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

Just before we move to Senator Canavan, who has some amendments that he wishes to move, I am keen to get some broader information. I'm just wondering: how does the government model the use of illicit tobacco?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

You're wanting to see what the model is in terms of the illegal tobacco use? Is that the question? I'll try and draw this out as long as I can! The Illicit Tobacco Taskforce continues to crack down on the illicit tobacco trade with the Australian Border Force, the Australian Taxation Office, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre and the Commonwealth Director of Public Prosecutions, as well as law enforcement agencies, working together to target, disrupt and dismantle serious and organised crime syndicates that deal in illicit tobacco. Since its establishment in July 2018, the Illicit Tobacco Taskforce has led 58 operations involving or related to domestically grown tobacco, and these have resulted in the seizure and destruction of over 380 tonnes of illicit tobacco and over seven million cigarettes, with an estimated forgone duty value of $567 million. Ten people have been convicted and sentenced to jail terms of up to three years.

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

I was actually more seeking to understand how you measure the level of illicit tobacco that you believe to be currently sold in Australia, not the enforcement part.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

The Illicit Tobacco Taskforce would provide the information for us to be able to work on that, but I'll just seek advice to see if there's further information for you. In my response to you, I also mentioned the Australian Taxation Office, which I am advised reports on data and provide that data on an annual basis.

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

I'm seeking to understand how you actually measure it. You're talking about places that have an interaction, and we know that Border Force has an interaction, the tax office has an interaction and the states and territories have an interaction, but I'm keen to understand—maybe I'll give you a different question. In your summing-up speech you mentioned that smoking rates in Australia are at about 11 per cent. Is that 11 per cent that purchase their tobacco legally or is that 11 per cent of people who smoke?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I made reference to the plain packaging in my summing-up statement for that particular statistic, saying that around 16 per cent of Australians smoked and that today that rate is down to just under 11 per cent. That's the reference to the 11 per cent around the smoking stats.

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

I get that. If we're talking about 11 per cent, for the sake of round numbers, I'm interested to understand: does that 11 per cent you're referring to refer to the smoking rate in Australia or a measured amount as it relates to the smoking of a legally purchased product?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Just to clarify: you've moved from your question around illegal modelling to the legal product?

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

You used the number of 11 per cent for the smoking rate in Australia. I'm trying to understand how you are actually measuring the number of people in Australia who are smoking. I'm keen to understand what the basis is of that 11 per cent. How has that number come about? Is it the amount of people? Does it include the illicit or illegal sale of tobacco or is it merely the legal sale of tobacco?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

The information comes from the Australian Bureau of Statistics' data, where they ask in the census the question around tobacco smoking.

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

I accept that you say it's a question in the sense of 'Do you smoke?' and that 11 per cent of people said, yes, they did; that's pretty much what I think we've just said. How do we know, of that 11 per cent of people who apparently smoke in Australia, how many of them are accessing their tobacco or cigarettes via a legally accessible, regulated means, and what percentage of that 11 per cent are accessing their tobacco or cigarettes via the black market?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

One of the areas I want to be really clear on here is that we feel that all tobacco products are harmful; I said it here in my summing up speech but I've also said it on numerous occasions in terms of the concerns around public health. We know the high rates of cancer is one of the leading causes of health issues for Australians. We also know that, of the different types of cancer one can have, lung cancer is the leading cancer for Australians. I would say that we would want to see every Australian aware of the impact of tobacco products on their health and the public health of others.

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

I'm not disputing what you're saying. I'm trying to understand what the government's understanding is of the percentage of tobacco use in Australia that is legal and the percentage of tobacco that is being accessed through illicit or black market channels. With a great amount of respect, I don't think there's any difference between the harm that's caused by a packet of cigarettes that has been bought in a legally regulated shop and a packet of cigarettes that's been bought illegally under the counter. I'm not seeking to debate the merits of smoking or not. I'm seeking to understand how many people in Australia are accessing their tobacco or cigarettes via black market channels.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I will refer you to the Senate inquiry, where Professor Coral Gartner, an international expert on tobacco controlled policy and the world's leading expert on e-cigarettes, said that there is no evidence to suggest that such measures would increase illicit tobacco. I see where you're going. She also pointed out that similar arguments were raised when plain packaging reforms were first proposed. That would have been 12 years ago when the then minister, Nicola Roxon, brought it in. We saw this same argument on illegal tobacco and the illegal black market brought in to bring about a fear campaign when the complete focus of this bill is on plain packaging. It is also about the care and concern for the health of Australians.

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

I'm seeking to understand: does the government know the rate of sale of illegal cigarettes? Eleven per cent of people indicated through the census that they smoke. I'm trying to understand what percentage of those people are accessing their products through legal means and what percentage are accessing them through black market channels.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I provided the answer before about the Australian Taxation Office. I can point out what's in the ATO data in regard to your question. The net gap is the estimated amount of illicit tobacco that was not detected and made it into the illicit market. The net gap for 2021-22 was estimated to be 1,466 tonnes or $2.34 billion—13 per cent. That was an increase from 2020-21, when it was estimated to be 1,241 tonnes or $1.90 billion—10.4 per cent.

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

So you're saying 1,466 tonnes of tobacco the ATO believes made it into Australia in 2021-22 and onto the black market and was sold via the black market? Is that correct?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

For 2021-22, it was estimated to be 1,466 tonnes or $2.34 billion—13.1 per cent. Is that what you asked me?

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

I'm trying to understand what you mean by the concept of net gap?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

The net gap tax. You asked me a question as to where we came up with our statistics and our models. In my response, I said to you that the Illicit Tobacco Taskforce is a part of that in terms of where we get our information and its crackdown on the illicit tobacco trade with the Australian Border Force, the Australian Taxation Office, the Australian Criminal Intelligence Commission, Australian Transaction Reports and Analysis Centre and the Commonwealth Director of Public Prosecutions, as well as law enforcement agencies working together. That piece of information I've given you in relation to the Australian Taxation Office is just a small excerpt, but there are obviously other issues there that you may wish to have a look at.

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

At the risk of sounding like a cracked record, does the government know how many people in Australia are accessing their tobacco via the black market?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I have said that. I've explained to you, from this information from the Australian tax office, that the net gap for 2021-22 was estimated to be 1,466 tonnes. I'm not sure how much more I can elaborate on that.

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

How many people does that relate to? You've said 11 per cent of Australians have responded to say that they are smoking. First of all, what does 11 per cent equate to in numbers, and how many of those people are accessing their tobacco or cigarettes via the black market? Do you know the breakdown between the number of people who are accessing tobacco legally and illegally? Do you know the breakdown of the numbers?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I will just get some further advice on that, to get the figures for you, but it will be in relation to what I've mentioned in terms of the Australian Taxation Office.

Ross Cadell (NSW, National Party) Share this | Link to this | Hansard source

You say this data as to the gap of 1,466 tonnes comes from the Australian Taxation Office. Last time I checked, most organised crime gangs don't put BAS statements in. Where is the source of that information for the ATO?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Thank you, Senator, for your question. I probably would put a question in return and say, 'How many criminals would you know, to know that they wouldn't put in their BAS?' But, anyway, I will answer the question.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Ruston, on a point of order?

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

I think the minister might like to withdraw that comment.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

It wasn't really an adverse inference; it was a query of the question, but I'll leave it to the minister.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

In the interest of moving the committee stage forward, Chair, I will seek to address the remainder of that question from the senator.

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

You're not withdrawing?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Didn't I say, in the interest of moving forward?

Yes, I will withdraw, in the interest of moving forward. In terms of the other agencies that I mentioned in my previous answers to Senator Ruston about the Illicit Tobacco Taskforce, we know that the Australian Border Force does provide significant information to both the ATO and the ABS, largely because they are all on the Illicit Tobacco Taskforce. We would certainly direct you there in terms of your question on how they would ascertain information on the illegal trade.

Ross Cadell (NSW, National Party) Share this | Link to this | Hansard source

In estimates this year, Australian Border Force were asked about their detection of both illegal tobacco and illegal vapes at the border. They compared it to illegal drugs, where they said approximately 20 per cent to 25 per cent are detected. Do you have the numbers for search and seizure of illegal tobacco at the border for the last few years?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I will take that question on notice, Senator.

Ross Cadell (NSW, National Party) Share this | Link to this | Hansard source

If we're just going on a taxation take and an estimate of these numbers, where shops, retailers and the like are seeing up to a 50 per cent decline in sales of tobacco and we're not seeing a corresponding fall in smoking, is it fair to say that these policies have led to an increased market share for illegal crime across Australia?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I think your suggestion in that question is that we would see an increase in illegal trade. Is that pretty much where you're going? I have to refer again to some of the commentary. I do understand where you're going with your argument, but I have to remind the Senate that this is a bill about plain packaging, and it's a bill about reducing smoking and the harm that smoking creates. I know that you don't want to go there, but I think it's really important to remind the Senate what this particular piece of legislation is about in streamlining the concerns that we have around the amount of smoking that takes place through the forms of packaging that are out there.

I want to go to your previous question as well, Senator Cadell, in terms of illicit tobacco. You did ask a question, and I said I'd take it on notice and I've just been provided with an answer. The 58 operations of the Illicit Tobacco Taskforce have resulted in the seizure and destruction of over 380 tonnes of illicit tobacco and over seven million cigarettes, with an estimated value of $567 million.

Ross Cadell (NSW, National Party) Share this | Link to this | Hansard source

For clarity, was that in the last year or is that over another period of time, and was that 380 tonnes of unrolled tobacco as well as seven million cigarettes, or 380 tonnes made into seven million cigarettes?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I'll answer the first part of that question for the time being. You've checked on when. The Illicit Tobacco Taskforce was established in July 2018, so these are figures since July 2018. What was the second part of your question again?

Ross Cadell (NSW, National Party) Share this | Link to this | Hansard source

Was the 380 tonnes separate, loose tobacco, or was it included in the seven million cigarettes?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I'm just reading through some of the stats here to assist with your question. Over the last financial year, the Australian Border Force made over 120,000 detections of illicit tobacco and seized over 1.77 billion cigarettes and over 867 tonnes of loose-leaf tobacco. That's correct according to my notes here—over the last financial year.

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

Minister, you made the comment in response to Senator Cadell that the purpose of this bill was largely to reduce smoking rates in Australia. Is that correct?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I certainly have made the comments both in my summing up and to you and Senator Cadell that this is about plain packaging and reducing the harm that is created through smoking across Australia. It is incredibly significant that we can pass this legislation to streamline the changes we need, in terms of packaging, to reduce the amount of smoking in our country because we are very concerned, especially from all the evidence that was provided to the Senate committee by public health groups—in particular, the Australian Cancer Council—about the high rates of cancer in Australia.

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

Minister, just to be really clear, the purpose of this bill is to reduce smoking rates in Australia for the purposes that you've just outlined. Is that correct?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Senator, I have responded by saying this is a plain-packaging legislation. We are looking at the packaging of cigarettes and other forms in terms of e-cigarettes.

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

I'm going to assume that what you've just said to the chamber is that the purpose of this bill is to reduce smoking rates in Australia. It's all the way through your explanatory memorandum, so I'm just assuming that I'm right in saying it's reducing smoking rates in Australia. I'm interested to understand how you intend to measure the success of this bill if you are unable to give me any indication at all as to the breakdown between legally accessed tobacco and tobacco that's accessed by illegal or black-market channels. How are you going to measure this?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Senator, we know that you're here to give the lines for those who wish to see no changes to the tobacco industry.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator, you need to withdraw that. That's an inappropriate reflection on the motivations of Senator Ruston, so I would ask you to withdraw that.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Chair, I withdraw, in the interest of moving the committee forward.

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

Chair, I am really clear, I think, in my questioning to the minister so far, but what we've seen this morning is the minister completely and utterly ducking and weaving and refusing to answer the question. I, like everybody that's sitting on this side of the chamber, want to see smoking rates in Australia reduced, particularly amongst younger Australians but for all Australians, because we understand the massive health implications of people who smoke and the significantly higher risk that they have to get conditions and illnesses that are directly related to cigarette smoking. So I want to just put it on the record that, no matter what minister might be saying, there is not a person on this side of the chamber that does not want to see smoking rates and the associated health damage that is associated with smoking reduced. I am merely asking the government to undertake, to make a commitment or to provide some evidence about how they're going to measure the changes, because we know that there is no enforcement built into this piece of legislation. It has no enforcement in it at all. So, in the absence of actually dealing with enforcement, all of the issues that were outlined by Senator Canavan in his contribution in the second reading are not being addressed. We're not addressing the issues around the lack of excise and revenue that's being generated for the Taxation Office. We're not addressing the black market and the organised crime that sits behind that black market, which has much more sinister outcomes because of the massive amounts of money that are being earned through the illegal trade by the crime gangs that are currently running it, and we're seeing massive amounts of disruption in our communities where crime gangs are having wars about who's getting to sell the most illicit tobacco. What I merely want to ask is: is the legislation that is before us designed to reduce the amount of tobacco consumption? That's what the minister for health has said. In order for us to understand the implications of this, we need to be able to measure it. The first basis and benchmark and baseline that we need to understand if we are to measure the success of the changes that have been proposed by this is what the black market is at the moment.

If we have 11 per cent of Australians currently smoking, how many of those people are accessing their tobacco or their cigarettes via the normal regulated channels that are completely legal in Australia and how many of them are accessing it by the black market? Merely coming in here and saying that we have seen a reduction in the amount of legal smoking does not necessarily translate into a reduction in smoking. If all we are doing because of the lack of enforcement that is built into this is forcing people who currently are purchasing their cigarettes by the legal, regulated market into an illegal, crime-gang run, illicit market then we haven't actually achieved anything.

I'm just keen to understand what the government's baseline is in terms of how it intends to measure the success of this particular piece of legislation. So, Minister, I will ask you once again: how are you going to measure the success of this piece of legislation when you quite clearly have no idea—and your officials are providing you with no evidence or advice as to what it is—about the size of the existing black market in Australia? Do you have a measure to determine whether that black market is going to increase or decrease as a result of this bill?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I refute and reject everything you have just said. The officials on this side of the Senate would certainly know their information, and they would certainly know a lot more than what you were implying. I want to put on the record here and again reiterate to the Senate that addressing the illegal tobacco trade is an integral part of any comprehensive tobacco control strategy. The Illicit Tobacco Taskforce is part of that, and all of those agencies, including the Australian Border Force, the Australian Taxation Office, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre and the Commonwealth Director of Public Prosecutions, as well as law enforcement agencies, are working together to target, disrupt and dismantle serious and organised crime syndicates that deal in illicit tobacco.

The best way for anyone to improve their lives would be to just stop smoking altogether, whether it is legal or illegal smoking, Senator Ruston. So I'm not too sure why you want to keep pushing this line that illegal trade is going to cause the sky to cave in for this piece of legislation after what we heard through the evidence to the Senate committee. Let me read through what the public health advocates and experts said. Yes, they recognise the problem of illicit tobacco in the Australian community, but many refuted the claims by tobacco companies and retailers that proposed measures will drive consumers to the illicit tobacco market. For example, the Public Health Association of Australia explained that, when implemented in other countries, measures such as those proposed by this bill have not been shown to drive consumers to illicit products. Professor Coral Gartner, an international expert in tobacco control policy, said:

Not progressing regulations that will improve public health through regulating tobacco products is not an effective way to reduce the illicit tobacco market … We had these arguments raised when plain packaging was being discussed, that it would lead to an increase in illicit trade, and there is strong evidence that that didn't happen.

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

Could you just repeat your last statement?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I refer you to page 55 of the Senate report.

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

I will get that out in a second because it seems to me that you just put on the record exactly my argument. The point I'm actually trying to make here is this. I'm not trying to say that this bill is going to do something or is not going to do something. I'm simply trying to understand how you are intending to measure whether it is or it isn't. I'm not coming in here and saying that this bill is going to increase the black market. What I'm seeking to understand is what the size of the black market is and how you are going to measure whether the bill does or doesn't push people onto the black market. Everything you have said is fine, but it is completely missing the point of the questioning I am trying to put to you. What is the size of the black market in Australia today?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I beg to disagree with the senator. I have responded to many forms of that question already and have referred the senator to the Australian Taxation Office in terms of that modelling. I also believe we have answered her questions regarding the modelling.

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

Is it the minister's view or the government's view that one in four cigarettes sold in Australia is illegally purchased?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I'm advised that that is not the case.

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

If that's not the case, what is the case?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I refer to my previous answer in relation to the net tax gap. The net gap for 2021-22 was estimated to be 1,466 tonnes.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I raised some issues in my second reading speech, particularly around the Minister for Health and Ageing's comments in recent weeks. Last week the minister gave a press conference and claimed that no users of e-cigarettes would be prosecuted in Australia. For the record, I repeat the direct quote of what the minister said at that press conference last Tuesday:

These are not measures targeting users. These are not measures that impose any penalty whatsoever on people that are using vapes. There is no penalty for people who use vapes.

Minister—through you, Chair—in my contribution to the second reading debate I raised the case of a 49-year-old gentleman in Western Australia who was charged in the WA Magistrates Court last Friday with the possession of a vape containing liquid nicotine. If the minister is claiming that no users will be penalised, how is it possible that just days after his statement an Australian was charged for that very crime in Western Australia?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Thank you for your contribution today, Senator Canavan. We know that these offences are being prosecuted under state law, and the Commonwealth does not interfere in or comment on prosecutions undertaken by the states under state law.

The Australian government is not going to blame those users. The Australian government is not about to attribute blame to people who use these products and have become addicted. This has been a vast act of subterfuge by the tobacco industry, which promoted the development and the marketing of these products for one clear purpose—to recruit a new generation of nicotine addicts.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I'm a bit perplexed by that contribution. I might come back to it later. I'm not aware of any big tobacco companies, so to speak, selling vapes in Australia or marketing them. It's illegal for them to do so. If the minister has any evidence to back up that comment, I'd be interested in it. I don't think she does because that's not a thing.

It would seem from Minister McCarthy's contribution that the minister for health in this government, Mark Butler, misled the Australian people last week. The minister just said that this government takes no responsibility for the actions of state governments, but the minister for health clearly promised the users of vapes last Tuesday that they would not be prosecuted. Users of vapes heard from the federal minister that they would not be prosecuted. Today the minister is turning around and saying, 'Actually, what the minister for health said last Tuesday was completely bunkum.' The minister for health misled the Australian people and he misled the 1.3 million Australians who now vape, because the minister here is now saying, 'We don't take any responsibility for state actions.'

Now, keep in mind that what the minister's doing here on e-cigarettes is being done in cooperation with state governments. I think what the minister said is not really misleading, but it's incomplete. The government is coordinating with state governments on these matters, and they've made a song and dance of doing so—of banning the importation of vapes and having a perceived crackdown at the state level. I'm yet to see a lot of evidence of it; I still see a lot of vapes in my community. But they are working in cahoots here, no doubt, with the state government. Can I confirm, then, that the minister cannot promise that the 1.3 million adult Australians who use vaping products won't be prosecuted by state governments for simply the possession or use of liquid nicotine?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I do take some concern with your comments in relation to Minister Mark Butler and his determination to protect the youth of Australia in regard to these areas around tobacco and the concerns we have with e-nicotine. I take concern with that because I know the minister is working very diligently with his department and with states and territories, because we know the impact this is having on our youth across the country, particularly in our schools and classrooms.

You heard the minister on Friday. He is going to work with states and territories. I understand that that legislation will be introduced in 2024 to prevent the domestic manufacture, advertisement, supply and commercial possession of non-therapeutic and disposable single-use vapes to ensure comprehensive controls on vapes across all levels of the supply chain. This legislation will not criminalise personal possession or use. It will be about working with state and territory governments. We recognise there are a range of state and territory laws that regulate vape supply and use that will continue unless the states and territories repeal them.

So, could I just point out to the Senate that a terrific amount of work is going into this. I do get the coalition's concerns, from Senator Canavan and also Senator Ruston, around the illicit tobacco side of things. But I reiterate to the Senate that this is a critical time to send a very strong message across the country that we want to see a reduction in this space. We want to see the improved health of people. And yes, we want to do that through what we see in this particular legislation with plain packaging.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

For the record, it's very important to note that the minister did not answer my question. The minister did not promise that 1.3 million adult Australians would not be prosecuted for simply possessing or using liquid nicotine. She did not make that promise. The minister for health made that promise last Tuesday, but this minister has refused the opportunity today to repeat that promise. So, you can only conclude that, consistent with my contribution, the government intends to criminalise 1.3 million adult Australians after Christmas this year for simply using or having a vape—liquid nicotine. It is unbelievable. This is 1.3 million adult Australians. About 10 per cent of adult Australians in this country use liquid nicotine or use vapes. They are going to be made criminals under the plans of this government. And this idea that it's somehow the states' fault is absolutely absurd, given what we're facing here. Part of this bill is about e-cigarettes. Section 42 is all about prohibiting e-cigarette advertisements. The objects of the bill talk about e-cigarettes.

The government has its hands dirty here. It is responsible as well for what is going on here in this country, where a 49-year-old man in Western Australia is facing up to two years jail simply for having liquid nicotine in a vape. That's the current state of play. And the government is sitting back and doing nothing about it—in fact, misleading the Australian people, saying people would not be prosecuted, and they're now admitting: 'Oh, no, we can't do anything about it. The minister shouldn't have said that last week.' Well, that is very small comfort for those Australians who are now worrying, in the lead-up to Christmas, what they're going to do.

They're addicted to nicotine, they're using vapes instead of smokes, which are better for their health, and now the government is calling into question whether they'll be made criminals or not in a month's time. It looks like they will be.

I met with this gentleman's lawyer this morning. He mentioned a 49-year-old man was charged in the WA Magistrates Court on Friday last week. He's pleading not guilty because, in his view, he has done nothing wrong. The minister said he wouldn't be charged. He doesn't believe he should be charged under these laws. I know that the minister is trying to deflect everything to the states, but the relevant WA state law refers back to the poison standard, which is a national regulation. So there's another link here to the federal government: a federal minister saying they wouldn't be prosecuted and a few days later an Australian being prosecuted. He's pleading not guilty. I met with the man's lawyer, and the man's lawyer told me that a few weeks ago he wrote to the federal minister, referring to comments from the minister before last Tuesday's conference—apparently, the minister had made similar comments previously—asking for clarification about why his client is being charged when the minister had said users would not be prosecuted. My understanding from the gentleman's lawyer is that the minister has failed to respond to that correspondence. Have the minister and the minister's office received that correspondence? If so, had they received it before the minister's press conference last Tuesday?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I've just been advised that we have received that information. I'm unsure about the second part of your question at this point.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

Thank you for that. I would imagine it was received, given it was sent a number of weeks ago, apparently. It probably was received before then, so it calls into question once again why the minister was making misleading statements. The minister's office, at least, would have known—should have known—that this gentleman faced these charges, yet they allowed—or the minister did and wasn't corrected by his office—to have put an illusion out there to the Australian people that somehow they would be prosecuted when he should have known at the time he made these comments that, in fact, there was a gentleman prosecuted for that very thing in Western Australia. This is a shocking indictment here on the government's approach. They are trying use every trick in the political book to ignore the fact that their plans are going to criminalise 1.3 million adult Australians, and they have no plan for what these people do.

I may come back to some of this gentleman's case if there is time, but I also want to move on slightly. One of the issues for this gentleman and the other 1.3 million Australians who currently vape is that their only legal alternative to continue vaping is to go to a pharmacy after 1 January, when the government bans the personal importation scheme. I'll put on the record that I'm not a vaper, I don't vape, I don't encourage people to vape and I don't think it's a good thing to do, but I'm not in the business of telling people how to run their lives. What I hear back from vapers is that very few pharmacists stock vaping products because they don't want to be in the business of selling this product. That's their choice. Even those who do have a very limited range, and they're often not fit for purpose for people and, therefore, have limited use. Can I ask the government, what percentage of pharmacists today do stock e-cigarettes under the legal arrangements, and what's the annual revenue from e-cigarettes in Australian pharmacies?

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I will take that question on notice and provide a response back to you.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

STEELE-JOHN () (): I want to place on the record, first of all, the Australian Greens' position in relation to Senator Canavan's amendment. I'll make a couple of observations about the amendment. First of all, what Senator Canavan has brought is a rather substantive amendment to the legislation, and in the narrow time afforded to us we haven't had the opportunity to go through all of it and its potential ramifications. I observe two things about the amendment brought by the Senator.

First of all, it would see nicotine removed from the Poisons List, and this is not something that the Greens support. We do not support removing nicotine from the Poisons List. The references in the amendment to an e-cigarette take-back scheme could conceptually be something the Greens would be supportive of. However, in the broad this amendment is of the kind that should be considered in relation to the government's bill in relation to vaping more broadly, which, as indicated, the government will bring to the Senate next year. There is consultation underway on what e-cigarette legislation would look like, and we want to wait for that process to conclude, rather than rushing to the amendment from Senator Canavan. We also note that the National Party is a recipient of donations from the tobacco industry, so we take that into account whenever the Nationals come in here with an idea in relation to a tobacco bill.

I would also say in relation to this legislation, in general terms, that it does give us an opportunity to consider powerful case studies in relation to legislation and how it is actually created in Australia. As has been quoted by many during the course of this debate, smoking and tobacco use are a public health crisis in Australia and have been for decades. We know from the Cancer Council that about two million Australians smoke regularly still—to this very day—and that it has a material flow-on impact on people's health. People die because of smoking. Thousands of people die every single year. Thousands more contract terrible health conditions which worsen the quality of their life. What is lost when a human being is taken from family and community due to cancer—and I've heard about terrible conditions in relation to smoking—is that you lose not only that person and their life, all that they hoped still to do, but also all that they meant to everyone around them. There is a massive community impact from that absence. So too with the ill health that comes as a result of smoking, even if you do quit and survive. People think that lung transplants, for instance, are reasonably easy things to journey through; they're not. And they're not actually the first thing people go through. The removal of part of a lung, for instance, is a lot more common and has significant flow-through health impacts.

In response to this reality, this chamber, over the last decades, has legislated to bring down the rate of smoking. Guided by scientists, experts and public health officials, and by community organisations and advocates, we have worked together to produce world-leading legislation which the Greens have supported—plain packaging, for instance. We have seen that that evidence based policy has driven outcomes. It has saved lives, and it is to be celebrated for that reality. Along the way, we set up better funded commissions and appointed public health workers to work with affected communities to improve health outcomes. Where needed, we have rightly celebrated the innovation that has come in the medical space to improve health outcomes for smokers. It has prolonged people's lives and supported them to live healthily and smoke free, and that is a wonderful thing.

I would contrast that outcome with the legislative approach, the response of the major parties, to other public health crises in our community. Take, for instance, climate change, which is a public health crisis. The public health flow-through impacts of climate change are profound. My community in WA know this better than most. We have just come through an unprecedented November when we sweltered through an entire week of temperatures above 35 degrees. That combined with roaring winds to create devastating bushfires, particularly in our north-eastern suburbs.

What was the impact of that? People's homes were destroyed. As part of that destruction, communities were terribly impacted. People obviously suffered terrible smoke inhalation and profound distress, but the reality for them now is that they don't have a home. They don't have anywhere to go back to and their memories are gone. The places where they spent decades building their lives are gone. Those precious places were literally razed to the ground.

We know that climate change is the driver of these events. That is not in dispute. There are very many wonderful public health advocates, scientists, advocates and activists who have literally dedicated their lives to presenting to this legislature the way forward to deal with this issue, to bring carbon emissions down, to increase the amount of renewable energy in the system and to make our air and our water cleaner, with all of the positive health impacts that that has. They have laid out plan after plan after plan to do that in a responsible, managed way so that we can protect our community and our environment and mirror the excellent work that has been done by governments and policymakers in relation to issues such as smoking. Yet, what has the response of this legislature and this government been in that case? The response has been to continue to make the problem worse, to continue to approve new gas projects and to continue to approve new coalmines. The Minister for the Environment and Water right now is quite a fan of doing both of those things.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

Senator Steele-John, I ask you to come back to the bill please.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I am coming back to it.

The TEMPORARY CHAIR: It's very tenuous, Senator Steele-John.

It's a fascinating case study. What is the link between these two things, as you rightly bring me back to, Temporary Chair? In the case of tobacco, the Labor Party do not take donations from the tobacco industry. In the case of climate change, they take millions of dollars from the fossil fuel industry. My state of WA and its Labor government are basically run by Woodside. The Northern Territory, it has just been revealed today, did indeed consult—

The TEMPORARY CHAIR: Senator Steele-John, you have strayed very far from the current bill and committee stage. I bring you back please.

I'm very confident of the linkage. We've seen today that the Northern Territory government consulted one group and one group alone in relation to their emissions reduction policy—the gas industry.

As we consider the passage of this legislation it is so critical for the community to observe the link between the money that is donated and the outcomes that we get. In this case of tobacco and smoking reduction policy in Australia we have got good outcomes. One of the reasons why is that not a single dollar is allowed to flow into the back pockets of the ALP anymore. That is a good thing. When we look to the other side of the chamber to the Nationals we see an organisation still happy to take money from these merchants of death—these individuals and corporations, as observed by Senator Shoebridge, to be one of the only entities still in operation that actively kill their customers as they take their money.

Senator Canavan and others in the Nationals wonder why we are a bit suspicious of an amendment offered by your party to a tobacco control bill. So, no, we will not be supporting your amendment. We will be supporting the legislation offered by the government. We will continue to work for a day when fossil fuel donations are no longer allowed to shape policy. (Time expired)

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I was hoping for a right of reply, but I'm happy to defer to Senator Marielle Smith.

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Canavan, for your generosity. I did have some questions for the minister relating to the WHO Framework Convention on Tobacco Control. Minister, I chaired the Senate inquiry into these bills. We had issues throughout the inquiry with the adherence to some of the articles within this convention by witnesses to our committee. I was hoping you could just step us through the obligations under that framework, when we signed up to that framework, and if you could speak to whether it applies to parliamentarians who are captured by that framework.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

Firstly, I thank Senator Smith, not just for the question but obviously for her role in chairing this very important inquiry, as we come together today to debate the Public Health (Tobacco and Other Products) Bill. Every person in the parliament was told about their obligations as an official regarding any engagement with big tobacco and were told not to engage yet we do know that there are members and senators who do still engage, and we are very mindful of that. We have raised that throughout not only this discussion for this legislation but more broadly, even in the work that was done by JSCEM looking at what actually happens when big business does reach out to not only prospective members of parliament but also current members of parliament. We are mindful of that, and I do appreciate the question.

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

Can you just step back to the history of when we signed up to this framework? I appreciate you said MPs had been informed of their responsibility under it but is there anything you could share in the time line of when the Australian government signed up to the framework and when MPs were informed, how they were informed? Is there anything you can share with us on those obligations? Can you also confirm that they apply not just to MPs interacting with the tobacco industry but also to people within our community or participants who might be participating in the democratic process, including through things like being witnesses on Senate committees, providing evidence to Senate committees, people who might be making other forms of submission that find their way into the public domain or indeed into the domain of the work of the Senate. My understanding is that those conventions don't just apply to members of parliament but also to those who we interact with in the course of our work as parliamentarians.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

The Australian government takes Australia's obligations under the World Health Organization Framework Convention on Tobacco Control, the FCTC, very seriously. As a party to the WHO FCTC, Australia is obliged to protect its public health policies with respect to tobacco control from commercial and other vested interests in the tobacco industry. I refer to article 5.3 of FCTC.

The Department of Health and Aged Care has published guidance for public officials on interacting with the tobacco industry to assist public officials in understanding their obligations under article 5.3. The guide outlines the obligations placed on public agencies and officials by the WHO FCTC and provides a best practice framework for the implementation of Australia's commitment under article 5.3 to protect public health policy from commercial and other vested interests of the tobacco and e-cigarette industry. The guide is intended to apply to any official, representative or employee of a Commonwealth government agency, body or entity, or anyone acting on behalf of any branch or level of government. It also includes members of parliament and their staff, limiting interactions between government officials and the tobacco and vaping industries. It ensures transparency of significant interactions that do occur as one of a number of considerations giving effect to these obligations.

The guide also notes that partnerships with the tobacco industry are inappropriate, including accepting offers from the tobacco industry or agents of the tobacco industry to assist with the development of tobacco control legislation or policy or to participate in industry sponsored tobacco control measures. Every member is aware of this, and every member has been written to.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

As it is 1.30 pm, the committee will report to the Senate.

Progress reported.