you are looking for something definitive, Senator DiNatale, but the government has taken an approach—as I have indicated to you now on a couple of occasions—that it is about being able to stay ahead of a rapidly changing market. Governments are often criticised for not being able to keep up with changes in the way that the community works, and in this circumstance we have made the deliberate attempt to put in place a provision that allows us to stay ahead of an ever-changing drug market. We understand the damage that that can cause in the broader community. We are looking at the opportunity to develop and implement more specific controls, but we are in a situation where we need to act on this as quickly as possible.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Perhaps it might be instructive to use a couple of scenarios. Under this legislation, why wouldn't a substance like a herbal tea that contains caffeine but is not currently registered for use in Australia—such as some of the caffeinated beverages that are used by particular cultural groups—be captured under this bill? We know that caffeine has psychoactive properties; it can produce anxiety and tremor and so on. Why is it that a substance like that is not captured under this bill? It seems to me that it would be.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

Senator, that is clearly not the target of this piece of legislation. I did say to you before: substances without a listed legitimate use are the most likely to be imported as alternatives to illicit drugs, and so that is clearly the target of the legislation—substances without a listed legitimate use that are likely to be imported for use as alternatives to illicit drugs.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Thank you. I understand that it is not the target. The question is, will it be captured by this definition? And what is it that means that, under this definition, it will not be included? What is it that separates this from other substances that may be captured by the bill as it now stands?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

Senator, that particular example is captured by the food exemption.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

There are some beverages that are ingested that are not listed as foods. In fact, we had a presentation to the inquiry into this legislation which highlighted a specific example of a Uruguayan beverage; we have also had examples listed that include particular therapeutics used in some alternative or complementary medicines: they do in those instances have psychoactive properties. Why is it that they will not be captured under this legislation?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

My advice is that the ban will not affect the importation of these goods. Customs and AFP officers will continue to have their current practice of stopping these goods for further investigation if they suspect that they may contain illicit drugs. These goods may be required to comply with other regulations; for example, those regarding quarantine and biosecurity. So it is a matter of giving the flexibility to our law enforcement agencies to make those assessments. I think I said to you earlier: it is about giving officers the flexibility to stay ahead of changes, and to make those assessments. It does not necessarily mean, as I understand this, that they will be captured but that they may be captured.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

With respect, the question I am asking is not whether they will or will not be captured, but why: what is it that allows you to make a statement that says you understand they will not be captured, when many of the substances that have been described are not listed in the exemptions that are outlined in the legislation. They are not listed in the exemptions. They are used for particular indications that do not satisfy any of the exemptions. I understand that it is not the intention of the police to capture these substances, but if they are being imported, and if they are being imported with the very specific purpose of inducing some psychoactive effect, how is it that they will not be captured by this legislation?

I understand that it is not the intention of the bill. I understand that they are not being targeted. I understand all of that. But for the purposes of this bill, they satisfy the definition of 'psychoactive effect', they satisfy the definition of 'consume', and they are not listed with this substances that are exempt. Why won't they be captured?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

I go back to one of the points that I made to you earlier: substances without a listed legitimate use are those that are the most likely to be imported for use as alternatives to illicit drugs. So what we are looking at is substances that are the most likely to be used as alternatives to illicit drugs. The ban will not apply, as I have said to you before, to any substance with a legitimate use. So some of those that are already being brought into the country, which have a recognised legitimate use, fall into that category under the exemptions.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I feel we are in a bit of a circular argument here, but I have already indicated to you a number of examples where a particular substance with an active ingredient produces a psychoactive effect—it may be used for a therapeutic purpose; it may be that somebody who is anxious is prescribed a particular medication from an alternative health practitioner—and that substance is not listed under the exemptions. It is currently being imported, it is being prescribed by an alternative health practitioner and it produces a psychoactive effect. It may be to reduce someone's anxiety; it may be to assist somebody with sleep—some of the reasons that illicit drugs are used. Why is it that that drug—which is going to be used for those indications, which will produce a psychoactive effect and which is not currently listed along with the exemptions in the bill—will not be captured under this definition? I still have not had a satisfactory explanation.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

Firstly, if a substance is presented as having a therapeutic use, it will be exempt. I think I have mentioned that to you before. If substances are captured, it will be open to the importer to establish that they have a legitimate use. So I go back to the point that I made at the outset: we are taking this approach deliberately to stay ahead of an ever-changing market. You can attempt to prescribe as much as you like—as occurs in some other places—but you will never capture everything; I do not think it is possible. I know that you are looking for a very specific definition. The government has taken a deliberate decision to have a broad definition. I think that you are also right that we could go around this for a considerable period of time if that is what you want to do. You are looking for something specific; the government has taken a deliberate decision to have something that is not so specific but is broad. The reason that we have done that is to stay ahead of an ever-changing drug market, and it is a deliberate strategy of the government.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I just ask you to perhaps reflect on the answer that you have just given. The claim that if a substance has a therapeutic use it will be exempt is patently false. Many of these social tonics are marketed as having therapeutic uses—to help control anxiety, help with sleep or help relax. As a former physician, we prescribed medications for those indications; we prescribed drugs that had psychoactive properties to control those particular conditions. It cannot be that if a drug is simply promoted as having a therapeutic use it will be exempt, because it makes the legislation meaningless. I ask you to reflect on the answer that you have given and see if you can provide me with a satisfactory explanation.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

That was the advice that was given to me, and I go back to a point that I made to you earlier. The ban will clearly not apply to any substances with a legitimate use that are imported in accordance with the relevant regulatory scheme. Perhaps that is a clarification on the last point that I made, but that is a point that I did make to you earlier in the debate. The ban will not apply to any substances with a legitimate use that are imported in accordance with the relevant regulatory scheme.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

What you are suggesting there is that if a substance has a therapeutic indication, a therapeutic use, and is not registered with a particular scheme—as many currently imported substances are not—then it will be captured. That is what I am trying to get at. You cannot argue on one hand that any drug with a therapeutic indication will be exempt and then on the other hand argue that it needs to be registered under a particular framework like the TGA and so on. There are many, many substances that are imported and are used for therapeutic purposes that are not registered and are not listed in the list of exemptions, so they will be captured—they must be. What you are suggesting to me is that they are not the target. It does not matter whether they are the target or not. They satisfy the definition under the law, and, therefore, you are not providing any assurance that these substances will not be restricted.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

You are selectively quoting me. I repeat a point that I made in conjunction with the answer to the last question: if some of these substances are captured it will be open to the importer to establish that they have legitimate uses. If a product makes a therapeutic claim, it would have to be imported under the relevant import scheme for therapeutic products. It would, therefore, be exempt from the scheme.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I think we have got somewhere there, because what you are suggesting is that the onus is on the importer to demonstrate—

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

If you listened to my answer it'd be good.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I am sorry—am I supposed to respond to that?

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

No, continue, Senator.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

The onus is on the importer to demonstrate the particular use or indication of that product. If an importer is importing a substance that the importer determines is for therapeutic purposes, what is the test that is going to be applied to distinguish a substance for therapeutic purposes from one that is being used to mimic an illicit drug? What is the test that you are going to use to make that distinction?

Sitting suspended from 18:30 to 19:30

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill, as amended, be agreed to.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

I had a question to answer from Senator Di Natale in relation to an importer making a claim that a product would have an effect or a use. I have to say I am a bit surprised, Senator, that you would actually make that statement. An importer would have to establish that the substance is for a legitimate use, not just make the claim. In respect of the effect, it would also have to establish that the substance would have that effect. Even in our food laws, to make a claim about a therapeutic effect, you have to actually establish that; you cannot just put it on the label. Also under our food laws, it is not legal to mislead. I am surprised that you would make that statement. An importer would have to establish that a substance is for legitimate use and would have to establish the effect. I think that clarifies the point. Therefore, as I have stated previously, it is dealt with under the legislation.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Yes, that is true if the substance is going to be imported under the Therapeutic Goods Administration or under FSANZ regulations. That is absolutely true. But there are other substances that are imported that are not covered by those regulatory frameworks. I have got a list of substances, if you would like me to go through them with you. There are a number of them. They were brought to our attention through the course of the inquiry. There is, for example, the extract of an Amazonian plant, Guayusa. The leaves of this plant contain caffeine. It has a range of polyphenol antioxidants in it. There are claims that it is healthier than other caffeinated alternatives. It has been used traditionally for thousands of years in Ecuador. That specific extract would be captured by this definition. It is not listed under the TGA or FSANZ and therefore it does not have to demonstrate that it has a therapeutic effect. It does not have to substantiate the claim because it is not imported under either of those regulatory frameworks. So why is it that that substance would not satisfy the definition of a psychoactive substance, given that it does contain caffeine and other substances? Why is it that it is not captured?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

We are not saying it will not; we are saying it may, and it would be open to the importer to establish that they have a legitimate use.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Isn't it a problem that, if a substance that is not the intention of this act is captured, the onus is on the importer to establish that it does not have a psychoactive effect? The question I return to is a question I asked just before the dinner break, which is: how does the importer establish that a substance does not have a psychoactive effect? What is the test to establish that claim?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

Senator, we actually have been through all this, and that is the intent of the legislation. As I have said to you a number of times, that is the intent of the legislation. It has a broad definition deliberately. The reason it has a broad definition is so that we can stay ahead of an ever-changing drug market. You can keep asking the question and, Senator, I will keep on giving you the answer. That is fine. I am quite content with that. That is the rationale of the government. I have stated that to you a number of times. And that is the reason that we have taken the approach that we have.

I do not believe that it is unreasonable that someone who wants to put something into the Australian market should demonstrate its efficacy or its use. We do that for a number of products. We say that, if a food wants to make a therapeutic claim under our Food Standards Australia New Zealand legislation—and you have acknowledged that—it should demonstrate that. I have acknowledged that a new substance may be caught in the process. I have also said on a number of occasions that the purpose of this is to capture substances that are most likely to be imported for use as alternatives to illicit drug use. So, if you are telling me the substance you have just described might be imported as an alternative to illicit drug use—

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

No, I haven't said that.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

well, that is the implication that comes to me from your question—and it is captured, and I have said that it may be, then it is open to the importer to demonstrate, to establish, that it is there for a legitimate use. It goes back to a strategy which I said is deliberate, and I will keep repeating the strategy. It is deliberately a broad definition and it is designed so that the government can stay ahead of a rapidly changing drug market. It is a deliberate strategy.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I am yet to get an answer on how they establish that it is not used for that intended purpose and it does not have a psychoactive effect. We are talking about a product—in this case one that contains caffeine, which we know has a psychoactive effect—that is imported by particular outlets, that is used as an alternative to other caffeinated beverages and that satisfies the definition under the legislation of being a psychoactive substance. You said that it may be caught; it sounds as if it is not a particularly effective piece of legislation if substances like this 'may be caught'. You have also said that the onus is on the importer. What I am asking is: how does the importer satisfy the authorities that this is not a substance that is being imported with a view to mimicking the effect of other psychoactive substances? How does that occur? What is the test that is applied?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

The test is clear on the face of the bill. A substance may be seized if an officer has a reasonable suspicion that a substance has a psychoactive effect and is not otherwise covered by another import scheme. Further, the bill contains a clear definition of 'psychoactive effect', and I will read that out for you. It says:

psychoactive effect, in relation to a person, means:

(a)   stimulation or depression of the person’s central nervous system—

you have already described some of these in your questions this evening—

resulting in hallucinations or in a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood; or

(b) causing a state of dependence, including physical or psychological addiction.

So that is very clear.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

No, it is not.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

Well, it is very clear, and I have said to you that our strategy in this is—

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I am waiting for the minister to answer the question I asked. I am happy to wait here all night.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

Well, Senator, that is up to you.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

You have said in your answer, Minister, the conditions for which a substance may be restricted, and you have also said that the onus will be on the importer. What you have not demonstrated, and what I need an answer to, is: how does an importer demonstrate to the authorities that this is not a psychoactive substance that should be captured by this definition? For example, I am company X; I import product Y into the market. The authorities say to me, 'We suspect that this may be a substance that has psychoactive properties. We are going to restrict the importation of your product.' How do I satisfy the authorities that this substance does not have psychoactive properties that are intended to be captured by this bill? How do I, as the importer, satisfy to the authorities that my substance should not be captured by this piece of legislation?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Agriculture) Share this | Link to this | Hansard source

You would provide evidence that demonstrates what you are claiming.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

() (): I may not be claiming anything. That is the whole point. You keep coming back to the issue of claims. I might be importing this product and there might be absolutely no claim to it, but the authorities may suspect that it is a psychoactive substance. We may have our border enforcement authorities look at a product and express concerns because they might get a tip-off to say, 'We're worried that the product that's being imported has psychoactive properties and is being used to mimic other existing illicit substances.' The onus is then on me to prove that it does not have those properties. How do I do that? (Quorum formed)

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill, as amended, be agreed to.

Bill agreed to.

Bill reported with amendments; report adopted