Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Hansard source

by leave—In respect of the Public Health (Tobacco and Other Products) Bill 2023, I move amendments (1) to (5) on sheet 2218, as revised, together:

(1) Clause 3, page 3 (line 6), at the end of subclause (1), add:

; and (d) to combat the trade in illicit tobacco and e-cigarette products.

(2) Clause 3, page 3 (line 33), at the end of subclause (2), add:

; (m) establishing the Illicit Tobacco and E-cigarette Commissioner.

(3) Clause 4, page 4 (after line 28), after the paragraph beginning "A range of compliance", insert:

This Act also establishes the Illicit Tobacco and E-cigarette Commissioner.

(4) Clause 8, page 7 (line 5) to page 11 (line 28), insert:

Department of Home Affairs means the Department administered by the Minister for Home Affairs.

ITEC Commissioner means the Illicit Tobacco and E-cigarette Commissioner.

Minister for Home Affairs means the Minister administering the Australian Border Force Act 2015.

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

(5) Page 173 (after line 26), after Chapter 6, insert:

Chapter 6A — Illicit Tobacco and E-cigarette Commissioner

Part 6A.1 — Introduction

163A Simplified outline of this Chapter

This Chapter establishes the Illicit Tobacco and E-cigarette Commissioner, within the Australian Border Force which is part of the Department of Home Affairs.

The Illicit Tobacco and E-cigarette Commissioner has the following functions:

(a) supporting the development and implementation of national strategies for the enforcement of illicit tobacco and e-cigarette product laws;

(b) advising on the development of new laws and strategies relating to the trade in illicit tobacco and e-cigarette products;

(c) providing administrative and governance support for any intergovernmental responses to the trade in illicit tobacco and e-cigarette products in Australia;

(d) preparing and publishing reports;

(e) other functions as are conferred on the Commissioner by a law of the Commonwealth;

(f) anything incidental or conducive to the performance of any of the above functions.

Part 6A.2 — Illicit Tobacco and E-cigarette Commissioner

163B Illicit Tobacco and E-cigarette Commissioner

(1) There is to be an Illicit Tobacco and E-cigarette Commissioner.

(2) The Illicit Tobacco and E-cigarette Commissioner sits within that part of the Department of Home Affairs known as the Australian Border Force (within the meaning of the Australian Border Force Act 2015).

163C Functions of the ITEC Commissioner

The ITEC Commissioner has the following functions:

(a) supporting the development and implementation of national strategies for the enforcement of illicit tobacco and e-cigarette product laws;

(b) advising on the development of new laws and strategies relating to the trade in illicit tobacco and e-cigarette products;

(c) providing administrative and governance support for any intergovernmental responses to the trade in illicit tobacco and e-cigarette products in Australia;

(d) the reporting functions described in section 163D.

(e) such other functions as are conferred on the ITEC Commissioner by the regulations, this Act or any other law of the Commonwealth;

(f) to do anything incidental or conducive to the performance of any of the above functions.

163D Reporting functions

(1) The ITEC Commissioner has the reporting functions described in this section.

Law enforcement reports

(2) As soon as practicable after the end of each reporting period starting on or after the day this section commences, the ITEC Commissioner must prepare reports on the prevalence and consequences of the illicit tobacco and e-cigarette trade in Australia.

(3) As soon as practicable after the completion of a report prepared for the purposes of subsection (2), the report must be:

(a) published on a website maintained by the Department of Home Affairs; and

(b) given to the Minister for Home Affairs.

(4) The ITEC Commissioner must be satisfied that a report prepared for the purposes of subsection (2) was prepared in collaboration with such Commonwealth, State and Territory agencies as the ITEC Commissioner considers appropriate.

Excise and customs duty reports

(5) As soon as practicable after the end of each reporting period starting on or after the day this section commences, the ITEC Commissioner must prepare reports on the estimated amount of evaded tobacco excise and customs duty resulting from the illicit tobacco and e-cigarette trade in Australia.

(6) Without limiting subsection (5), a report prepared for the purposes of that subsection must include:

(a) estimates of the amount of imported and domestically produced illicit tobacco and e-cigarette products in Australia; and

(b) a comparison of the estimated amount of evaded tobacco excise and customs duty resulting from the illicit tobacco and e-cigarette trade in Australia, and the amount of excise and customs duty collected as a result of the legal trade in tobacco and e-cigarette products in Australia.

(7) As soon as practicable after the completion of a report prepared for the purposes of subsection (5), the report must be:

(a) published on a website maintained by the Department of Home Affairs; and

(b) given to the Minister for Home Affairs.

(8) The ITEC Commissioner must be satisfied that a report prepared for the purposes of subsection (5) was prepared in collaboration with the Australian Taxation Office.

Enforcement statistics reports

(9) As soon as practicable after the end of each reporting period starting on or after the day this section commences, the ITEC Commissioner must prepare reports on enforcement statistics, and analysis of those statistics, relating to the illicit tobacco and e-cigarette trade in Australia, including detections and seizures of illicit tobacco and e-cigarette products, and associated arrests.

(10) As soon as practicable after the completion of a report prepared for the purposes of subsection (9), the report must be:

(a) published on a website maintained by the Department of Home Affairs; and

(b) given to the Minister for Home Affairs.

(11) The ITEC Commissioner must be satisfied that a report prepared for the purposes of subsection (9) was prepared in collaboration with the Australian Crime Commission.

Tabling

(12) The Minister for Home Affairs must cause a report given to the Minister under this section to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

Definitions

(13) In this section:

reporting period means a period of 12 months starting on 1 July.

163E Application of finance law

For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the ITEC Commissioner is prescribed in relation to the Department of Home Affairs.

Note: This means that the Commissioner is an official of the Department of Home Affairs for the purposes of the Public Governance, Performance and Accountability Act 2013.

163F Arrangements relating to staff of the Department of Home Affairs

(1) The staff assisting the ITEC Commissioner are to be APS employees in that part of the Department of Home Affairs known as the Australian Border Force (within the meaning of the Australian Border Force Act 2015) whose services are made available to the ITEC Commissioner by the Secretary of the Department of Home Affairs, in connection with the performance of any of the ITEC Commissioner's functions.

(2) When performing services for the ITEC Commissioner, the persons are subject to the directions of the ITEC Commissioner.

163G Other persons assisting the ITEC Commissioner

(1) The ITEC Commissioner may also be assisted by employees of Agencies (within the meaning of the Public Service Act 1999) whose services are made available to the ITEC Commissioner in connection with the performance of any of the ITEC Commissioner's functions.

(2) The ITEC Commissioner may, on behalf of the Commonwealth, make an arrangement with the appropriate authority or officer of:

(a) a State or Territory government; or

(b) a State or Territory government authority;

under which the government or authority makes officers or employees available to the ITEC Commissioner to perform services in connection with the performance of any of the ITEC Commissioner's functions.

(3) An arrangement under subsection (2) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of a person to whom the arrangement related.

(4) When performing services for the ITEC Commissioner under this section, a person is subject to the directions of the ITEC Commissioner.

163H Delegation by the ITEC Commissioner

(1) The ITEC Commissioner may, in writing, delegate all or any of the ITEC Commissioner's functions or powers under this Act to an SES employee, or an acting SES employee, in the Department of Home Affairs.

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

(2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the ITEC Commissioner.

163J Ministerial directions

(1) The Minister for Home Affairs may give the ITEC Commissioner directions about the way in which the Commissioner is to carry out any of the functions of the Commissioner.

(2) However, the Minister for Home Affairs must not give directions about the content of any advice that may be given by the ITEC Commissioner.

(3) A direction under subsection (1) must be in writing.

(4) The ITEC Commissioner must comply with a direction under subsection (1).

(5) A direction under subsection (1) is not a legislative instrument.

(6) The Minister for Home Affairs must cause a copy of each direction given under subsection (1) to be tabled in each House of the Parliament as soon as practicable after giving the direction.

Part 6A.3 — Administration

163K Appointment of the ITEC Commissioner

(1) The ITEC Commissioner is to be appointed by the Minister for Home Affairs by written instrument, on a full-time basis.

Note: The ITEC Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2) The ITEC Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

163L Acting appointments

The Minister for Home Affairs may, by written instrument, appoint a person to act as ITEC Commissioner:

(a) during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or

(b) during any period when the Commissioner:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

163M Remuneration

(1) The ITEC Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the regulations.

(2) The ITEC Commissioner is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

163N Leave of absence

(1) The ITEC Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister for Home Affairs may grant the ITEC Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

163P Engaging in other paid work

The ITEC Commissioner must not engage in paid work outside the duties of the Commissioner's office without the approval of the Minister for Home Affairs.

163Q Other terms and conditions of appointment

The ITEC Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act, that are determined by the Minister for Home Affairs.

163R Resignation of appointment

(1) The ITEC Commissioner may resign the Commissioner's appointment by giving the Minister for Home Affairs a written resignation.

(2) The resignation takes effect on the day it is received by the Minister for Home Affairs or, if a later day is specified in the resignation, on that later day.

163S Termination of appointment

(1) The Minister for Home Affairs may terminate the appointment of the ITEC Commissioner:

(a) for misbehaviour; or

(b) if the Commissioner is unable to perform the duties of the Commissioner's office because of physical or mental incapacity.

(2) The Minister for Home Affairs may terminate the appointment of the ITEC Commissioner if:

(a) the Commissioner:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the Commissioner's creditors; or

(iv) makes an assignment of the Commissioner's remuneration for the benefit of the Commissioner's creditors; or

(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the Commissioner engages, except with the Minister's approval, in paid work outside the duties of the Commissioner's office; or

(d) the Commissioner fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.

The bill's digest states that this legislation doesn't address the growing and critical issue of illicit tobacco. The existence of a thriving black market for tobacco products—and vaping products, for that matter—completely undermines the effectiveness of the tobacco control that has been sought to be implemented by the measures and regulations that are contained in this bill. We know that the black market is accounting for significant growing numbers of cigarettes and tobacco that are consumed in Australia, although it appears as if the government is completely unaware of the quantum of that. Given I've got a new minister, I might ask him a question at the end of this.

We've got really serious concerns that the actions to double down on existing regulations in the absence of actually addressing the really, really serious issue before us of illicit and illegal tobacco fail to adequately address the concerns that many Australians have and the unbelievable impact that a growing black market by organised crime is having in this country. The difficulty of tracking and monitoring the number of smokers lost to the black market is a significant concern. Despite repeated requests this morning of the minister who was in the chair, I was unable to get any understanding about the quantum of that—oh dear! I'm not going to get the chance, because I've got the other minister back. Dang! The government must protect the community from illicit products. Many of them contain very harmful chemicals.