COMMITTEES

Senator DEAN SMITH (Western Australia) (19:11): I present Scrutiny digest 13 of 2026 of the Standing Committee for the Scrutiny of Bills, together with ministerial correspondence received by the committee, and I move: That the Senate take note of the report. As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny digest 13 of 2026.

The digest contains the committee's consideration of 11 bills introduced during the period from 14 September to 17 September 2026 and amendments agreed in relation to one bill. The digest also contains the committee's concluded examination of one previously introduced bill. I wish to draw senators' attention to the committee's comments in relation to the Customs and other Legislation Amendment (Illicit Tobacco Enforcement, Modernisation and Other Measures Bill) 2026.

The bill would introduce criminal offences that would apply when a person has imported tobacco and it is reasonable to suspect that that person intends to defraud the revenue or that the tobacco was imported illegally. The bill would also insert a criminal offence for the importation of tobacco without permission or in breach of permit conditions. In this digest, the committee notes that the element of reasonable suspicion in the new offences would provide for a lower standard of proof than what is usually required in criminal law.

This means that the prosecution would not have to prove an intention to commit the offence beyond a reasonable doubt. Absolute liability would also apply to these elements, removing the requirement for the prosecution to prove the defendant's fault. The committee considers that the approach taken in the bill risks conviction where the evidence may not prove a defendant's culpability to the usual criminal standard of proof.

Second, the bill would provide circumstances where it is presumed that it is reasonable to suspect that importing tobacco would result in the defrauding of the revenue or that tobacco has been illegally imported, reversing the evidential burden of proof. A defendant would need to raise evidence to disprove the reasonable suspicion in that circumstance. The committee notes that this departs from the common-law requirement for the prosecution to prove all elements of an offence.

This is compounded by the fact that these presumptions would apply to an element of the offence where the defence of mistake of fact would not be available. Third, the committee has noted that significant penalties are proposed for the new offences without sufficient justification. The new offences carry a maximum penalty of five years imprisonment, which may increase up to 10 years imprisonment if an aggravated circumstance is proven.

The committee acknowledges the deterrent intention of the penalties but considers that they have not been fully justified with reference to comparable offences in other Commonwealth legislation. The committee has noted that each of these scrutiny matters may, on their own, be acceptable within the context of deterring large-scale commercial importation of tobacco.

Nevertheless, the committee is concerned about the cumulative effect of the matters and considers that offences such as these should be used judiciously so as to not significantly trespass on personal rights and liberties. The committee has therefore resolved to draw the Senate's attention to the matters under Senate standing order 24(1)(a)(i), which requires a committee to consider whether provisions of bills before the parliament trespass unduly on personal rights and liberties.

The bill would also expand the application of powers for customs officers to arrest a person without a warrant for specific purposes, if the officer reasonably believes that one of the new criminal offences has been or is being committed. The committee has requested advice from the minister about the necessity of the expansion of the appropriateness of a broad range of people, including any employee in the department, being empowered to use a highly coercive power.

With these comments, I commend the committee's Scrutiny digest 13 of 2026 to the Senate. Question agreed to.