Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

I rise to speak on the Crimes and Other Legislation Amendment (Omnibus No.1) Bill 2026. The coalition will not be opposing this bill; however, we will be moving an amendment to ensure that the expanded extradition arrest powers are subject to the appropriate parliamentary review. We will also be asking some questions, in the committee stage, in relation to schedule 3, relating to the changes to the Director of Public Prosecutions Act 1983.

I also want to put on the record, in addressing the bill, some important concerns not only about what this bill does represent but also, more importantly, for the benefit of the Senate, about what this bill does not represent. This is an omnibus bill. It contains five schedules. Those five schedules make a range of amendments to Commonwealth criminal justice, law enforcement and prosecution legislation. On the face of the bill itself, much of it is technical or procedural in nature, and the coalition accepts that. We accept that a modern parliament must maintain workable, up-to-date frameworks for policing and prosecution. Where these amendments modernise, clarify or improve the law, we support them.

The bill has now been considered by the Senate Legal and Constitutional Affairs Legislation Committee, and coalition senators, in their report, supported the committee's recommendation that the bill be passed. However, coalition senators also placed on the record important concerns—and this is so typical of the Albanese government—about the government's failure to progress comprehensive reform of Australia's electronic surveillance framework; the removal, through this omnibus bill, of the Australian Criminal Intelligence Commission's data disruption warrant powers; and the need for a review of expanded extradition arrest powers. Those issues do deserve careful attention. Why is that? It's because these issues actually go to the heart of ensuring that Australia's national security and law enforcement laws remain effective, proportionate and properly scrutinised.

Schedule 1 itself clarifies Australian Federal Police policing powers at the Western Sydney international airport. It modernises the way warrant applications may be made by allowing electronic and telephone applications in place of cumbersome paper based processes. It also makes sensible technical amendments to ACT policing. These are practical commonsense changes that the coalition, as I said, support.

Schedule 2 changes the way certain serious drug offence thresholds are calculated by moving to a mixed weight approach. This is going to broadly align Commonwealth law with the approach that is now taken in most of the states and territories.

Schedule 3 creates a mechanism for managing conflicts of interest involving the Director of Public Prosecutions. As I said, we will be asking a number of questions in the committee stage just to get some clarification around the changes being made in this schedule.

Schedule 4 itself aligns arrest powers under the Extradition Act 1988 with general Commonwealth arrest powers available under the Crimes Act 1914. Schedule 5 makes a minor consequential amendment to telecommunications interception legislation following changes to Victoria's integrity oversight arrangements.

As I've stated, much of this bill makes sensible and practical improvements. It seeks to remove unnecessary administrative barriers, provide greater consistency across Commonwealth legislation and assist police, prosecutors and law enforcement agencies to perform their important work. The coalition, as outlined in our committee report, support those practical improvements.

But I want to turn to the element of the bill that deserves very careful scrutiny, and that is the extension of Australia's cyber disruption powers. In 2021, the former coalition government introduced the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021. Those reforms recognised a reality that has now, in 2026, become impossible to ignore. Serious organised crime was changing. Criminal enterprises were increasingly operating online. Child exploitation networks—the absolute worst of the worst, the scum of the earth—were hiding behind encrypted platforms. Drug-trafficking syndicates, money-laundering operations and other serious criminal organisations were exploiting sophisticated digital technologies that traditional investigative powers were not designed to address.

Law enforcement agencies needed more than the ability to simply observe serious criminals operating online. They also needed the tool which we gave to them, and that was the ability to disrupt them. That is what the former coalition government delivered. We introduced data disruption warrants, network activity warrants and account takeover warrants. Those powers were designed not merely to monitor serious criminal activity but to intervene, as is required, directly in criminal networks to prevent further occurring and further offending.

Data disruption warrants enable law enforcement agencies to interfere with data used by criminal networks. Network activity warrants assist agencies to identify offenders operating anonymously across complex online environments. Account takeover warrants allow agencies—under, of course, judicial authorisation—to take control of online accounts being used for serious criminal offending.

These were landmark reforms. They gave Australia's law enforcement agencies the tools they needed to confront serious and organised crime in an increasingly online and digital environment. They also ensured that those powers, appropriately, remained subject to judicial authorisation, independent oversight and a sunset clause so that the parliament would be required to revisit their necessity and their operation. Those powers are due to expire now—in September 2026. Part 3 of schedule 1 extends them for a further three years, until 4 September 2029. The coalition supports the continuation of these powers. As I've already stated, they were a landmark achievement of the former, coalition government. We created them because we recognised that they were necessary.

The Independent National Security Legislation Monitor has since undertaken a comprehensive review of the identify and disrupt regime. The independent monitor found that these powers provide effective operational capabilities in circumstances where other powers—bearing in mind what we're talking about here: serious organised crime online—would have been ineffective. The independent monitor recommended that they should not be allowed to sunset. The coalition agrees. Australia's law enforcement agencies should continue to have access to these capabilities.

The threats these powers were designed to address have not disappeared. If anything, they have become more sophisticated. Serious and organised crime continues to adapt. Criminal networks continue to exploit new technologies. Those seeking to harm Australians continue to look for new ways to conceal their activities, frustrate law enforcement and operate across jurisdictions. Our law enforcement and intelligence agencies must have the tools necessary to respond.

But, while the coalition supports extending these powers, the need for this extension exposes a much broader and more serious problem. It exposes the Albanese government's continuing failure to modernise Australia's electronic surveillance network.

The Comprehensive Review of the Legal Framework of the National Intelligence Community described reform of Australia's electronic surveillance laws as becoming more urgent. The government accepted the need for reform. The government then committed to a new, modernised and coherent electronic surveillance framework. Bad news, Australia—that was actually four years ago. Four years after taking office, there is still no comprehensive legislative package. There is still no modern electronic surveillance act. There is still no clear timetable for reform. Instead, what is the government doing? They're asking the parliament to extend a sunset clause. But why? Because the government has failed yet again to complete the broader legislative work that we so desperately need.

The bill keeps important powers alive, but it also tells a story. It tells the story of a government that has had over four years to modernise Australia's electronic surveillance laws, but it has failed to do so: great on the headline; shocking on the substance. This is a temporary measure now made necessary because the government has failed to deliver the reform it promised. National security reform cannot be allowed to simply drift from one sunset extension to the next whilst governments postpone the difficult work to comprehensively initiate legislative reform.

Technology continues to evolve; that is a fact. The threat environment continues to evolve; that is a fact. The measures used by serious and organised crime continue to evolve. Our laws, therefore, must evolve with them. Australia's intelligence agencies, quite frankly, deserve better; our law enforcement agencies, quite frankly, deserve better; and Australians deserve confidence that the laws protecting them are being modernised before a deadline arrives, not after. Comprehensive reform of Australia's electronic surveillance framework should now be an immediate priority for the government.

The second issue of concern that was highlighted in the coalition senators' additional comments in the inquiry report concerns the Australian Criminal Intelligence Commission. Part 3 of schedule 1 does more than just extend Australia's cyber disruption powers. It also removes the ACIC's ability to apply for data disruption warrants. We accept the government's broader policy objective of refocusing the ACIC as a dedicated criminal intelligence agency responsible for the collection, analysis and dissemination of intelligence relating to serious and organised crime. Our concern is not simply the policy direction. Our concern is the legislative vehicle the government has chosen and the level of scrutiny that this significant change will receive. The removal of the ACIC's ability to apply for data disruption warrants is not a minor or incidental amendment. Data disruption warrants enable law enforcement agencies to interfere directly with data used by serious and organised criminals. They can be used to disrupt criminal communications, degrade criminal platforms, interfere with information central to criminal operations and undermine the ability of criminal networks to operate effectively. Removing the capability from the ACIC is a significant change to their powers and their functions et cetera.

At the same time, we have the Australian Criminal Intelligence Commission Bill 2026 before the parliament. What is that bill going to do? Its intention is to establish a modern legislative framework for the ACIC, to give effect to its new proposed intelligence focused role. It has been referred appropriately to the PJCIS for scrutiny. This is our specialist parliamentary committee for scrutiny of intelligence and national security legislation. It is appropriate for PJCIS to consider this power.

The coalition has been clear. We therefore consider that the removal of the ACIC's data disruption warrant powers should be dealt with through the Australian Criminal Intelligence Commission Bill 2026. That would allow this change to be considered as part of the broader reform of the ACIC's role and functions. It would also ensure that the PJCIS gives the change the appropriate scrutiny it needs. Accordingly, as I've already noted, the opposition will be moving an amendment on sheet 3825 standing in my name to this effect:

At the end of the motion, add ", but the Senate:

(a) notes that Part 3 of Schedule 1 to the bill removes the ability of the Australian Criminal Intelligence Commission to apply for data disruption warrants;

(b) further notes that the Australian Criminal Intelligence Commission Bill 2026 is currently before the Parliament and is the appropriate legislative vehicle for considering significant changes to the powers, functions and operational capabilities of the Australian Criminal Intelligence Commission;

(c) considers that the removal of the Australian Criminal Intelligence Commission's data disruption warrant powers should be considered as part of the Australian Criminal Intelligence Commission Bill 2026, to enable appropriate scrutiny by the Parliamentary Joint Committee on Intelligence and Security; and

(d) calls on the Government to incorporate Part 3 of Schedule 1 into the Australian Criminal Intelligence Commission Bill 2026".

This actually improves the legislation. Why? Because changes of this significance should not be bundled into an omnibus bill containing largely technical and procedural amendments.

As I've already stated, there are a number of other issues that we will be pursuing in the committee stage. We are, as I've also stated, broadly in support of this bill. But there are some issues that do need to be interrogated further. Some amendments do need to be made. At the same time, as I've said, we again firmly place on the record our concern that after almost four years of taking office—in fact, as I've said, it's actually in excess of four years—the Albanese government has still failed to deliver the comprehensive reform of Australia's electronic surveillance laws that is so desperately needed and that has indeed been recommended.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

The Greens have significant concerns with the Crimes and Other Legislation Amendment (Omnibus No.1) Bill 2026 and will be seeking to amend it in committee. I want to be clear that if those amendments don't succeed, we'll be opposing it on the third read.

This is an omnibus bill. You don't get to use the word 'omnibus' much, other than in the Senate; it's nice that we haven't lost that word. It's a big bill amending seven separate acts and full of different things, from AFP move-on powers and a new major airport—which is designed to give those powers at the new Sydney west airport at Badgerys—to surveillance warrants, drug offence evidentiary rules, DPP conflict-of-interest provisions and extradition powers. They're all the things you could fit in a big bus!

Two schedules are of most concern to the Greens. They are the schedules in relation to the drug offence evidentiary changes and the surveillance warrants sunset extension. As always, for oppressive, powerful and secret state powers, the sun never seems to set on them. I'll deal with each of those in turn and then flag the amendments that the Greens will be moving.

The bill makes two substantive changes to how Commonwealth drug laws are prosecuted. The first is a new evidentiary certificate regime, and the second is a shift from the traditional purity-based offences to what's called a gross weight—or an admixture method—for assessing drug quantities.

I'll deal first with the evidentiary certificates. These proposals propose to remove the requirement for there to be individual witness statements on chain-of-custody matters. Traditionally in Commonwealth proceedings, so that a defendant could be sure about the alleged material which is said to have been in their possession or which they may have been otherwise involved with, there was a requirement for witness statements to identify where the material, often drugs, was found; who they handed it to; how it got to the lab; where it was tested in the lab; and how that then supports the finding from the lab that a particular amount of drugs was found in a particular period. That chain of evidence is, of course, critical if the courts are to have confidence that the allegations about the nature and the quantity of the drugs are actually well founded.

National Legal Aid has flagged the practical consequences of removing that chain-of-custody evidence and instead replacing it with a simple certificate that alleges, on the side of the police and the prosecution, that chain-of-custody requirements have been met but with no proof, no witness statements and nothing to be tested by a defendant. National Legal Aid flagged the practical consequence of this, which is that defence practitioners lose that early visibility of problems—and they do happen—like improper storage or contamination risk because they will no longer have that documented until the matter goes to trial and only then if they pick it up and demand that the chain-of-custody evidence be given.

I want to be clear that this has historically been a significant problem. Police in my home state of New South Wales have often had appalling records for where they store drugs that had been seized. There was a point about a decade ago in New South Wales where police station safes were full of deteriorating bags of drugs that had been seized and there was poor evidentiary holding. In one police station in central Sydney, they had an underground walk-in safe that, when you opened the door, literally could floor police officers from the smells and the fumes from drugs that had been in bags that had deteriorated. Officers' health was at serious risk going into those rooms. Of course, when that happens, evidence about chain of custody, what drugs there are, what drugs are actually relevant to which particular criminal proceedings and the purity and the quantity of them becomes very murky. That is why there is insistence, traditionally, on chain-of-custody evidence.

If that chain-of-custody evidence is removed, National Legal Aid has said, that potentially puts a significant cost impact on defendants in a system where legal aid is already incredibly stretched. It will potentially see significant flaws in the prosecution case not being identified. It will fall hardest, National Legal Aid tell us, on people who already have the least resources to identify and contest deficiencies in evidence against them. On the other side, of course, is the AFP, who simply say: 'We'd like this to be simpler. We'd like it to be cheaper, quicker and simpler. We'd just like to issue a certificate rather than actually persuade the court about where and how the drugs found their way into police possession and how they got to the lab.' The Greens believe that the concerns raised by National Legal Aid, and I think also by the Law Council of Australia, should be listened to and those parts of the bill should not be supported.

The second element is the gross weight or admixture approach. Moving away from the purity based assessments when they're determining the quantity of drugs that have been seized means that the weight of cutting agents, concealment materials or any other substance that gets mixed into drugs will be counted as if it were the drug itself. In some of the submissions we saw the potential that somebody may have drums that had been contaminated by drugs on a previous occasion. They may have had no knowledge that the drums had contained drugs. They may have had no knowledge about the contamination. They may then store a benign material in it—some flour or some beans or some other material. If that benign, legal material were tainted by the drugs from the earlier storage then, under these laws, anyone who was in possession of that or sold that could potentially face criminal prosecution for very serious drug possession and/or commercial trade offences. That's been raised clearly by National Legal Aid and by the Law Council.

It might just be useful to hear directly what National Legal Aid said about this. I'll just read from paragraphs 2.27 to 2.29 in the report:

However, NLA submitted that the purity-based system for measuring border-controlled drugs should be retained and expressed concern that the 'proposed approach risks arbitrary outcomes, particularly where concealment materials or low purity substances inflate weight' …

Then there's another quote from National Legal Aid:

NLA is concerned that a shift to gross-weight measurement will disproportionately affect lower-level participants in drug supply chains, including mules, runners and others at the bottom of criminal enterprises, who are more likely to handle substances of lower purity and who make up the majority of legal aid clients in Commonwealth drug matters. Some accused may face significantly higher maximum penalties on the same factual basis as a result of the change.

Paragraph 2.28 in the report says:

In addition, NLA argued that, should a mixture-quantity model be adopted, there should be 'a review of thresholds and the explicit preservation of purity as a mitigating factor to protect fair trial rights, ensure accurate sentencing, and avoid disproportionate punishment without demonstrable deterrent benefit'.

None of that is contained in this bill. So what this is doing is substantially increasing the penalties under Commonwealth drug laws for exactly the same offending material that's happening today, without any clear justification other than that the police don't like going to the expense and the cost of actually checking the purity of the drugs. There is no justification for doing this other than the administrative convenience of the police.

The Law Council of Australia also identified a number of concerns with the changes, including about whether or not absolute liability elements about quantity should be included in the Criminal Code. They said this:

We are concerned that, by changing the method for calculating the quantity of prohibited substance, consideration needs to be given to introducing a fault element to quantity elements or shifting these elements to strict liability elements, to admit of the possibility that mistakes of fact might be materially relevant to the conduct in question.

That's exactly the concern that somebody may have innocently, as in the example that was given, purchased some barrels that may have been contaminated, unbeknown to them, by previous storage of drugs. They store another material in those barrels, and then, under these strict liability provisions, they could find themselves going to jail for an extremely long period of time for serious commercial drug-dealing offences. Again, there's no explanation for this.

National Legal Aid's evidence here is blunt on who these changes will catch—not the big drug dealers or the Colombian or bikie gang criminal cartel element but the mules and the runners, those at the bottom of the supply chains, who are often addicts themselves and who have the least agency in this space. Is that what we want to do—pass laws to put people who are the most vulnerable in jail for even longer periods of time, for exactly the same conduct that they're doing now? If you really wanted to dismantle these criminal drug-dealing cartels, the worst place you can look is the mules and the runners, the people right at the bottom, often carrying low-purity products, who make up the majority, in this case, of National Legal Aid's clients in drug matters. This isn't a bill that will touch the organisers and profiteers at the top of these operations, and it's not designed to. It's just designed to make those lower level prosecutions more serious and easier for the police. That is not going to keep us safer.

This matters because at least 23 offences in part 9.1 of the Criminal Code carry these absolute liability elements tied to drug quantity and, under an absolute liability offence, the prosecution doesn't even have to prove any mental element about the quantity. Critically, the defence of honest and reasonable mistake is not available. If you combine that with a gross weight approach, you will get people facing more serious absolute liability thresholds because of the weight of a mixture they had no knowledge of, and, under the law as it would stand, they would have no defence and no ability to explain what they knew and why they found themselves there.

The Law Council's submission to this bill is clear that, on both the evidentiary certificate framework and on this admixture element, it should not proceed. That is why the Greens will be moving amendments to seek to remove those schedules from the bill. Could I quickly address the surveillance warrant sunset extension proposal?

Leah Blyth (SA, Liberal Party, Shadow Assistant Minister for Defence Infrastructure) | Link to this | Hansard source

Thank you, Senator Shoebridge. We've now hit 1.30, so we will move to two-minute statements.