Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor welcomes measures to improve Commonwealth criminal justice arrangements, and we are pleased that the government is bringing this bill before the Senate to build on the reforms undertaken in these areas by the former Labor government. While the opposition supports the intent of this bill, we share the concerns of people or agencies and state prosecutors about mandatory, minimum sentences for firearms trafficking offences. Labor will move amendments to remove the imposition of mandatory minimum sentencing, and I will explain our position on this in more detail soon.

The bill includes amendments to ban the importation of substances which have a psychoactive effect that are not otherwise regulated or banned. The bill seeks to ensure that the Australian Customs and Border Protection Service officers have appropriate powers to stop these substances at the border. It seeks to correct an error in the definition of the minimum, marketable quantity in respect of a drug analogue of one or more listed, controlled drugs. It seeks to introduce new international firearms trafficking offences, amend existing cross-border firearms offences and streamline the international transfer of prisoners regime within Australia and clarify the processes involved. It seeks to amend certain slavery offences to clarify that they have universal jurisdiction and validate access by the Australian Federal Police to certain investigatory powers in designated state airports.

I will summarise Labor's position on each of the six schedules to this bill. I will address our concerns regarding the mandatory sentencing provisions in schedule 2 last, to provide a more detailed rationale for our proposed amendments.

Schedule 1 of the bill will implement amendments that were announced in June 2013 by the former Labor government. It represents the Commonwealth legislative component of a broader national response to the new psychoactive substances (NPS) and was developed by the Intergovernmental Committee on Drugs (IGCD) and endorsed by the Commonwealth, state and territory ministers at the Law, Crime and Community Safety Council on 4 July 2014. As outlined in the IGCD document, there are at least two overseas schemes that incorporate a reverse-onus component, those in New Zealand and Ireland. The scheme proposed in the bill is similar to that used in Ireland. Schedule 1 will amend the Criminal Code Act 1995 (the Code), and the Customs Act 1991 to strengthen the Commonwealth's ability to respond to the new and emerging illicit drugs known as 'new psychoactive substances'.

New psychoactive substances are designed to mimic the psychoactive effects of illicit drugs, but their chemical compositions are not captured by existing controls on those drugs. Evidence suggests that manufacturers design the chemical structures of psychoactive substances to avoid these controls and prohibitions. The amendments in schedule 1 will fill the regulatory gap between when psychoactive substances first appear and when they are controlled by other parts of the Criminal Code or the prohibited imports regulations. These measures will ensure that new psychoactive substances cannot be imported in the period during which the government assesses their harms and considers the appropriate controls to place on them. The measures take a precautionary approach to dealing with psychoactive substances. They are intended to work in parallel with and not to replace any of the existing schemes which regulate the importation of illicit drugs and of substances with a legitimate use in Australia. The rationale for restricting NPS is the same as that which applies to other drugs—that is, to reduce the harms associated with them. NPS are often marketed as 'legal highs' and professionally packaged, which can give the impression that they are safer to use than illicit drugs with similar effects. However, very little is known about their health impacts, especially their longer-term impacts.

Schedule 3 will amend the International Transfer of Prisoners Act 1997 (the ITP Act), which governs Australia's international transfer of prisoners (the ITP scheme). The ITP scheme aims to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving as far as possible the sentence imposed by the sentencing country. This is a voluntary scheme which requires the consents of the prisoner, the Attorney-General, the relevant transfer country and, where applicable, the relevant Australian state or territory to or from which the prisoner wishes to transfer. It has become clear that improvements to the ITP Act are required to clarify and streamline the process—to make the scheme more straightforward, to make it operate more efficiently and to reduce unnecessary burdens and resources required to process ITP applications. The amendments in this schedule seek to address these issues with the effect being timelier processing of applications, a reduced resource burden and improved usability of the legislation by prisoners while still maintaining prisoners' rights and due process.

Schedule 4 amends the Code to clarify that slavery offences in section 270.3 have universal jurisdiction. This approach accords with the prohibition of slavery as a jus cogens, or peremptory norm, of customary international law; meaning that it is non-derogable and applies at all times and in all circumstances, and that it is one which is expressly prohibited by a number of treaties to which Australia is a party. It is consistent with Australia's recognition of universal jurisdiction as a well-established principle of international law, and as one which extends to a range of crimes including crimes against humanity.

The purpose of schedule 5 is to validate action undertaken by a member of the AFP, or a special member under the Commonwealth Places (Application of Laws) Act 1970, for an investigation of an applied state offence in relation to a Commonwealth place that would otherwise have been invalid because the Commonwealth place was not, for a time, a designated state airport. Its retrospective application is limited to the period starting 19 March 2014 and ending on 16 May 2014 and refers only to those investigatory powers specified in subsection 5(3A) of the Commonwealth Places (Application of Laws) Act 1970. Schedule 6 will make minor and technical amendments to the Code, to the Financial Transaction Reports Act 1988 (the FTR Act), and to the Surveillance Devices Act 2004. The purpose of the amendment to the FTR Act is to give permanent effect to an exemption granted by the AUSTRAC CEO in relation to account-blocking obligations of cash dealers in certain circumstances. A consequential amendment will also be made to the Surveillance Devices Act 2004 to remove reference to an offence against a repealed section of the FTR Act. These amendments will give permanent effect to an exemption granted by the AUSTRAC CEO from an obligation for cash dealers to block accounts in certain circumstances. This exemption was granted by the AUSTRAC CEO due to the fact that the obligation was largely duplicative of safeguards in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

In addition, schedule 6 will make minor amendments to section 301.11 of the Code to correct an error in the definition of a 'minimum marketable quantity' in respect of a drug analogue of one or more listed border-controlled drugs. This error occurred when section 301.11 was inserted into the Code in November 2012 by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012.

I would now like to address the provisions of schedule 2, which Labor supports, and to explain the rationale for amendments we are moving to remove the imposition of mandatory minimum sentencing. This schedule will implement amendments to expand existing Commonwealth firearms offences to cover firearm parts as well as whole firearms, which were previously included in the Crimes Legislation (Unexplained Wealth and Other Measures) Bill 2012 introduced by the former Labor government, but which lapsed ahead of the 2013 federal election. Schedule 2 will: create new international firearm offences of trafficking prohibited firearms and firearm parts into and out of Australia—a new division 361 of the code; extend the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in division 360 of the code to include firearm parts as well as firearms; and introduce a mandatory minimum five-year term of imprisonment for the new offences in division 361 and existing offences in division 360 of the code.

The Senate Legal and Constitutional Affairs Legislation Committee conducted an inquiry into the bill and tabled a report on 2 September last year. Labor senators agreed with the majority of the report, except for the recommendation made in respect of the proposed mandatory minimum sentences for firearm-traffic offences. The only justification that I can recall from the evidence on that occasion was the suggestion that the only rationale for this was that it was a coalition election commitment. We raised our concerns regarding this provision in additional comments included in the committee report. I draw attention to the fact that the Senate inquiry received evidence from peak law organisations and state prosecutors to outline their strong opposition to this provision, and I thank those agencies for raising their concerns—particularly as it had been highlighted that this was an LNP coalition election commitment. Again, it seems that the coalition were not listening. I hope that they are listening now.

I would also like to highlight that the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers produced by the Attorney-General's Department—the minister's own department—states that minimum penalties should be avoided. This is because, inter alia, they interfere with judicial discretion to impose a penalty appropriate in the circumstances of a particular case; they may create an incentive for a defendant to fight charges, even when there is little merit in doing so; they preclude the use of alternative sanctions, such as community service orders, that would otherwise be available in part IB of the Crimes Act 1914; and they may encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions. Mandatory minimum sentences are uncommon in Australian law; therefore, the controversial element of this bill remains the introduction of mandatory minimum sentencing.

In November 2012 the then Labor government introduced the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 into the House of Representatives. This bill lapsed in the Senate at the end of the 43rd Parliament. As part of this bill, Labor introduced a maximum penalty of life imprisonment for these offences. This would have made the maximum penalty for trafficking in firearms the same as the maximum penalty for trafficking in drugs. This is not uncommon for such a serious offence. It was intended that the new basic offences would attract a penalty of 10 years imprisonment consistent with the existing firearms trafficking offences. However, it was proposed that the aggravated offences would attract a higher penalty of life imprisonment—the same as the maximum penalty applied to drug trafficking. This maximum penalty was designed to send a very strong message that trafficking large numbers of illegal firearms is just as dangerous and potentially deadly as trafficking large amounts of illegal drugs and that the same maximum penalty should apply.

In this particular instance, Labor is of the view that the imposition of mandatory minimum sentencing for firearms trafficking offences should be avoided. A better course of action would be to implement a regime of penalties for firearms trafficking offences reflecting that proposed by Labor when it was in government. Labor senators urge the government to adopt a similar sentencing regime in relation to the proposed firearms trafficking offences. This would send a strong message to serious criminals but avoid the issues associated with mandatory minimum sentences and better preserve judicial discretion.

There is no evidence that mandatory sentencing laws have a deterrent effect, but there is clear evidence that they can result in injustice because they remove the discretion of a judge to take into account particular circumstances, which may result in unintended consequences. In addition, mandatory sentencing removes any incentive for defendants to plead guilty, leading to a longer, more contested and more costly trial. Labor opposes mandatory sentencing and detention regimes because they are often discriminatory in practice and have not proved effective in reducing crime or criminality.

The opposition will move amendments to remove the imposition of mandatory minimum sentencing, and I look forward to crossbench support. Indeed, perhaps the government is now listening and we can attract government support as well.

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

I begin my statement on the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 by saying that the focus of my comments is on schedule 1—that is, the section of the bill that deals with the importation of psychoactive substances. It is important, I think, firstly to try and find some common ground and to start from that point—particularly at a moment when there is such division in our national parliament. It is important to understand that what we are trying to achieve, I am sure, is to minimise the harms associated with the use of these substances. Like the government, I am very keen to see the harms associated with new, emerging psychoactive substances—as with all illicit substances—reduced. That is the focus of my remarks.

No-one in this place understands this better than I do. During my time as a drug and alcohol clinician, I have seen people who have suffered considerable harms from drugs such as heroin, prescription drugs, cannabis, alcohol and, indeed, a wide variety of substances. So I, like the government, am very keen to see us do everything that we can to minimise the harms associated with these so-called synthetic or psychoactive substances. Where we depart is in our approach to the problem. The psychoactive substances bill is a very poorly thought through response to a very complex issue, and it is an issue that governments over successive parliaments have failed to deal with. We are still grappling with settling on the most appropriate response to minimising the harms associated with substance abuse.

If we are going to respond in a measured and sensible way, firstly we have to have a sense of the scale of the problem. The size of the problem when it comes to these substances—called variously social tonics, synthetic drugs, legal highs and so on—is enormous. There are 230,000 users of synthetic substances in Australia, according to the Australian household drug survey. I will say that again: almost a quarter of a million Australians are currently using these substances. The 12,800 units of social tonics sold in Australia had a sales value of over $692 million, with almost $70 million in GST collected from these substances alone. So it is an enormous problem.

The concern I have got is that the bill does not do anything to address the issue in a systematic, sensible and measured way. It is just another knee-jerk reaction, like reactions before it, that adds to the harms. That is the concern here. Rather than minimising the harms associated with these substances, we run the very real risk of increasing the dangers associated with these substances.

In referring to schedule 1 of the bill, I reiterate that the Greens support the other schedules in this legislation, with the exception of the introduction of mandatory minimum sentencing of five years for the offences listed in schedule 2, which are unrelated to psychoactive substances; otherwise we will not oppose any of the other measures in this bill. Schedule 1 says that for 'new psychoactive substances' there will be a system of restrictions on their importation. So it will introduce an offence into the code for importing a psychoactive substance that does not have a legitimate use, or even a substance that makes a representation that it has those effects. So it does not actually have to have a psychoactive effect; it just has to make a representation that it has a psychoactive effect. In order to implement this, the Australian Federal Police will be given increased powers to search, detain, seize and destroy these substances.

The flaws in the legislation are numerous. The first is that there is no definition of what a psychoactive substance is. There is no definition in law to determine whether a substance is psychoactive and has a psychoactive effect or does not. It makes no reference to specific ingredients in some of these substances, it does not address the question of who is using them or how they are being used and it makes no reference to whether they are of low risk or high risk. It is just a blanket prohibition on the importation of new psychoactive substances.

What is a psychoactive substance? I asked that question during the hearing into this bill, and we did not get an answer, because there is no answer. This is a lay term. There is no definition in medical practice and there is certainly no accurate definition or measurable definition in law. It seems to be that this is a case of: 'We don't know what we're looking for, but we'll know when we find it.' It is a crazy approach to what is a serious issue. The definition used in the bill about what constitutes a psychoactive substance is far too broad, it is all-encompassing, and the problem is it can potentially place innocent people at risk—innocent people who import or possess harmless substances for therapeutic reasons—and they will now face criminal prosecutions.

We heard from ethnobotanists and those people who are trained in the use of plants. They point out some of the flaws in the bill. For example, one plant species from Chinese medicine might be permitted. Another species that is used in Indian medicine or South American medicine, which might have the identical active constituent, would be prohibited because it is not listed on the TGA, unlike a plant species that is used in Chinese medicine, which may be listed through the TGA. So we are going to capture important therapeutic drugs and drugs that people use in traditional medicines.

We also heard evidence about certain teas. For example, there is a special tea that South Americans drink that would be banned under this definition, even though many of these teas are drunk for cultural reasons. They have caffeine, like ordinary tea, which is a psychoactive substance. Caffeine is a drug that produces a therapeutic effect, that in some people produces anxiety, tremors and so on. It is, by definition, a drug that has psychoactive properties, and yet some of these substances that people are bringing in, some of these herbal teas that are drunk in particular cultures, will not be allowed to be imported under this definition. Again, the Attorney-General's Department could not give a clear definition about which products would be captured and which would not, because we have no idea what their definition of 'psychoactive' actually means.

There is no process for determining whether a seized product has a psychoactive effect. How do you measure that? What is the test? There is none. We heard that there was no test, no process, no framework for when the importation of a substance was restricted, that it would be tested to determine whether it had a psychoactive property. Despite asking for that definition, all we got was that, yes, the definition was 'enormously broad' and that they will need to consider whether certain harmless products, like herbs in teas, would be included in the bill. That is all we got from the Attorney-General's Department.

Perhaps more fundamentally, and one of the concerns I have, is that we do know from the long history of illicit drug use that one of the worst ways of addressing a problem like this is to drive it underground, to allow a market to flourish that is completely unregulated and to ignore what we know is the best evidence when responding to the problem. We heard evidence from people who are currently involved in the importation and sale of these illegal synthetic substances that highlighted the size of the market, the dimension of this problem and the importance for them to allow regulation that ensures that low-risk substances, substances that produce little harm, can be used ahead of those substances which produce significant harm, which are currently now available in various fora. At the moment we have no way of distinguishing between the two. We know, for example, that we have new synthetic substances, some of which attempt to produce the effects that cannabis produces. These substances are emerging all the time. We know that they are currently legal, but we have very little information about which of those substances cause harm to people and which do not. And it is partly because previous responses targeted individual substances, which has created an environment where new and potentially more harmful, less tested substances are emerging.

My objections to the bill are that it does not seek to understand what these new substances are and the level of associated risk—they are either high-risk or low-risk substances—and that, if they are high-risk substances, the Australian community is alerted to them. Most people who use these substances do not want to hurt themselves; they do it for all sorts of other reasons, and we should be ensuring that we create a framework where people get information that alerts them to the fact that particular high-risk substances are on the market and that they are to be avoided. This is where I think the New Zealand model is very instructive. If we were to move to the New Zealand approach we would be saying that a level of regulation is necessary here. It is regulation that says, 'Let us determine, through an appropriate body, what substances are low risk so that those people who will continue to use these substances no matter what legislation we put in place'—remember, a quarter of a million Australians are currently using them—'are using them safely, and that dangerous substances are not available on the market.'

In New Zealand they have a pre-market assessment scheme. It puts the onus on the importer, saying that if you have a synthetic psychoactive substance—a 'social tonic', as the industry likes to call them—which you believe should be available for sale here, then you have to prove that it is of low risk; that consumers will not be harmed by that substance. Until you can prove that, then they will not allow the sale of that substance through any regulated framework. It is a model that Australia should follow—a pre-market assessment scheme that better recognises the challenges posed by importing the range of substances that are currently imported, some of which are low risk and some of which are high risk.

We do know that there are serious harms for those high-risk substances—there were two men who tragically died in circumstances linked to some of these substances earlier this year—but we also heard the response from Dr David Caldicott, who is an emergency medicine doctor here in the ACT and who has also published widely on the harms associated with licit and illicit drug use. He is an expert in the field. He said very clearly that some of these synthetic cannabinoids have the potential to be significantly more dangerous than the natural cannabis plant that they are supposed to mimic. Because we do not have any standards or regulation or quality control, what you end up with is a variety of substances, some of which are of high toxicity. In that respect, he is saying that there is a relationship with the illicit drug market here, and, through our response to illicit drugs, we have created a whole new market for these synthetic legal substances that as yet are available without risk of prosecution.

It is impossible to have this debate without having a broader debate about how best to minimise the risks associated with currently illicit drugs. Dr Caldicott says we need 'wiser responses to the problem of harm from drugs if these deaths are not to become a more frequent occurrence'—nothing about cracking down on importation of all drugs. He, like many others, recognises the scale of the problem, the impossibility of restricting the importation of these substances and, worse still, the unintended consequence of driving the production of a market here in Australia. What this risks doing—one of the great unintended consequences of this bill—is that, where there is currently no market for the production of these substances here in Australia, we are going to create one. We are going to create the production of some of these substances in backyard labs right around the country because we are restricting importation from overseas.

Again, that leads to uncontrolled availability of substances of unknown toxicity—a great risk. I do not want to be standing up here in the months to come, when young people are dying because they are taking what are now illegal synthetic substances that have been made here in Australia—substances of unknown toxicity—and saying: 'We knew this would happen. We knew the consequences of a piece of legislation like this—that it would lead to the consumption of more untested products, some of which will be of extremely high toxicity.' My great concern is that, in trying to solve one issue, we are going to create another issue which is much more harmful than the original problem we are trying to address.

I have to say that in the bill we are debating today schedule 1 has been amended following the Legal and Constitutional Affairs Legislation Committee majority report on this bill, and I acknowledge the work of Senator Macdonald, who was chair of that inquiry. This bill recognises that the original legislation was even more deeply flawed than the current one; that it would capture a range of plants and fungi and their extracts, all of which potentially could have a psychoactive effect. To their credit, the government did change the bill so that a person who might import a plant, like an ornamental cactus that contains a substance that might have a psychoactive effect when consumed, would no longer be committing an offence. But we need go to much more broadly. There was overwhelming evidence that plants, fungi and their extracts would have been captured by this legislation. That is why this is such a bad piece of law.

While the government has listened and did respond to some of this expert evidence, unfortunately it remains blinkered about some of the other expert evidence. I would have liked us to look more deeply at the approach taken by our colleagues in New Zealand, who have decided to take this problem head on—to recognise that the market is so huge, that people will continue to take these substances and that if they are going to do it, then they must consume substances that are of low risk.

I do understand that governments want to prevent people from being harmed by dangerous substances. It is what we want, it is what the Greens want, I am sure it is what the Labor Party wants and I am sure it is what the coalition wants. We want to reduce the harms associated with the consumption of these substances. On that we can all agree.

I do not come at this issue from some libertarian perspective like some of my colleagues in this chamber do, who suggest that people should be allowed to use these substances, that the state has no role and that we should not interfere. I think the role of the state is to minimise the harms associated with their use. This is where we disagree with the government's approach. We do not believe that the government—or the opposition, it must be said—has taken the time to examine the implications of this bill or the evidence and the lessons learned from overseas.

In opposing this bill, I say that we need a new approach. Let us look to New Zealand. Let us look at what is working over there. We have a model in place for how to better minimise the harms associated with the use of some of these substances. Let us recognise that everything we have done in this space so far around the use of psychoactive substances has been a failure, that we are no closer to the objective of reducing the harms associated with illicit drugs than we were decades ago and that we risk repeating the same problems with the use of these new so-called legal synthetic drugs or social tonics. It is indeed time for a new approach, and we look forward to the government reconsidering their position on this legislation.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

As Senator Di Natale has said and as others who have contributed to this debate have also said: any substance that can cause harm to our fellow Australians is something that all governments and all parliamentarians have to be very conscious of and concerned about. The government, as part of its attempt to try and address some of the problems that synthetic and other drugs cause to our fellow Australians, has introduced the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014—and I will say a few words about the bill shortly. Firstly, though, I want to say that for all the criticisms that parliaments and parliamentarians get sometimes, it is pleasing to see that occasionally the system works. I am delighted with this piece of legislation, which the government is going to amend following a report by the Senate Legal and Constitutional Affairs Legislation Committee that looked into the bill. It does show that when our system works it works well.

I know that this bill would have been prepared by well-meaning advisers in the department who were taking into account all they thought needed to be taken into account—governments work on the advice given to them by professional public servants and professional advisers—and this bill was the result. The Senate committee hearing gave other experts, people in daily contact with the subject of the bill, the opportunity to give evidence. I have to say in this instance that the evidence given was very clear and very persuasive, and the committee was left in no doubt that there was an unintended error in the legislation, and the committee was able to make a recommendation. As I say, I am very pleased that the government has followed that recommendation.

As others have said, the bill consists of six schedules which incorporate a range of measures intended to improve criminal justice arrangements and specifically to ban the importation of all substances that have a psychoactive effect that is not otherwise regulated or banned. The first recommendation that the Senate committee made as a result of the evidence given was that the bill be amended to exempt plants and their extracts from the application of schedule 1. Four written submissions, as well as very clear oral evidence, was provided to the committee. This evidence focused specifically on the impact of a proposed ban on the importation of plant material and urged that an exemption be created.

I particularly acknowledge the very clear evidence given by Mr Torsten Wiedemann and Mr Niall Fahy from a company with the lovely name of The Happy Herb Company. Mr Wiedemann submitted that many commonly imported medicinal and culinary herbs would not fall within the food exemption under the Therapeutic Goods Act or the Food Standards Australia New Zealand Act, because they do not have a long history of traditional consumption in Australia and New Zealand. I think it was Mr Fahy who pointed out that dangerous plants can be and already are easily prohibited through existing legislation, without importers being able to circumvent the legislation through making minor modifications to the molecular structure of the substance. He said that that was a crucial difference between naturally occurring plants and compounds created in a laboratory. The Happy Herb Company representative said to the committee:

If this law were passed we would have to immediately conduct a massive audit of every single herb that is sold throughout our retail outlets…. There are potentially an awful lot of herbs that could fall under the remit of the legislation. So we would have to immediately figure out which herbs were going to be affected and revamp a lot of our catalogues and our online shop and negotiate with our suppliers and manufacturers to create different products.

The banning of the importation of plants and herbs used by these two in particular and by others like them was not in itself dangerous, and it did show a real error in the legislation.

One of the other things I noted with some interest was that the New South Wales government had recently made some reform in this same area, with legislation particularly relating to state matters. The New South Wales government in its wisdom has exempted foods and plants that fit these categories. It seemed strange to me that the New South Wales government and the Commonwealth were both at the same time really doing the same thing. The New South Wales government came up with what I and the committee thought was the right approach, and the Commonwealth came up with a different approach. I suspect, as I say, that this was just an inadvertent overlooking of some of the issues that were raised with us. I again say I am delighted that the government has accepted that and has introduced an amendment, which I am told is on sheet GZ107 and is now incorporated in schedule 1 of the bill, which excludes plant and fungal matter from the scheme.

The whole inquiry, I thought, was very, very useful. There were a number of contributors. I thank Senator Di Natale who, with his medical background, sometimes has a more precise view of some of the evidence that is given. I thank the other members of the committee—Senator Collins, Senator Bilyk, Senator O'Sullivan, Senator Reynolds and Senator Wright—for their contribution as well. As always, I thank the committee secretariat for producing the Senate committee's report, which has been tabled.

The legislation, whilst dealing principally with psychoactive substances, did also include other measures, as the title of the bill suggests. One of the recommendations of the committee was that the government amend the explanatory memorandum to make it clear that sentencing discretion should be left unaffected in respect of nonparole periods—in appropriate cases there may be significant differences between nonparole periods and the headed sentence—and that the mandatory minimum is not intended to be used as a sentencing guidepost where the minimum penalty is appropriate for the least serious category of offending. I note that the issues on sentencing discretion for nonparole periods and, more generally, for minors are addressed at item 14 of the bill's revised explanatory memorandum, which clearly provides that mandatory minimum sentencing should not form, and be a guidepost for, the duration of nonparole periods.

The committee took evidence from a wide range of people across all aspects of the bill—and some of these have been gone into by other contributors to this debate, so I will not go into them in any detail. I did mention that the bill also creates new offences that criminalise trafficking in firearms and firearm parts into and out of Australia. Existing firearms trafficking offences in the Criminal Code are limited to trafficking between the states and territories and do not criminalise the trafficking of firearm parts. The bill seeks to introduce a mandatory minimum sentence of five years imprisonment for offenders charged with a firearms trafficking offence under the Criminal Code. I note that the bill does not prescribe a minimum nonparole period. I also note that the explanatory memorandum specifically says that the minimum sentence should not be used as a guidepost for any minimum nonparole period. The legislation also makes necessary amendments across a range of acts that will enhance our criminal justice framework against the importation of psychoactive substances and save Australian citizens and communities from the harm that inevitably comes from the prevalence of these substances in our communities. The bill will provide a range of other law enforcement enhancements, including the strengthening of penalties for firearms trafficking and importation.

I congratulate the Attorney-General and the Minister for Justice on their dedication and their concentration on giving our law enforcement agencies the very best tools possible, whilst protecting our civil and human rights, in their fight against crime and, in particular, organised crime. Crime in the drugs area has such an awful impact on many in our community, including many of our younger people. Sometimes people say that some of the laws we introduce are a bit draconian. But you have to try and get the balance right on the protection of our society and, in very many cases, protection from ourselves almost. You have to balance that against our human and civil rights. I am always one who comes down more on the side of doing what needs to be done to give our law enforcement agencies the tools they need to fight organised crime.

Our police forces, the Crime Commission and ASIO—all of these enforcement agencies—if they set one foot out of line, get front-page headlines and accusations of improper conduct. So they have to be very, very, very careful that they do everything strictly according to the law. But I often lament the fact that the people they are fighting against, the criminals, do not follow any rules or regulations. They do not give a damn about people's lives, their future, their health and their safety. Very often our law enforcement agencies fight this organised crime with one hand tied behind their back. But sensible legislation like this and other legislation that the Attorney-General and the Minister for Justice put forward do enable the law enforcement agencies to better deal with organised crime and the sorts of activities that do so badly impact on Australians.

I urge the Senate to support the bill.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 represents a bold stride towards a police state. I oppose it. It authorises police misconduct, attacks the independence of the courts and doubles down on the war on drugs. Campbell Newman may have lost the Queensland election, but his spirit lives on in the hearts of the coalition and Labor, both of which support this bill.

I mentioned police misconduct. Let me explain. A regulation authorised the AFP to conduct certain types of searches, seizures, arrests and detentions at various airports prior to 19 March 2014. Another regulation authorised such conduct after 17 May 2014. In the period between these dates, the AFP was not authorised to conduct these searches, seizures, arrests and detentions. If AFP officers engaged in unauthorised searches, seizures, arrests and detention over this period, they did a disservice to the people they were meant to serve. They committed a crime and those who were searched, arrested or detained should have known that those crimes would be prosecuted. But that is not the view of the coalition or Labor.

Instead, they want this bill to retrospectively authorise any illegal searches, seizures, arrests and detentions over this period. This sweeps under the carpet any violations of property and liberty that occurred, robbing the victims of justice. It also sets a precedent for future retrospective authorisations. So instead of the AFP ensuring that they act within the law, this bill will encourage the AFP to not worry so much about the boundary between what conduct is and is not legal. If they step over the line, the major parties are willing to redraw the line and do so retrospectively.

I mentioned an attack on the independence of the courts. This bill introduces an offence for international firearms trafficking, an offence that already exists in the Customs Act. What is new is the penalty of a minimum five years imprisonment. Judges will no longer be able to calibrate penalties according to the individual circumstances of which they have the greatest awareness. All discretion will rest with police and prosecutors, as they decide whether the case should get to court. There is no history of lenient sentences for international firearms trafficking, so there is no case for this trampling on judicial independence, a hallmark of a fair and just society.

This bill also introduces a minimum five years imprisonment for the trafficking of firearms and firearms parts across state borders, in contravention of state firearms law. The new Commonwealth offence applies regardless of penalties and defences in state firearms law. This is an even more extreme trampling of the independence of the courts and the rights of the citizen, with a side-serving of undermining states' rights thrown in for good measure.

Finally, I mentioned that this bill doubles down on the war on drugs. It does so with such extreme overreach that everyday individuals and businesses will be cast as criminals unless the law is enforced by sensible public servants in all places and at all times. It does this by introducing an offence of importing a substance whose presentation implies that it is a lawful alternative to serious drugs. So, if you promote your harmless product by suggesting that taking it is as cool as dropping an ecstasy tablet, you have got a problem.

Further, the bill introduces an offence of importing a substance that causes a state of dependence. Does this cover a new version of Diet Coke or chewing gum? The bill introduces an offence of importing a substance that significantly changes motor function. Does this cover a new version of Red Bull or Dencorub?

The bill also introduces an offence of importing a substance that significantly changes thinking, behaviour, perception, awareness or mood. Does this cover a new copper cream to relieve the pain of arthritis or a new pheromone perfume? Does it cover a new drink that is as refreshing as a snowball in the face from a sexy person?

The bill bans substances that you smell, put on your skin, eat or drink. There is an exemption for substances that are already explicitly banned or allowed but only if nothing else is added and a defendant provides that an exemption applies. Nowhere in these provisions is the law limited to substances that cause harm. The concept of harm is completely absent from this law.

So rather than ban new substances that are shown to be or are likely to be harmful, the government is attempting to ban everything unless a bureaucrat has got around to providing an exemption. This approach could impose great uncertainty and stifle business innovation. If unreasonable bureaucrats do not like your harmless product the law is on their side, not yours. This approach also discourages bureaucrats from promptly assessing new substances. Overall, it represents the government kowtowing to the demands of lazy bureaucrats so, in the end, citizens serve the public service.

The coalition and Labor support this bill. They want to authorise police misconduct, attack the independence of the courts and double down on the war on drugs. The Liberal Democrats stand against this march towards a police state. After the next election it is my aim to ensure there are more Liberal Democrats to stand against this folly.

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

I rise today to speak in support of the government's Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. It is an important bill that strengthens and updates our criminal law so that those who do harm through violence and drugs are brought to justice and so there is adequate deterrence for those who may seek to commit such crimes in the future.

The bill comprises six schedules. Schedule 1 will amend the Criminal Code and Customs Act to strengthen the Commonwealth's ability to respond to new and emerging illicit drugs, known as psychoactive substances. Schedule 2 will amend the Criminal Code and the Customs Act to implement tougher penalties for gun related crime. Schedule 3 will amend the International Transfer of Prisoners Act 1997 to streamline the process and remove unnecessary administrative burdens. Schedule 4 amends the Criminal Code to clarify that slavery offences have universal jurisdiction. This aligns with principles under international law. Schedule 5 will ensure the Australian Federal Police have access to Commonwealth investigatory powers at certain airports between the repeal of old regulations and the passage of new regulations. Schedule 6 will make minor and technical amendments to clarify that information obtained under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 can be shared by the ATO, in particular with a taxpayer about whom the information relates. The amendments will also allow AUSTRAC to share financial intelligence information with IBAC.

I would like to focus particularly on the provision regarding psychoactive substances and on the amendments that deal with gun related crime. The new psychoactive substances are designed to mimic the psychoactive effect of illicit drugs. However, their chemical structures are not captured by existing controls on those drugs. Synthetic psychoactive substances can pose as serious a risk to the community as traditional illicit drugs, as we have seen through he tragic deaths of many young people across Australia. New psychoactive substances have been a growing problem for governments in Australia and overseas in recent years. Governments progressively ban these substances as evidence about their use and harm becomes available, yet manufacturers can alter the composition of these substances to avoid the law.

To address this serious community safety issue, the Commonwealth government has introduced this legislation to ban the importation of psychoactive substances, unless they have a legitimate use. These legislative changes will put us ahead of criminals. The ban will close the loophole that allows people to deliberately avoid prosecution by slightly changing the chemical structure of banned substances. The bill will introduce offences into the Criminal Code to ban the importation of substances, based on their psychoactive effect, and where they are presented as alternatives to illicit drugs. It will also amend the Customs Act to allow the officers of the Australian Customs and Border Protection Service and the Australian Federal Police to stop these drugs, seize them and destroy them before they can be put on the market. It will be up to a person whose goods have been seized on suspicion of being a new psychoactive substance to show why they should be returned to them—that is, by showing that they have a legitimate use, such as for foods or as medicinal, industrial, agricultural and veterinary chemicals. This approach will operate alongside existing serious drug offences. It will reduce the availability of potentially harmful new substances, giving authorities time to place appropriate control around them.

Might I say that I have listened to the arguments of those who would like to liberalise drugs in this country and I simply disagree with them. Those who argue that that is about personal freedoms I think ignore the serious social impacts, particularly on our young people—the serious health and other impacts of drug use, particularly on our young people. They ignore the fact that this does not just impact on those individuals who are drawn into these things. It often impacts on those around them. It impacts on their families and in some cases it impacts on other members of the community, where they are drugs that may cause violence or may lead people into crime. So, when we are talking about regulating drugs or psychoactive substances let's not pretend that this is somehow all about personal freedoms. It is also about the protection of our community and it is particularly about the protection of our young people and our children. It is something I am very committed to, and I know the government is very committed to it.

On the firearms amendments, in the lead-up to the 2013 election the coalition undertook to implement tougher penalties for gun related crime. We are following through on that promise by creating a more comprehensive set of offences and penalties for the trafficking of firearms and firearm parts.

In 2012 firearms were identified as being the type of weapon used in 25 per cent of homicides in Australia. Currently, criminals could potentially evade firearms trafficking offences and penalties by breaking firearms down and trafficking their parts. This bill will close this gap by enabling convictions for trafficking those parts. To prevent this the bill creates a new offence for trafficking firearms and firearm parts into and out of Australia, and extends the existing offences of cross-border disposal or acquisition of a firearm, and the taking or sending of a firearm across borders within Australia, to include firearm parts. We know that under the legislation personal protection is not considered a reason to own any kind of firearm.

Data from the Australian Bureau of Statistics and the Australian Institute of Criminology supports the view that firearm reforms have helped to reduce firearm misuse. Since the firearm reforms in 1996 there has been a significant decrease in firearm homicides and suicides. Firearm homicides are down from 99 victims and 32 per cent of all murder victims in 1996 to 47 victims and 19 per cent of all murder victims in 2013. Surely that is something we should be very pleased about as a nation. The rate of firearm suicides decreased in Australia after the introduction of tighter ownership controls. It is therefore vital that we continue to ensure the trafficking of firearms is outlawed and serious penalties are applied.

The introduction of mandatory minimum sentences of five years imprisonment for firearms trafficking offences is an important aspect of the government's strategy to stop illegal guns and drugs at the border. The introduction of the penalty was part of a suite of election commitments made in the government's policy to tackle crime, in which we detailed a range of measures to support our approach to eliminating these types of crimes. The government regards firearms trafficking as being amongst the most serious of crimes, particularly given its ability to facilitate violent and potentially deadly criminal acts. One only needs to look at what we have seen in recent years in parts of Western Sydney, with some of the wars between rival gangs, to see that in some areas of our country this has unfortunately become all too common. The government therefore believes that mandatory minimum sentences are necessary and will act as a strong deterrent to those who would otherwise engage in illicit firearms trafficking.

The bill introduces mandatory minimum sentences of five years imprisonment for offenders charged with trafficking firearms or firearm parts. The minimum mandatory sentence will not, however, apply to minors. The introduction of even a small number of firearms or firearms parts into the illicit market can have a significant impact on the community. This provision aims to ensure that offenders receive sentences proportionate to the seriousness of their offending. The government believes that mandatory minimum sentences will act as a strong deterrent for those who would otherwise engage in illicit firearms trafficking.

Debate adjourned.