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

by leave—I move items (1) to (17) on sheet 8193, revised, together:

(1) Schedule 1, item 23, page 12 (line 24) to page 13 (line 3), subsection 8(2) to be opposed.

[strict liability offences]

(2) Schedule 1, item 23, page 13 (lines 10 to 14) , subsection 8(4) to be opposed.

[strict liability offences]

(3) Schedule 1, item 23, page 14 (lines 2 to 9), subsection 8A(2) to be opposed.

[strict liability offences]

(4) Schedule 1, item 23, page 14 (line 11), omit "or (2)".

[strict liability offences]

(5) Schedule 1, item 23, page 15 (lines 1 to 13), subsection 9(2) to be opposed.

[strict liability offences]

(6) Schedule 1, item 23, page 15 (line 31) to page 16 (line 11), subsection 9(4) to be opposed.

[strict liability offences]

(7) Schedule 1, item 2, page 16 (line 12), omit "or (4)".

[strict liability offences]

(8) Schedule 1, item 23, page 17 (lines 1 to 16), subsection 9(7) to be opposed.

[strict liability offences]

(9) Schedule 1, item 24, page 18 (line 4), omit "120", substitute "60".

[civil penalties]

(10) Schedule 1, item 24, page 18 (line 9), omit "120", substitute "60".

[civil penalties]

(11) Schedule 1, item 24, page 18 (line 17), omit "120", substitute "60".

[civil penalties]

(12) Schedule 1, item 24 , page 19 (line 5), omit "120", substitute "60".

[civil penalties]

(13) Schedule 1, item 24 , page 19 (line 20), omit "120", substitute "60".

[civil penalties]

(14) Schedule 1, item 24, page 20 (line 8), omit "120", substitute "60".

[civil penalties]

(15) Schedule 1, item 27, page 31 (line 3), omit "of strict liability".

[strict liability offences]

(16) Schedule 1, item 37, page 35 (line 24), omit "of strict liability".

[strict liability offences]

(17) Schedule 1, item 37, page 37 (line 22), after "individual in", insert "civil proceedings or".

[self-incrimination]

These are amendments to the Imported Food Control Amendment Bill 2017. Items (1) to (8) oppose new strict liability criminal offences punishable by fines of up to $12,600 for importing food that is substandard, poses a risk to human health, is incorrectly labelled or is not approved by way of a food control certificate. Item (15) removes strict liability from a criminal offence of failing to comply with a notice to provide information or documents. Item (16) removes strict liability from a criminal offence of failing to keep records.

Australians want food importers to be responsible and irresponsible food importers to be punished. My amendments ensure this because there will continue to be criminal offences involving intentional or reckless importing of food that is substandard, poses a risk to human health, is incorrectly labelled or is not approved by way of a food control certificate. And there will be new criminal offences for intentionally or recklessly failing to comply with a notice to provide information or documents and for intentionally or recklessly failing to keep and produce records.

Penalties under a number of these offences include up to 10 years imprisonment and a fine of $126,000. But my amendments to remove strict liability from criminal offences will also ensure that food importers who intend no harm and who are not reckless about a risk of harm are not considered to be criminals. This will help encourage responsible food importers to service Australia, to put downward pressure on food prices for Australians and to expand the range of food available. Food importers who intend no harm and who are not reckless about a risk of harm still face penalties if they nonetheless import substandard food, but, under my amendments, these would be civil rather than criminal penalties. And under my amendments, in items (9) to (12), these civil penalties will be capped at a $12,600 fine rather than a $25,200 fine. Strict liability in criminal offences is not a liberal principle that should be allowed. It is contrary to the general basic principles of liberalism and it should not be in legislation brought into this place by a liberal government.

I turn now to the issue of self-incrimination. A provision in the bill establishing a power to require a record to be produced abrogates the principle against self-incrimination through the insertion of an explicit provision stating that a person is not excused from the requirement on the grounds that the 'record might tend to incriminate the person'. Also inserted is the provision stating that the record is not admissible against the individual in criminal proceedings except in criminal proceedings regarding provisions to provide informational documents and provisions regarding the provision of false or misleading information. However, this insertion provides the individual with no protection regarding civil proceedings. My final amendment, item (17), rectifies this by adding a reference to 'civil proceedings' to the reference of 'criminal proceedings'.

The privilege against self-incrimination should be protected because it would hurt us all to know that at any time we could be forced to provide the rope that we will be hanged by. The privilege against self-incrimination can be protected while ensuring that food imports are safe and irresponsible food importers are punished. Any food importer who refuses to provide a document on the grounds that it will tend to incriminate will still be subject to conviction based on other evidence. Food from that importer that poses a risk will be held or destroyed, regardless of whether the importer provides a particular document, and the government will have the discretion to withhold permissions to import for a food importer who refuses to provide documents.

I commend my amendments to the Senate.

Carol Brown (Tasmania, Australian Labor Party, Shadow Minister for Disability and Carers) Share this | Link to this | Hansard source

Labor will not be supporting Senator Leyonhjelm's amendments to the Imported Food Control Amendment Bill 2017. The bill before the Senate is seeking to strengthen the current system, to provide more flexible and targeted ways to prevent and respond to food safety risks, to better protect the health of consumers. Senator Leyonhjelm's amendments seek to omit the term 'strict liability' and to reduce penalty units in the current bill. Labor does not support these amendments and believes that those who undertake the proper procedures for the importation of food products will better protect the health of Australian consumers, and those who commit offences should face tougher penalties.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Greens also will not be supporting Senator Leyonhjelm's amendments. In fact, with regard to the change from strict liability I think that Senator Leyonhjelm is rather misguided if he feels that he needs to do that in order to protect people who intend to do no harm. He only needs to read the Bills Digest that states:

In a criminal law offence the proof of fault is usually a basic requirement. However, offences of strict liability remove the fault (mental) element that would otherwise apply, but the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

Like Senator Leyonhjelm, we don't want to see the punishment of reasonable and honest mistakes, or people who intended no harm, or weren't being reckless, and this will not happen. You don't need to remove strict liability in order for that to happen. But, in contrast, if Senator Leyonhjelm's amendments were adopted then there is a big risk that there would be the unintended consequence of people who were intentionally contravening or disregarding our import laws potentially getting through. His amendments appear to downgrade the illegal importation of potentially high-risk foodstuffs by changing it from a strict liability charge to a civil penalty one. I'm not sure what evidence he has that this wouldn't lead to a mass evasion of our imported food inspection scheme, as it seems to us that the risks of doing this are, indeed, very high.

Richard Colbeck (Tasmania, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

The government does not agree to Senator Leyonhjelm's proposals to amend the bill to remove strict liability provisions and reduce the maximum penalties available to the courts for civil penalties. Such changes would limit the introduction of a graduated enforcement scheme that is intended to increase the accountability of food importers for the safety of imported foods.

Bill agreed to.

Bill reported without amendments; report adopted.