Footnotes

Chapter 1

[1]        House of Representatives Votes and Proceedings, No. 58, 17 July 2014, pp 725-726 [proof].

[2]        Selection of Bills Committee, Report no. 9 of 2014, 17 July 2014; Journals of the Senate, No. 45, 17 July 2014, pp 1236-1237 [proof].

[3]        Explanatory Memorandum, p. 2.

[4]        Explanatory Memorandum, p. 2.

[5]        The Office of Best Practice Regulation advised that a Regulation Impact Statement was not necessary for the other measures in the bill, 'as the proposed changes have a minor impact on business, community organisations or individuals'. Explanatory Memorandum, p. 5.

[6]        Explanatory Memorandum, p. 2.

[7]        Explanatory Memorandum, p. 28.

[8]        Explanatory Memorandum, Regulation Impact Statement, p. 85.

[9]        Explanatory Memorandum, pp 28, 87.

[10]      Explanatory Memorandum, Regulation Impact Statement, pp 86-87.

[11]      Explanatory Memorandum, Regulation Impact Statement, p. 85.

[12]      Under the Criminal Code, new and harmful drugs, plants and precursors may be criminalised indefinitely by regulation (sections 301.7 and 301.8) or for up to 18 months under an emergency determination (sections 301.13 and 301.14), to allow time to determine whether a substance should be criminalised indefinitely. NPS may also be added to the Prohibited Imports Regulations on the basis of advice from the Therapeutic Goods Administration and Office of Chemical Safety (within the Department of Heath) about their potential risks and harms. See Explanatory Memorandum, p. 28.

[13]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 5 [proof].

[14]      Explanatory Memorandum, Regulation Impact Statement, p. 88.

[15]      Explanatory Memorandum, p. 28.

[16]      Intergovernmental Committee on Drugs (IGCD), Framework for a National Response to New Psychoactive Substances, October 2013, p. 3.

[17]      Attorney-General's Department, Regulation Impact Statement: Banning the importation of substances which mimic the effects of illicit drugs, May 2014.

[18]      Those from the Plastics and Chemical Industries Association, the Pharmacy Guild of Australia, and the Happy Herb Company.

[19]      Those from the Australian Drug Law Reform Foundation, the Eros Association, and Name Withheld. 

[20]      Explanatory Memorandum, Regulation Impact Statement, pp 104-105.

[21]      Explanatory Memorandum, Regulation Impact Statement, p. 106.

[22]      Explanatory Memorandum, p. 2.

[23]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 5 [proof]. At the meeting of the Law, Crime and Community Safety Council on 4 July 2014, Ministers endorsed the Framework for a National Response to New Psychoactive Substances. This framework was developed by the former Intergovernmental Committee on Drugs, with input from health, law enforcement and non-government experts and provides a guide for a balanced national response to new psychoactive substances. See Intergovernmental Committee on Drugs, Framework for a National Response to New Psychoactive Substances (October, 2013), available at http://www.lccsc.gov.au/sclj/lccsc_publications/2014_publications.html

[24]      Explanatory Memorandum, p. 30.

[25]      Note that it would not be necessary to prove that the defendant was reckless as to the particular identity of the substance or whether the substance had a particular psychoactive effect: new ss. 320.2(4). The prosecution need only prove that the defendant knew, or was reckless as to whether, the substance he or she imported was a psychoactive substance. Explanatory Memorandum, p. 38.

[26]      Within the meaning of the Food Standards Australia New Zealand Act 1991: new ss. 320.2(2)(a).

[27]      Within the meaning of the section 8 of the Tobacco Advertising Prohibition Act 1992: new ss. 320.2(2)(b).

[28]      Within the meaning of the Therapeutic Goods Act 1989: new ss. 320.2(2)(c) & (e). Goods that are represented in any way to be for therapeutic use or for use as an ingredient or component in the manufacture of therapeutic goods are also excluded: new ss. 320.2(2)(d).

[29]      Within the meaning of the Agricultural and Veterinary Chemicals Code Act 1994: new ss. 320.2(2)(f)-(h).

[30]      Within the meaning of the Industrial Chemicals (Notification and Assessment) Act 1989: new ss. 320.2(2)(i).

[31]      New ss. 320.2(2)(j).

[32]      New ss. 320.2(2)(k).

[33]      New ss. 320.2(2)(l).

[34]      Explanatory Memorandum, p. 32.

[35]      New ss. 320.2(3).

[36]      New ss. 320.2 (referring to ss. 13.3(3)).

[37]      Criminal Code, ss. 13.3.

[38]      Explanatory Memorandum, p. 37.

[39]      New ss. 320.3 (referring to ss. 13.3(3)).

[40]      Explanatory Memorandum, p. 42.

[41]      Explanatory Memorandum, p. 44.

[42]      Explanatory Memorandum, p. 43.

[43]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 5 [proof].

[44]      New Division 361 – International firearms trafficking.

[45]      Explanatory Memorandum, pp 57-58.

[46]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 6 [proof].

[47]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 6 [proof].

[48]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 6 [proof].

[49]      Explanatory Memorandum, p. 60.

[50]      Explanatory Memorandum, p. 79. 'Universal jurisdiction' is the term used to describe 'extended jurisdiction­­­­—category D' under section 15.4 of the Criminal Code. If this section applies to an offence, then the offence falls within Australian jurisdiction 'whether or not the conduct constituting the alleged offence occurs in Australia' and 'whether or not a result of the conduct constituting the alleged offence occurs in Australia'.

[51]      New ss. 270.3B.

[52]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 6 [proof].

[53]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 6 [proof].

[54]      Explanatory Memorandum, p. 84.

[55]      Explanatory Memorandum, p. 84.

[56]      The Hon Michael Keenan MP, Minister for Justice, House of Representatives Hansard, 17 July 2014, p. 6 [proof].

[57]      Explanatory Memorandum, p. 80.

[58]      See Additional information received from the Attorney-General's Department on 20 August 2014, available at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Psychoactive_Substances_Bill

[59]      Parliamentary Joint Committee on Human Rights, Tenth Report of the 44^th Parliament, 27 August 2014, pp 9-31.

[60]      Senate Standing Committee for the Scrutiny of Bills, Alerts Digest No. 10 of 2014, 27 August 2014, pp 15-16.

[61]      See https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs

Chapter 2

[1]        See Office of the Director of Public Prosecutions (Tasmania), Submission 11, p. 1; Australian Customs and Border Protection Service, Submission 14; Northern Territory Police Force, Submission 15, p. 2.

[2]        Australian Crime Commission, Submission 7, pp 2-3.

[3]        See Torsten Wiedemann, Submission 1; Dr Alistair Hay, Submission 2; Happy Herb Company, Submission 4; One Health Organisation, Submission 8; Confidential, Submission 9.

[4]        Bar Association of Queensland, Submission 12, p. 2.

[5]        Bar Association of Queensland, Submission 12, p. 1.

[6]        Bar Association of Queensland, Submission 12, pp 1-2.

[7]        Office of the Director of Public Prosecutions (Tasmania), Submission 11, p. 7.

[8]        Eros Association, Submission 13, p. 4.

[9]        Eros Association, Submission 13, p. 4.

[10]      Ms Fiona Patten, CEO, Eros Association, Committee Hansard, 22 August 2014, pp 20-21.

[11]      Happy Herb Company, Submission 4, p. 4.

[12]      See Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department, Committee Hansard, 22 August 2014, pp 29-30, 34; Attorney-General's Department, Answers to questions on notice, 22 August 2014 (received 28 August 2014), Attachment A.

[13]      Attorney-General's Department, Answers to questions on notice, 22 August 2014 (received 28 August 2014), p. 3.

[14]      See Torsten Wiedemann, Submission 1; Dr Alistair Hay, Submission 2; Happy Herb Company, Submission 4; One Health Organisation, Submission 8; Confidential, Submission 9.

[15]      Dr Alistair Hay, Submission 2, p. 1.

[16]      Torsten Wiedemann, Submission 1, p. 1.

[17]      Torsten Wiedemann, Submission 1, p. 1; Happy Herb Company, Submission 4, p. 2.

[18]      Torsten Wiedemann, Submission 1, p. 1; Happy Herb Company, Submission 4, p. 2.

[19]      Happy Herb Company, Submission 4, p. 2.

[20]      Mr Niall Edward Fahy, Operations Manager, Happy Herb Company, Committee Hansard, 22 August 2014, pp 15-16.

[21]      Torsten Wiedemann, Submission 1, p. 1; Alistair Hay, Submission 2, p. 1; Happy Herb Company, Submission 4, p. 2.

[22]      Attorney-General's Department, Answers to questions on notice, 22 August 2014 (received 28 August 2014), p. 2.

[23]      See, e.g., Bar Association of Queensland, Submission 12, p. 2; Ms Fiona Patten, CEO, Eros Association, Committee Hansard, 22 August 2014, p. 18.

[24]      Law Council of Australia, Policy Statement: Rule of Law Principles, March 2011, Principle 1(b), p. 2.

[25]      Office of the Director of Public Prosecutions (Tasmania), Submission 11, pp 6-7.

[26]      Northern Territory Police Force, Submission 15, pp 1-2.

[27]      Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department, Committee Hansard, 22 August 2014, p. 33.

[28]      Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department, Committee Hansard, 22 August 2014, p. 30.

[29]      Mr Roman Quaedvlieg, Deputy Chief Executive Officer, Border Enforcement, Australian Customs and Border Protection Service, Committee Hansard, 22 August 2014, p. 32.

[30]      Mr Roman Quaedvlieg, Deputy Chief Executive Officer, Border Enforcement, Australian Customs and Border Protection Service, Committee Hansard, 22 August 2014, p. 33.

[31]      The Law Society of NSW, Submission 10, pp 1-2.

[32]      Law Council of Australia, Policy Statement: Rule of Law Principles, March 2011, Principle 3(e), p. 3.

[33]      Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[34]      Mr Stephen Odgers SC, Member, National Criminal Law Committee, Law Council of Australia, Committee Hansard, p. 10.

[35]      In accordance with a protocol between the Commonwealth Director of Public Prosecutions and state/territory prosecutors, the states and territories will often prosecute cases involving a mix of Commonwealth and state offences.

[36]      See Director of Public Prosecutions (NSW), Submission 3, pp 1-2; Law Council of Australia, Submission 5, pp 1-2; The Law Society of New South Wales, Submission 10, p. 2; Bar Association of Queensland, Submission 12, pp 2-3; Office of the Director of Public Prosecutions (Tasmania), Submission 11, pp 10-12.

[37]      Director of Public Prosecutions (NSW), Submission 3, pp 1-2.

[38]      The Law Society of New South Wales, Submission 10, p. 2 [citations omitted].

[39]      Law Council of Australia, Submission 5, p. 2.

[40]      Law Council of Australia, Submission 5, p. 2.

[41]      Office of the Director of Public Prosecutions (Tasmania), Submission 11, p. 12.

[42]      Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department, Committee Hansard, 22 August 2014, p. 28.

[43]      Attorney-General's Department, Answers to questions on notice, 22 August 2014 (received 28 August 2014), pp 1-2.

[44]      Mr Stephen Odgers SC, Member, National Criminal Law Committee, Law Council of Australia, Committee Hansard, p. 11.

[45]      Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 52.

[46]      Attorney-General's Department, Answers to questions on notice, 22 August 2014 (received 28 August 2014), p. 2.

Additional comments by Labor Senators

[1]        Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 38.

[2]        The Hon Jason Clare MP, Minister for Justice, House of Representatives Hansard, 5 February 2013, p. 71.

Dissenting report by the Australian Greens

[1]        Bar Association of Queensland, Submission 12, p. 2.

[2]        Mr Torsten Wiedemann, Committee Hansard, 22 August 2014, p. 1.

[3]        Mr Niall Edward Fahy, Committee Hansard, 22 August 2014, p. 14.

[4]        Torsten Wiedemann, Submission 1, p. 4.

[5]        Committee Hansard, 22 August 2014, p. 23.

[6]        Ms Fiona Patten, CEO, Eros Association, Committee Hansard, 22 August 2014, p. 18.

[7]        Committee Hansard, 22 August 2014, p. 4.

[8]        Committee Hansard, 22 August 2014, p. 33.

[9]        Committee Hansard, 22 August 2014, p. 33.

[10]      Mr Torsten Wiedemann, Submission 1, p. 1.

[11]      Mr Niall Edward Fahy, Committee Hansard, 22 August 2014, p. 15.

[12]      Mr Niall Edward Fahy, Committee Hansard, 22 August 2014, p. 16.

[13]      Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department, Committee Hansard, 22 August 2014, p. 33.

[14]      Committee Hansard, 22 August 2014, p. 35.

[15]      Attorney-General's Department, Answers to questions on notice, 22 August 2014 (received 28 August 2014).

[16]      Happy Herb Company, Submission 4, p. 4.

[17]      Happy Herb Company, Submission 4, p. 2.

[18]      Ms Fiona Patten, CEO, Eros Association, Committee Hansard, 22 August 2014, p. 15.

[19]      Ms Fiona Patten, CEO, Eros Association, Committee Hansard, 22 August 2014, p. 19.

[20]      Committee Hansard, 22 August 2014, p. 35.

[21]      Ms Fiona Patten, CEO, Eros Association, Committee Hansard, 22 August 2014, p. 20.