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

Senator McKIM (Tasmania—Australian Greens Whip) (19:05): I note, Chair, your previous advice to the chamber that the amendments that are standing in the name of the Australian Greens on sheet 3791 are in conflict with amendments moved by the One Nation party on sheet 3897, which are unable to be determined at the moment because we are in a period in which the Senate has previously agreed that no divisions should occur.

I want to be very clear that I do understand that. I also acknowledge that I raised some of the matters that are addressed, or that the amendments moved by the Australian Greens seek to address. I, again, thank the minister, who's the same minister who has the unfortunate short straw here today in relation to her chamber duty.

I thank the minister for her responses to those concerns that I raised, and I acknowledge that she did, indeed, respond to a number of those concerns. In general terms, I want to, again, restate some of the concerns that are held by the Australian Greens about this legislation, specifically the changes to serious drug offences. I did say last week that I do understand that Commonwealth law, as it applies to serious drug offences, falls in a different area to state or territory law.

However, the principles of natural justice ought to apply, whether or not we are dealing with Commonwealth law, state law or, indeed, territory law. I want to place on the record that the Greens believe that moving away from a purity based assessment is contrary to the principles of natural justice. Moving away from a purity based assessment means that the weight of cutting agents, concealment materials or any other substance that might be in the mixture get counted as if they were the drug itself.

Cutting agents, concealment materials or any other substances that are cut into drugs are not the drugs themselves. This matters because there are absolute liability elements tied to drug quantity. Under an absolute liability offence, the prosecution doesn't have to prove any mental element about the quantity.

Critically, the defence of honest and reasonable mistake of fact is not available. I heard part of the minister's response to this when I raised it last week. The minister, in part, responded to me raising these concerns on behalf of Senator Shoebridge and others in the Australian Greens by saying that some of these matters can be raised in a plea for mitigation.

It is abundantly clear to anyone who knows their way around criminal law that a plea for mitigation is not made during a trial. A plea for mitigation is made after a trial. It is a sentencing matter, not a matter that can be raised.

The fact that, under an absolute liability offence, the defence of honest and reasonable mistake of fact is not available and that the prosecution doesn't have to prove any mental element about the quantity gives rise to the possibility of a miscarriage of justice here. By miscarriage of justice, I mean a miscarriage of natural justice. This is fundamentally unfair.

We all know how this goes. I've been in this place for 10-plus years. I've seen it time after time after time.

People in law enforcement agencies or in agencies that sit within the security and intelligence complex in this country always want more powers. They always want more powers to surveil, they always want more powers to control, and they always want the scales tilted in favour of their agencies and their agendas. It is the people in this place who have a responsibility to stand up for natural justice and to acknowledge that, when the inevitable happens and people in law enforcement agencies security and intelligence agencies come to the government and, ultimately, to this parliament, and ask for an increase in their powers, our responsibility is to ask the questions: Is this a reasonable increase?

Is this an increase that is in the best interests of the Australian people? Are the increases in powers that are being requested fair? Are they in line with the legitimate expectation of Australian people that the government will not take unreasonable powers through this Senate that will lead to a denial of natural justice?

But, unfortunately, that is what is happening today, as happens so often in this place. It is the parties of government who always collude to remove fundamental rights and freedoms in Australia. While we have the opportunity, we will continue to raise concerns around the approach of moving away from purity based assessments, just as we will continue to raise concerns about the government's proposal, again, contained in this legislation to remove the requirement for individual written witness statements on chain of custody matters.

I do refer the government to National Legal Aid's view on these matters and raise the issue that this is an access-to-justice matter, and access to justice matters fall hardest on the people who can least afford it, because, for many people in this country, hiring a good lawyer is a minor inconvenience, but, for far, far more people in this country, hiring a good lawyer is somewhere between very, very difficult and impossible.

Although there are outstanding lawyers working in the legal aid sector, they are overworked because the government underfunds legal aid. Money will buy you a lawyer who can focus their time and who has enough time to focus. When you are forced into the legal aid system, although there are many, many outstanding lawyers and practitioners working in that system, the sad reality is that, because that system is so grossly underfunded, those lawyers are under a lot of pressure.

We have seen that in the community legal centres for far too long, not only during my time in this place but since well before I arrived.