House debates

Monday, 24 November 2014

Bills

Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014; Second Reading

1:13 pm

Photo of David FeeneyDavid Feeney (Batman, Australian Labor Party, Shadow Minister for Justice) Share this | | Hansard source

I rise to speak on the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. The bill contains a range of measures to improve Commonwealth criminal justice arrangements. Once again, the Abbott government is busy implementing Labor reforms to disguise the fact that it comes to this parliament with a pitiful legislative agenda of its own. Nonetheless, I commend the government on bringing this bill before the House and building on the work that the former Labor government did in this very important public policy area.

The opposition supports the intent of this bill, and that intent includes amendments to ban the importation of all substances that have a psychoactive effect that are not otherwise regulated or banned; to ensure that Australian Customs and Border Protection officers have appropriate powers to stop these substances at the border; 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; to introduce new international firearms trafficking offences amending existing cross-border firearms offences; to streamline the international transfer of prisoners regime within Australia and to clarify the processes therein involved; to amend certain slavery offences and to clarify they have universal jurisdiction; and, finally, to validate access by the Australian Federal Police, the AFP, to certain investigatory powers in designated state airports.

The bill comprises six schedules. Schedule 1 of the bill will implement amendments that have been under development for some time and were first announced by the former Labor government in June 2013. It represents the Commonwealth legislative component of a broader national response to new psychoactive substances developed by the Intergovernmental Committee on Drugs—the IGCD—and endorsed by 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 also incorporate a reverse onus component, those being in New Zealand and in Ireland. The scheme proposed in this bill is similar to that used in Ireland. Schedule 1 will amend the Criminal Code Act 1995 and Customs Act 1901 to strengthen the Commonwealth's ability to respond to new and emerging illicit drugs, also known as new psychoactive substances. New psychoactive substances are designed to mimic the psychoactive effects of known illicit drugs, but their chemical compositions are not captured by existing controls on those drugs. There is evidence that manufacturers design the chemical structures of psychoactive substances to avoid those controls and prohibitions. As we know, sadly, crime is an adaptive adversary, and our legislative regime must be constantly adaptive to fighting crime. This is why this bill is so important, because time and time again we see manufacturers of illegal psychoactive substances changing the formula and changing the structure of their drugs so as to avoid and evade law enforcement. This bill will go a long way to making sure that that dreadful game comes to an end.

The amendments in Schedule 1 will fill the regulatory gap between when psychoactive substances first appear and when they are controlled under other parts of the Criminal Code or under the prohibited imports regulations. They will ensure that new psychoactive substances cannot be imported while the government assesses their harms and considers the appropriate controls to place upon them. The measure takes a precautionary approach to dealing with psychoactive substances. This is intended to work in parallel with and not to replace any of the existing schemes which regulate the importation of both illicit drugs and substances with a legitimate use into Australia.

Schedule 1 will, firstly, introduce an offence into the code for importing a psychoactive substance that does not have a legitimate use or which is not already prohibited. Secondly, it will introduce an offence into the code of importing a substance where its presentation contains a representation that it has the same effects as or substantially similar effects to a serious drug or that it is a lawful alternative to a serious drug. Thirdly, it will amend the Customs Act to allow the Customs and Border Protection Service and Australian Federal Police officers to exercise appropriate administrative powers to search for, to detain, to seize and even to destroy substances that are prohibited under the new offences in the Criminal Code.

The rationale for restricting NPS is the same that applies to other drugs: to reduce the harms that are associated with them. NPS are often marketed as legal highs, and they can often be found professionally packaged, which may give citizens the impression that they are safer to use than illicit drugs with similar effects. But very little is known about their health impacts, most particularly their longer term impacts.

Schedule 2 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 Amendment (Organised Crime and Other Measures) Bill 2012, which, again, is a piece of legislation introduced into this place by the former Labor government but which lapsed ahead of the 2013 federal election. Schedule 2 will create new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia—the new division 361 of the code. It will extend the existing offences of cross-border disposal or acquisition of a firearm and the taking or sending of a firearm across borders within Australia, and it will 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.

Mandatory minimum sentences are uncommon in Australian law. The maximum penalty in legislation introduced by the previous Labor government, which, as I said, lapsed upon the dissolution of the House of Representatives prior to the last election, was life imprisonment. This is not uncommon for such a serious offence. As foreshadowed in the comments in the Senate Legal and Constitutional Affairs Legislation Committee Report, Labor has concerns about the introduction of a mandatory minimum sentencing regime and will have more to say during consideration in detail.

Schedule 3 will amend the International Transfer of Prisoners Act 1997—the ITP Act—which governs Australia's International Transfer of Prisoners scheme. The ITP scheme aims to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country insofar as it is possible. This is a voluntary scheme, and it requires the consent of the prisoner, the Australian Attorney-General, the relevant transfer country and, where applicable, the relevant Australian state or territory to or from which the prisoner wishes to transfer.

Since the ITP scheme has been in place, it has become clear that improvements to the Act are required to clarify and streamline the process, to make the scheme more straightforward, to operate more efficiently and to reduce unnecessary burdens on the resources required to process ITP applications. The amendments in this schedule seek to address those issues, with the effect being timelier processing of applications, a reduced resource burden and improved usability of the legislation by prisoners, while still maintaining due process and prisoners' rights.

The amendments in Schedule 3 will achieve a number of objectives. They will remove the requirement for the Attorney-General to make a final decision where a transfer cannot proceed due to an application not meeting all requirements under the ITP Act. It will impose a one-year time limit on reapplications from prisoners whose applications are refused or who have withdrawn their applications. It will clarify that prisoners with suspended sentences may be transferred under the ITP scheme. It will clarify that a prisoner who wishes to transfer to Australia may apply for transfer either to the country in which they are serving their sentence or directly to Australia. It will clarify that the date upon which the assessment of dual criminality is based is the date the application for transfer is received. It will clarify that the definition of 'joint prisoner' includes a prisoner who was convicted in one or more Australian states or territories. It will clarify that the option of writing to a transfer country to advice that the Attorney-General's consent will be given if a variation were made to the terms of transfer is a discretionary rather than a mandatory requirement. It will broaden the definition of 'prisoner's representative' to include a close family member of the prisoner, and it will remove references to prescribed application forms. It will clarify that the option of writing to a transfer country to advise that the Attorney-General's consent will be given if a variation were made to the terms of transfer is a discretionary, rather than a mandatory, requirement. It will broaden the definition of 'prisoner's representative' to include a close family member of a prisoner, and it will remove references to prescribed application forms.

Schedule 4 amends the code to clarify that the slavery offences in section 270.3 have universal jurisdiction. This approach accords with the prohibition of slavery as a jus cogens (peremptory) norm of customary international law—meaning that it is non-derogable and applies at all times and in all circumstances—and one that 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 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. This 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, the Financial Transaction Reports Act 1988 (FTR Act) and 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 has also been made to the Surveillance Devices Act 2004 to remove a reference to an offence against a repealed section of that 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 largely duplicated the safeguards already found in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

In addition, schedule 6 will make minor amendments to division 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 division 301.11 was inserted into the code in November 2012 by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012.

On that basis Labor supports this legislation. We will have more to say during consideration in detail about the proposed regime concerning mandatory minimum sentencing. But of course it will be no surprise that, in the main, Labor supports this legislation—because we wrote it.

1:25 pm

Photo of Melissa PriceMelissa Price (Durack, Liberal Party) Share this | | Hansard source

I am pleased to rise to speak on this bill, the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, and about an issue which is, sadly, very important within my large electorate of Durack and in all communities throughout Australia. This bill amends a series of acts including the Criminal Code Act 1995, the Customs Act 1901 and the Surveillance Devices Act 2004. The bill contains a range of measures to improve Commonwealth criminal justice arrangements, including the following three: banning the importation of substances that have a psychoactive effect but are not otherwise regulated or banned; ensuring that Australian Customs and Border Protection Service officers have appropriate powers to stop these substances at the borders; and validating access by the Australian Federal Police to certain investigative powers in designated state airports.

While the bill comprises six schedules, I want to focus today on schedule 1, which will amend the Criminal Code Act and the Customs Act to strengthen the Commonwealth's ability to respond to new and emerging illicit drugs, known as new psychoactive substances. These so-called synthetic drugs are designed to mimic the effect of illicit drugs, but their chemical compositions are not captured by existing controls on these drugs. Effectively, what we are talking about is the new ice. There is evidence that manufacturers design the chemical structures of new psychoactive substances to avoid current controls and prohibitions. The amendments in schedule 1 will fill the regulatory gap. They will ensure that new psychoactive substances cannot be imported while the government assesses their harm and considers the appropriate controls to place on them. The measure takes a precautionary approach to dealing with psychoactive substances. It is intended not to replace but to work in parallel with the existing arrangements which regulate the importation of both illicit drugs and substances with a legitimate use into Australia.

The largest urban centre in my electorate is Geraldton, with a population edging on 40,000 people. Too many of its residents suffer from alcohol misuse or from the harm arising from illicit drug use and its associated impacts, including harm to mental health and crime. I am advised by some working in the drug and alcohol services industry that the culture around alcohol in Geraldton is ridiculous. They cited an anecdote about a bouncer, recently seen sprawled on his back across the bar and being fed alcohol through a hose. There are pockets of amphetamine use—drugs such as speed or ice—together with a proportion of new psychoactive substances. These are causing serious issues because they simply cannot be tested at present.

Let us talk about the notions of responsibility and acceptance. Personal harm associated with the use of drugs is considered to be high. In comparison, related crimes such as road accidents and domestic violence are more strongly linked to alcohol abuse. In general, there is an acceptance by those who are extreme drinkers or amphetamine users of substance use and abuse and its impacts—and the acceptance of this use and abuse and its impacts plays an essential role in these people's ongoing substance abuse. But there is an expectation that the police, drug and alcohol agencies will somehow fix the problem, rather than users taking personal responsibility for their own actions and behaviours.

We know that one woman each week in Australia dies from domestic violence. This is clearly not acceptable. I would like to pause for a moment to recognise White Ribbon Day, which is tomorrow 25 November. White Ribbon Day is the international day for the elimination of violence against women and a day when we must stand against domestic violence. This is a community-wide issue in my electorate of Durack. Violence against women and children and much of this harm is fuelled by drug and alcohol abuse.

Photo of Ross VastaRoss Vasta (Bonner, Liberal Party) Share this | | Hansard source

Order! In accordance with standing order 43, the time for members’ statements has concluded. The debate may be resumed at a later hour and the member will have leave to continue her remarks when the debate is resumed.