Ian Macdonald (Queensland, Liberal Party) Share 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.