Executive Summary
National Legal Aid (NLA) welcomes the opportunity to make a submission to the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026 (“the Bill”).
NLA’s submission primarily relates to Schedule 2, which introduces two substantive changes to Commonwealth drug law: continuity certificates and admixture provisions. NLA submits that both measures, as currently drafted, raise significant access to justice concerns.
On continuity certificates, NLA opposes the mechanism in its current form. The removal of individual continuity statements will reduce defence practitioners’ ability to identify evidentiary deficits before trial, erode prosecutors’ ethical obligation to detect and disclose continuity issues, and risk frustrating the right of accused persons to require witnesses for cross-examination. NLA recommends targeted amendments to strengthen the safeguards in the proposed provisions and invites the Committee to consider an alternative model (modelled on s 143(1)(i) of the Criminal Procedure Act 1986 (NSW)) requiring pre-trial defence disclosure of whether continuity is genuinely in issue.
NLA opposes shifting Commonwealth drug offences to a gross weight (admixture) approach. The proposed approach risks arbitrary outcomes, particularly where concealment materials or low purity substances inflate weight. The existing purity-based system more accurately reflects the nature and seriousness of the offence and supports fair and proportionate sentencing. The Bill does not address consequential adjustments to statutory thresholds.
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. If admixture is retained, NLA urges 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.
NLA makes seven recommendations in this submission, set out below.
List of Recommendations
Recommendation 1
That s 300.7(2) of the Bill be amended to require that each person whose acts or involvement are the subject of a continuity certificate be individually named.
Recommendation 2
That the Bill be amended to remove s. 300.9(4)(b) and that cross examination should be permitted provided the defendant gives the prosecution notice under s. 300.9 (4)(a).
Recommendation 3
That if s. 300.9(4)(b) remains in the Bill, the Bill is be amended to expressly set out the test in s.300.9 (4)(b), with broad application such that permission to cross-examine is granted unless the application is clearly vexatious or an abuse of process.
Recommendation 4
That the Committee consider an alternative model requiring pre-trial defence disclosure of whether continuity is in issue, modelled on s 143(1)(i) of the Criminal Procedure Act 1986 (NSW), as a less restrictive means of achieving the Bill’s stated efficiency objectives.
Recommendation 5
That the Bill be amended to require that a continuity certificate only certify matters within the personal knowledge of the issuing officer, and that the certificate include a statement to that effect.
Recommendation 6
That the purity-based system for measuring border-controlled drugs should be retained in the Criminal Code Act 1995 (Cth), and the Bill be amended to remove provisions to adopt a gross-weight (admixture) approach.
Recommendation 7
If the admixture provisions in the Bill are retained, thresholds for Controlled Drugs and Border-Controlled Drugs under the Criminal Code Regulations 2019 should be reviewed.
