Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026
Senator SHOEBRIDGE (New South Wales) (13:17): 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?
The ACTING DEPUTY PRESIDENT ( Senator Blyth ): Thank you, Senator Shoebridge. We've now hit 1.30, so we will move to two-minute statements.