Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026

Senator McKIM (Tasmania—Australian Greens Whip) (12:42): I appreciate that we are on the amendment that's just been detailed by the Chair for the chamber, but I do want to just take this opportunity to raise concerns that I have and that the Greens have around some of the provisions in this legislation. The bill makes two substantive changes to Commonwealth drug law.

It creates a new evidentiary certificate regime and it shifts from a purity based method to a gross weight method for assessing drug quantities. It's the second of those changes that I want to raise some concerns about at this stage. In lay terms, what this provision does is to provide for the weight of cutting agents to be counted as if those cutting agents were the drug itself.

So, for the avoidance of doubt, here you have a quantity of a particular drug, and, at the moment, the quantity of the drug is the determinant in the assessment made. If these changes were to go through, it would be the case that it would not only be the drug itself but also the cutting agents, concealment materials or any other substance that would be assessed as the quantity of the drug is determined.

Now, let's be very clear about who this is going to disadvantage. This is going to disadvantage people at the bottom of supply chains. This is going to disadvantage people who are more likely to be possessing low-quality products.

This is not going to disadvantage the people at the top of the chain, the people that are running organised crime, for example. This is going to overwhelmingly disadvantage people who may have health or addiction issues, people who are desperate for money, people from lower socioeconomic backgrounds. This is not a bill that's going to touch the organisers and profiteers at the top of drug operations.

It's a bill that seeks to inflate the apparent seriousness of what low-level, often vulnerable people are caught with. My question to the minister is: why is a Labor government doing this? It's fundamentally unfair that you want to include things like cutting agents when you determine the quantity of a particular drug that someone might have.

That is just fundamentally unfair. If someone's cut a drug—I don't know what they cut it with; washing powder or whatever it might be—why would you want that washing powder to be included when you determine the quantity of the drug? Washing powder is not a drug; you can go to the supermarket and buy it.

I don't know what cutting agents people use, but I'll just leave that as an observation, as an example. I do want to take this chance, while I'm on my feet, to explain why this matters. There are a number of offences in part 9.1 of the Criminal Code which carry absolute liability elements tied to drug quantity.

I understand there are at least 23 offences in part 9.1 of the Criminal Code that do carry absolute liability elements. Under an absolute liability offence, the prosecution does not have to prove any mental element about the quantity, and, critically, the defence of honest and reasonable mistake of fact is not available. This has ramifications for how our legal processes and our judicial processes work.

Combine those matters with a gross weight approach, which is being proposed by this legislation, and you get people facing more serious absolute liability thresholds because of the weight of a mixture they had no real knowledge of and, under the law as it would stand, no defence to explain. Let's be clear. The defence of honest and reasonable mistake will be available to fewer people because of these provisions.

The Law Council of Australia's submission to the inquiry into this bill said—sorry, I'll withdraw that. I'll go to evidentiary certificates quickly, while I'm on my feet. Evidentiary certificates remove the requirement for individual written witness statements on chain of custody matters.

Chain of custody is critical in legal cases because courts and juries, if juries are empanelled, need to be satisfied that the physical evidence that is being tendered has not been interfered with or manipulated on the way through the system. The changes that are proposed are to remove the requirement for individual written witness statements on chain of custody matters.

National Legal Aid has flagged the practical consequences, which are that defence practitioners lose early visibility of problems like improper storage or contamination risk, because those issues no longer have to be documented until they surface at trial. This is an access-to-justice cost and, again, it falls hardest on people who already have the least resources to identify and contest deficiencies in the evidence against them.

The Law Council's submission to the inquiry said that the evidentiary certificate framework should not proceed in its current form and that, if it does, the bill should be amended so that it applies only to continuity of handling evidence, not as a broader substitute for proper witness evidence. In the last minute or two that I have available for this contribution, I just want to take a step back and engage in a bit of a helicopter view about the kinds of amendments that we regularly see in this place.

I offer the observation that these are almost always supported in a bipartisan way by the parties of government in this place, and I yearn for the day when that descriptor applies to more than just the Labor Party and the coalition. What we have been seeing in this country over many, many decades is the fundamental erosion of civil liberties in Australia. This has been delivered by Labor governments and it's been delivered by coalition governments.

There have been hundreds of pieces of legislation just in the last couple of decades that erode the fundamental rights and freedoms that, back in the day, people, including ancestors of mine, fought and died for. We're just handing them away willy-nilly, because the security complex in this country demands ever more power, and ever more opportunities to surveil and ever more opportunities to control people's lives.

I will leave thoughts on the role that the Parliamentary Joint Committee on Intelligence and Security plays in that ongoing erosion of rights and freedoms until another opportunity, but it is time that we stopped eroding fundamental rights and freedoms in this country, which is something that this legislation does.