Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Public Health (Tobacco and Other Products) Bill 2023 and a related bill. The question is that the bill stand as printed.

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

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

On a point of order: I'd just urge the senator to adhere to the standing order on putting into disrepute another senator in the chamber.

Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

Would you care to withdraw the comment?

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

If the minister thinks that I was suggesting any disrepute, then, of course, I will withdraw.

The TEMPORARY CHAIR: Thank you, Senator Ruston. Please continue.

The thing that is particularly concerning is that many of these illicit products have harmful chemicals in them that would not pass muster under a legal regime. They are designed in a way that entices people, because they don't comply with plain packaging. So, unless we actually do something about enforcement—and we're not just talking about border enforcement; we have to address issues of tax avoidance, and we have to particularly address the issue of point-of-sale. This requires enforcement at all levels of government, and it requires enforcement in a coordinated way amongst various departments, because we know that there's more than one department in Canberra that is responsible for enforcement as it relates to illicit and illegal tobacco and other products, including vaping.

In line with this priority, the amendment that I have just moved, the coalition's amendment, will seek to establish a commissioner for illicit tobacco and e-cigarettes to make sure that we have a coordinated approach to how we address enforcement, to make sure that we are enforcing the development and implementation strategies that were agreed on, including the national illicit tobacco and e-cigarette strategy that was released by the government earlier this year, and to make sure that we have got strategies that are going to really address the illicit tobacco and e-cigarette market and, in doing so, develop a national framework so everybody knows what everybody else is doing.

In doing that, we can detect, deter, investigate and enforce the laws that relate to e-cigarettes.

That's what we are seeking to do, and I commend this to the chamber. It also provides, to enable with greater administration of government support, that national law enforcement is consistent. We also need to make sure our law enforcement agencies are properly supported in the implementation of the strategy. It's simply not good enough to have a strategy unless you've got a mechanism or a vehicle through which you're going to deliver it, and we seek for the commissioner to be that strategy.

Most particularly, we want to make sure reports are prepared and published on the website around issues of the prevalence and consequences of the illegal tobacco and e-cigarette trade in Australia. As we saw this morning, the government has got no idea what the illegal and illicit market is. We will be seeking for this agency to be able to gather the data to enable us to understand the magnitude and to see what are the mechanisms that are pushing people from the legal market into the illegal market—whether they are or whether they aren't. At the moment the lack of information we have means we are flying a bit blind on what the likely outcomes of this particular piece of legislation are likely to be. We believe that, until there is a comprehensive, coordinated national enforcement set of laws, strategies and framework, and a vehicle through which it can be delivered, we will continue to see the challenges we are seeing in the black market at the moment. We know the black market is getting bigger and bigger. Just about anybody who can provide you with any advice will tell you that we just haven't quantified it to this stage.

We are arguing that the biggest issue facing Australians and the biggest challenge to our health system in terms of the health outcomes of people who smoke cigarettes and vape is the lack of enforcement. I suggest to the government: if you want to retain any credibility in relation to protecting and pursuing real public health outcomes, it is absolutely imperative that you have a vehicle that is completely and utterly dedicated to and designed for addressing illicit and illegal tobacco in this country. In the absence of doing that, this particular bill is not worth the paper it's written on. I commend the amendments to the chamber.

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

Progressing further with the responses I gave the senator this morning in terms of the ATO and the Illicit Tobacco Taskforce, I say that the government supports the coalition's intention to combat the trade in illicit tobacco and e-cigarette products. The government is expanding compliance activities to address illicit tobacco, and we are working on finalising these details and will have more to say in the very near future.

This builds on existing significant investments the government has made in compliance measures, including as part of the October 2022-23 budget. The government extended the existing ATO shadow economy compliance program for a further three years from 1 July 2023. The ATO led program received $240 million in departmental funding from 2023-24 to 2025-26, with an estimated increase in tax receipts of $2.1 billion. The extension of the shadow economy program will enable the ATO to continue a strong and coordinated response to target shadow economy activity, including illicit tobacco, to protect revenue and level the playing field for those businesses that are following the rules.

As part of the 2023-24 budget the government also provided the ATO $223.9 million in funding to extend and merge the Serious Financial Crime Taskforce and the serious organised crime program over four years to 30 June 2027. This will maximise the disruption of organised crime groups, including those involved with illicit tobacco.

The Serious Financial Crime Taskforce and the serious organised crime program are currently separately funded ATO-led cross-agency collaborations between the ATO, national policing and other law enforcement and regulatory agencies targeting serious and organised crime groups, and serious financial crime and tax evasion. The government estimates that this will bring in $753.9 million in revenue and $279.5 million in receipts in the four years to 30 June 2027, including $32.7 million of GST paid to the states and territories.

The Illicit Tobacco Taskforce continues to combat illicit tobacco and brings together capabilities of the ATO, the ABF, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, the Commonwealth Director of Public Prosecutions and the Department of Home Affairs. In the 2023-24 income year there have been 69 seizures and convictions so far, as at 30 September 2023, with an estimated excise duty value of $18 million. This strong comprehensive action, complemented by enhanced compliance and enforcement activity across all governments, will turn the tide.

I am aware that Senator Canavan raised this in his questions earlier. The vaping reforms were the focused of a joint meeting of all Australian health and police ministers on 23 November. At this important meeting, ministers agreed to task officials with developing a national enforcement framework for vaping products, to stamp out unlawful vapes in the community and prevent illegal markets from emerging. It was agreed that a multi-agency national vaping working group be established to oversee development and implementation of the national enforcement framework. All of this comprehensive action, complemented by enhanced compliance and enforcement activity across all governments, will turn the tide against the rising use of vapes by young Australians and will reduce overall tobacco use. So the government supports the coalition's intentions.

Question agreed to.

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

At the end of the debate before, a number of accusations were made about the National Party, me and others. I just want to reply to those things and to bring people up to speed as to where we're at. Senator Steele-John made a big deal of the National Party taking donations from what he calls big tobacco. I hope we have a debate about the merits, not the motives, of policies. If your arguments are good enough against something, you should be able to argue that what someone is saying is wrong; that what I'm proposing here through this committee stage—creating a legal regulated vaping market—will be bad for people and will be bad for the country. You can make those arguments; that's fine. But whenever we start resorting to saying, 'You've bad motives and you're only doing this because of X, Y and Z,' we can't really have a debate then. We're trying to read people's minds, and that will mean that we'll never have a useful, constructive debate.

Two, of course, can play this game. I could of course—and I don't—make the claim that the Greens political party take millions of dollars in donations from renewable energy. They do; that's a matter of record. They just happen to also support large-scale government subsidies for renewable energy—for the same companies that they take millions of dollars of donations from. I don't say that they do that because of the donations they take. I don't want to engage in debate about their motives, because I'd much prefer to point out how hopeless renewable energy is. It's terrible. It's destroying our country. It's deindustrialising our nation. I don't need to question their motives. I'll debate the merits, not the motives, of what the Greens are proposing.

The very fact that the Greens have not been able to question the merits of my proposals here and have had to resort to personal attacks on people's motives shows that they don't really have good arguments about why we shouldn't create a legal regulated market. If they did, they would make those arguments. But their weakness, their lack of strong points of view here, is shown by them resorting to base personal attacks on people's motives, integrity et cetera rather than actually pointing out the flaws in any process.

Regardless of that, I'll extend a little bit of an olive branch to my colleague Senator Steele-John. I welcome his viewpoint, which I think I recall. I apologise: the debate was now that many hours ago. I'm not recounting it verbatim but I believe that Senator Steele-John did indicate that the Greens political party will be looking at considering issues around vaping in the legislation to come forth next year from this government. I didn't hear Senator Steele-John dismiss any idea that there should be, maybe, some consideration here. We heard earlier from Senator Shoebridge his view that we should have a legal cannabis market, a regulated cannabis market. I'm not going to go through all my views on that, but clearly, if you're going to support that and you think adult Australians should be able to freely purchase cannabis in this country, I find it hard to believe that you would not also similarly support an Australians' right to vape liquid nicotine. It seems completely nonsensical that you would not have a similar arrangement.

As I say, I don't get engaged in personal attacks about the Greens' motives. They are free to put forward whatever policies they like in this place, and of course, I'm free to disagree with them and point out their flaws. I'm happy to have respectful conversations and constructive dialogue about how we can make sure that adult Australians are not turned into criminals in this country just for having an addiction to nicotine and for wanting to choose to assuage that addiction through a product that is much less harmful for them than smoking and much, much cheaper.

I also want to reply to some comments made by Senator Marielle Smith. I generously gave her the call—some Labor senators hadn't had the call for a while—and she proceeded to attack me in response to that generosity, but that's okay. Senator Smith's view was that I'm a bad person because I meet with big tobacco companies. Apparently, we signed some agreement with the WHO that we're not allowed to meet people! I wasn't a signatory to that agreement. I can't remember signing anything, and I'm certainly not going to listen to the WHO on matters, given their record on coronavirus, which was absolutely shocking. Don't forget they originally told us that coronavirus could not be transferred to people by person-to-person transmission. Do you remember that, Senator Roberts? They told us not to close our borders with China. Remember that? That was great from the WHO. So I'm certainly not going to listen to that body. Regardless, I didn't sign that agreement.

It surprised me—I didn't realise—that government officials apparently don't meet with so-called big tobacco companies. But hang on a second—if these people are so bad, if they are selling such a terrible product, why don't we just ban it? If it's so bad, you could ban smoking. You could do that. Instead of this tobacco control, just bring in a tobacco prohibition bill if it's so bad. Apparently, these people are very bad people, but we're going to allow them to sell a legal product. It's a legal product that is allowed. Not only that—we don't finish there—we're going to raise billions of dollars of excise from the sale of these products. In the break, I checked the figures. Apparently, the government says it doesn't have a relationship with big tobacco. It doesn't meet with them. It doesn't recognise them. Yet it will get $12.9 billion from big tobacco this year in excise. That is some relationship, isn't it? That is a pretty big relationship. The government gets $13 billion a year in excise from big tobacco, but it says: 'We can't meet with them. We can't even talk with them.' That money might be why the government doesn't want to ban tobacco. That might be why the government doesn't want to have a legal vaping market. If people are allowed to vape, they won't be paying $13 billion in excise to the government. Maybe this is all just about fleecing Australian people who are addicted to nicotine. It has nothing to do with health issues at all. It's the government that is addicted. It is addicted to massive revenue streams from big tobacco. Maybe it is about that.

We also learned from Senator Smith's contribution why the government can't seem to control the illegal chop-chop market. We have a massive problem with this. Senator Ruston has gone over this in great detail, and I applaud her on her amendment that was just passed to this bill. We have a massive issue with this. This market has grown from something like 10 per cent a few years ago to recent estimates that about a quarter of Australians who are smoking are now getting cigarettes illegally. We don't really know. The government doesn't really know, of course, because it's an illegal market, but certainly there has been significant growth in chop-chop, in criminal activity around this trade, over the past decade.

Maybe one of the reasons this has happened is that, apparently, and I am going to get to a question—I'm going to ask the minister whether the government meets with Philip Morris or any of these companies.

Because if you want to control the illicit market, wouldn't you talk to the people in the legal market about what is going on, what the intelligence is and what's happening? They probably know something about that. I've got no problem saying I talk to them; I do. They're a legal company in this country. I'll talk to anybody. I talk to Green activists, I talk to everybody. I'm happy to—it's my job as a senator. They tell me stuff about the illicit tobacco market—it might be right or it might be wrong but I'm certain they would have some intelligence about what's happening, given that they're the ones operating in this market and their customers have some interactions with these products. I ask the government: if you're not meeting with them, how the hell do you know what's going on with the illicit tobacco market? Are you at all serious about trying to control that market if you're not getting market intelligence from the people that are operating in that market? It's absolutely absurd. It's like saying we want to try to control alcohol consumption but we're not going to talk to pubs or bottle shops—we're just going to operate in some sort of vacuum when nobody knows what's going on. It's ridiculous.

I would like to know what exactly the government is doing to control illicit tobacco, how they find out what's happening in the market and who they talk to, because it seems to me this is a big reason why. We are resting on our laurels here as a country. We keep talking about what a great country we've been in controlling smoking rates, and there's no doubt that's true, but we're living off the legacy of former governments who have done that. The reality is that over the past decade smoking rates have not fallen that much—they've largely plateaued—yet they have fallen significantly in other countries that have allowed a legal vaping market to emerge. We are missing the boat here on what we should be doing to further reduce the terrible habit that is smoking and the terrible diseases and health outcomes that come from smoking tobacco, which is very different from liquid nicotine.

What are the government doing here? Do they actually speak to people in the market? How do they know what's happening with illicit tobacco if they're not talking to the legal entities they tax and raise money from in the market itself?

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

Thank you, Senator Canavan, for your question. As a reminder to the Senate, the coalition did sign up to the WHO framework in 2005, and we certainly abide by the article, so I think it's really important that the Senate is aware that both the coalition and this government are abiding by the WHO framework.

Let's remember that the debate before the Senate is about cigarettes, not vaping, and the bills before us is about one thing: ensuring plain packaging—

No, let me finish, Senator Canavan. We all sat in silence and listened to you. These bills capture vaping advertising—otherwise, they are exclusively about cigarettes. There was no doubt that the witnesses and submissions that came before the inquiry also included those from the tobacco industry. So, senators, let's remember: the piece of legislation before us has gone through the Senate committee, and all of those involved in the industry have had an opportunity to speak to this piece legislation.

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

I will just point out that the minister's claim that the only part of the bill that deals with e-cigarettes is in the provisions to ban advertising of e-cigarettes, on page 3 of the bill, in the objects of the bill, under the heading 'means for achieving objects', paragraph 3(2)(a) says it is also about 'limiting the exposure of the public to communications, recommendations or actions that may persuade people to … start vaping or continue vaping'. Paragraph (3)(2)(b) reads 'reducing the appeal of regulated tobacco items and e-cigarette products to consumers'. The objects are full of references to e-cigarettes. So if you're going to put e-cigarettes in the objects of your bill, it's perfectly relevant to ask questions and raise points about e-cigarettes. Your bill wants to try and reduce the use of vaping. One of the objects of the bill is also to reduce the use of smoking, and I am of the view that one way we can do that is to seek and encourage people to switch from smoking to e-cigarettes, which are much better for their health.

Can the minister outlined where in the WHO framework it says that politicians can't meet with big tobacco? Because I've had a look at it, and it seems to me—and I have been told by others—that it does give scope for governments to meet with tobacco companies.

I think they call it the 'tobacco industry' in terms of big tobacco. You can meet with the tobacco industry for the purposes of public policy, which makes sense given the points I was making earlier. Can the minister outline exactly where in the convention it says we cannot meet at all with such bodies?

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

I can certainly point out to Senator Canavan in actually repeating what I said earlier that we know that the tobacco industry gave evidence to the Senate inquiry and, in terms of being in line with article 5.3, public officials interact with the tobacco industry when and to the extent strictly necessary for effective negotiation.

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

So it says you can meet with them.

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

Well, public officials can, and I did say that in my earlier response.

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

I'm a public official.

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

In fact, you could get the Hansard on that, Senator Canavan. If you had been listening, you would know I actually read from the document that outlines all of that. We have gone through this. I have reiterated that this is about plain packaging. The debate before the Senate is about cigarettes, not vaping. I do believe I have answered these questions.

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

I'd just like this right of reply. You had a Labor senator get up and call into question the integrity of coalition politicians for meeting with big tobacco. That's what happened. That's what happened a few hours ago. No number of weasel words will remove from the record that your own senator got up and called into question the integrity of Liberal and National politicians for having the temerity to meet with the tobacco industry. Now you have just admitted under questioning that the WHO convention framework that you referenced says that public officials—and I'm a public official; I am under all the legislation—can meet with the tobacco industry for the purposes of public policy as I just said. So you need to be called out for this because you can't come into this place and call into question others' integrity without being held to account. You were misleading the Senate before by doing so. You were absolutely misleading the Senate by—

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

Temporary Chair, on a point of order: there was no misleading the Senate in this debate. Had Senator Canavan been listening to my previous response to Senator Smith he would then see the context in which I made those comments about the responsibilities of members of parliament and public officials.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

Temporary Chair, that is not a point of order. That is a debating point. The senator has the opportunity to refute what Senator Canavan has said when Senator Canavan no longer has the call. So to interrupt him in that way disrupts his ability to speak in this debate.

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

I do take umbrage with the fact that the comments were made about a senator who is not present who put a question earlier. So I would suggest that that same response is required in this situation.

Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

We are bouncing around on an issue I was not in the chamber for. I think maybe having a look at the Hansard and checking the details of what has been said might be the way to go from here, Senator Canavan. Please advise if you are comfortable with that.

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

I'm just not quite clear. I would have thought I'm perfectly within my rights as a senator to say someone has misled the Senate—

The TEMPORARY CHAIR: Absolutely.

and then it is a matter for others to respond. The minister is right: Senator Smith is not here right now. But I know many times I have been completely trashed in the Senate when I've not been here. Sometimes when I'm leaving the building people are getting stuck into me. Sometimes when I'm leaving the chamber someone will get stuck into me. That's part and parcel of debate. I'm just making a point here that, in my view, Senator Smith and Senator McCarthy, who was not fulsome in her response to the Senate about the provisions in the WHO convention, were calling into question the integrity of Liberal and National politicians on this side. I think they have been adequately called out because now the minister is flailing around with points of order which are clearly not being upheld to try, as Senator O'Sullivan said, to interrupt the debate here. I'm happy to move on. I just wanted to make those points and to reply. I do have some other questions for the minister, but I realise Senator Roberts has been waiting patiently, so I'll come back after him.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, at the outset, let me say that One Nation does support the hard work that's been done to bring this together from many different bills, regulating smoking into one piece of legislation, and I compliment those who have produced a bill that includes the previous coalition government that started the work, yet that only extends to consolidating existing governance. Today my questions go to the actual measures being promoted in this bill. In my opinion we need to pick up the health agenda. I need to understand why the government is adopting a counterproductive strategy that undermines health and trust. My questions go to four topics—quitting smoking, the results of quitting-smoking campaigns, price increases on tobacco and vaping.

First question, Minister: the previous Labor government introduced measures that were designed to reduce smoking. These were putting scary photos on cigarette packs, reducing pack sizes, banning advertising and sponsorship and using plain packaging. Minister, what data do you have to support the idea these measures actually reduce smoking rates and that amplifying those measures will cause more people to quit smoking faster?

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

Thank you, Senator Roberts, for your question. The measures in the bill do aim to encourage people to give up smoking and to discourage people from taking up smoking in the first place—I think that's really important to remind the Senate about.

These measures are just one part of the comprehensive, evidence based approach to tobacco control in Australia, which includes the 2023-24 budget commitments to support education campaigns, improve cessation support and extend the successful Tackling Indigenous Smoking program.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I asked for the data. You didn't give me any. You said though, as quite often happens in this House, your policy is 'evidence based'. So let me ask a second question which relates to the effect of selective perception in respect of the use of scary photos to dissuade smoking. For clarity, selective perception is defined as:

the process by which we focus our attention on certain stimuli while ignoring stimuli that … contradicts our values and expectations. According to selective perception theory, we consciously and unconsciously filter out information.

Minister, when scary photos were proposed there was a strong academic argument against their use on the basis that people would filter them out. Here we are, ten years on, promoting an extended use of scary photos—that's basically what your bill does. Minister, what work has the department done to prove scary photos are not being filtered out? Can you prove scary photos are not useless? I would like some data.

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

Did you say 'scary photos are not useless?' Was that the last bit of your question?

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I said the scary photos have not been productive so far in accelerating any quitting-smoking campaign.

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

Thank you, Senator. I could use personal anecdotal responses—but I won't—especially coming from our First Nations communities, about the impact that it has had on family members and others who have stopped smoking as a result of what they've seen. The impact of the bill will be evaluated in line with the Commonwealth Evaluation Policy. Evaluation measures are set out in the impact analysis prepared for this bill and will seek to measure declines in overall consumption.

Consideration of tobacco prevalence data—and I know you're always interested in data—is data from the National Health Survey, the National Drug Strategy Household Survey and the Australian Secondary Students' Alcohol and Drug Survey. I'm just reinforcing some of the data that I know that you're interested in. Other available sources may also be considered such as the data from Customs and the Australian Bureau of Statistics's state and territory government smoking-cessation surveys conducted by or for public health experts.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Thank you, Minister. You said, 'seek to measure,' implying in future. I asked for the past data on which this is based—current data. A literature review conducted by my staff has found many papers show a link between scary images and smokers being more scared. So far, so good.

They find that nonsmokers react to the images as expected while smokers filter the message, reducing the fear factor in whole or in part. This proves that selective perception is at least in play if not undermining the whole concept of scary pictures. In other words, smokers don't see the scariness in the scary pictures.

None of these studies show a direct causation between scary photos and smoking reduction. Minister, is this measure something that sounds good in theory but actually doesn't work in practice? Or hasn't anyone bothered to do the work to prove that it works?

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

I seek the call and say in answer to Senator Roberts that—

Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Pratt. Please resume your seat. Minister?

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

Senator Roberts, these are probably some of the best questions I've had all day on this bill, so thank you for your interest in that. Scary photos: I think this is really important, because it comes to the heart of what this piece of legislation is all about—plain packaging, and the concerns that have been raised throughout the Senate inquiry. Perhaps I could refer to the previous answer, where I talked about the Australian Bureau of Stats as one of the areas that we go to for data. With scary photos, young people were less likely to be current daily smokers, at a rate of 7.1 per cent. Then in 2011-12 it was 16.5 per cent. Plain packaging came in in 2012, so we are conscious that there is strong correlation there.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Let's get to the meat of the question, now that I understand that there is little data to back it up. The committee report makes this statement: 'According to the Australian Institute of Health and Welfare, 11 per cent of Australians smoked tobacco daily in 2019, which is a decrease from 12.2 per cent in 2016.' This the same claim the minister made in his second reading speech. However, the 2019 National Drug Strategy Household Survey found that the figure for 'smokes every day' was 12.8 per cent, not 11 per cent—no drop. That data further shows that the figure for people who consider themselves to be a current smoker is 14.7 per cent. This is an increase in smokers, not a decrease. The minister may be using the 2020-021 survey, which does show that figure.

However, the Australian Bureau of Statistics, from which you sourced a minute ago, has a qualification on the 2020-21 data which reads: 'The National Health Survey 2020-21 was collected online during the COVID-19 pandemic'—their word, not mine—'and is a break in time series. Data can't be compared to previous years.' I'm concerned that this bill uses invalid data to justify an expansion of measures introduced by Labor in 2012. The messaging around this bill has a misinformation feel to it. Minister, is the actual rate of smoking in Australia 11 per cent or 12.8 per cent?

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

As I said in my summing-up speech today, when the Hon. Nicola Roxon introduced plain packaging, around 16 per cent of Australians smoked, and today that rate is down to just under 11 per cent.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, my data is contained in a paper that was last updated in June 2023 by the Cancer Council of Victoria and is their dataset titled, 'Tobacco in Australia: facts and issues'. The dataset is funded by the Australian government Department of Health and Aged Care; this is your data. I'll keep talking about your data out of this data source, and hopefully someone over there has it to hand. One would have thought it useful in the committee stage of a bill about tobacco in Australia.

Moving on to graph 1.3.1, this graph shows a perfect exponential decay in the rate of smoking every day, suggesting that the quit rate is slowing. What this data calls for is new ideas, not more of the same ideas that are currently not the reason for the reduction in smoking. Minister, what else have you got? What other ideas does your department have to reduce smoking rates? And why are they not in this opus of a bill? Clearly scary photos are not working. The quit rate is decelerating, decreasing.

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

I believe I've answered the questions.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, can I now refer you to graph 1.3.7, which shows the prevalence of current smoking in Australia, the United States, England, the United Kingdom, New Zealand and Canada. This graph shows that a steady—not accelerating—reduction in smoking rates has occurred not only in Australia but in other Commonwealth countries and at about the same rate. Minister, is this more proof that scary pictures are a stunt, and something else is behind the reduction in smoking?

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

I refer to my previous response.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Let's change topic, then. In review, the government has no idea what works and what doesn't and has no new ideas—just more of the same, which, of course, keeps public servants and non-government organisations in taxpayer-funded jobs for another year. Minister, you have no new ideas. It's more of the same failed policy approaches. How much does this cost taxpayers? How much is spent on the antismoking industry in Australia every year?

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

I totally reject the senator's accusations that we have no new ideas, when we are trying to improve the lives of Australians in this country, especially youth—children. We see this in our schools, Senator. So please do not come in here and say we have no new ideas. We know from the cancer rate in this country that smoking is the leading cause of disease. We know that lung cancer is the lead cancer for that. These laws, let me remind the Senate, are about plain packaging. They're about ensuring the safety of our young children—our young Australians—so that they do not get caught up in a world of smoking tobacco, which is quite easy to get caught up in. We have to be sure through this legislation that plain packaging makes a very real difference to the lives of our fellow Australians.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Thank you, Minister. I happen to like you and respect you, but your use of emotion and young children does not cut it. This is my point. The government has committed $511 million over the forward estimates and $101 million ongoing towards a range of measures calculated to help reduce smoking and vaping. These consist of $264 million over four years and up to $101 million per year, ongoing, to establish and maintain a national lung cancer screening program, through which at-risk Australians will be able to get a lung scan every two years. There will be $141 million over four years to expand the Tackling Indigenous Smoking program to include tackling vaping. There will be $63 million over four years for national public health campaigns to discourage people from smoking and vaping, including additional funding provisioned in the contingency reserve for a targeted youth campaign. There will be $30 million over four years to increase and enhance smoking and vaping cessation support. And there will be $13 million over four years for legislative and regulatory reform, as well as testing tobacco products for prohibited ingredients and increasing inspections of manufacturers, importers, wholesalers and retailers of tobacco and vaping products.

Wow! That's an industry—$500 million over the forward estimates, or half a billion dollars. It's an industry, and it's being protected by worthless measures like the ones this bill is proposing. Thousands of bureaucrats, non-government organisations, not-for-profits and miscellaneous opportunists are kept in a job by the size of government's spending. This will do nothing to reduce smoking. We've already seen the data from your own department, which says it's just decelerating at a steady rate. It's not accelerating. It's just decreasing at a steady rate—the same as in countries overseas. Will this bill guarantee all these other measures? Will it be funded for another four years, despite doing nothing to reduce smoking? Was this bill designed in the knowledge that it would keep the antismoking industry in work for another four years?

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

I totally reject, from the outset, your accusation that this will not do anything to assist our fellow Australians. The fact that we are putting $253.8 million into a new national lung cancer screening program should say something in this debate, shouldn't it, Senator? And the fact that we're putting $238.5 million into supporting the Aboriginal and community controlled health sector is not, I would say, a worthless approach and initiative in trying to decrease the rates of cancer and smoking among First Nations people in this country. I totally reject your allegation.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

An emotional argument does not take the place of data. I have never had a cigarette in my lips—never. My children have never had cigarettes either. Let's move to what really drives decreases. The excise on tobacco products has been steadily increasing every year, coinciding with the reduction in smoking rates. Senator Canavan talked about it. Turkiye, which I mentioned before, has the highest smoking rate in the developed world. A pack of Marlboro cigarettes costs US$1.62. That's for a whole pack of 20, not for a cigarette. In Australia the same pack is $25.88 on a best-price comparison basis. The next dearest country for smoking is the United Kingdom, where that same pack costs $15.83. We are more than 50 per cent dearer for cigarettes than any other developed country, and the price has been going up steadily in proportion to the reduction in smoking rates.

Minister, isn't it true that the real reason smoking rates are falling is that they get dearer every year, and the real reason that the number of people giving smoking away is decreasing slowly is that those smokers who are left can afford it more?

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

I'd just remind the Senate and the senator that this is a public health policy and we are talking about plain packaging.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I'm talking about the industry that the bill will feed and continue to feed. Minister, I note that the explanatory memorandum and the second reading speech both try to make the point that Australia is falling behind other nations. Actually, amongst developed nations Turkiye has the highest smoking rate: 41 per cent amongst males. Australia, with 12 per cent, is 29th. Only eight nations have a lower smoking rate than we do. Only two—Iceland, at eight per cent; and Norway, at six per cent—are significantly better. Clearly, the contention that Australia is falling behind the world is outright misinformation. We are close to leading the world.

For clarity, we are close to leading the world because we have priced cigarettes into the stratosphere, not because of scary pictures on boxes or the other Roxon measures. Minister, is this legislation just more of the same to keep the Labor aligned antismoking industry going while at the same time allowing your government to go to the electors and pretend to have done something about smoking? Is this why you exempted yourselves from your own misinformation bill?

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

In 2011, under Nicola Roxon, we did lead the world with the reforms that went through both his house and the other house. For the past nine years we've needed more work done, and that's why we're bringing in this next critical step in the fight against tobacco and nicotine addiction. I urge the senator and the Senate to remember that this is why we're here. This legislation is about plain packaging, so that we can once again be world leaders in the way that we conduct ourselves in terms of this public health policy.

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

I move my amendment on sheet 2217:

(1) Page 130 (after line 9), after Chapter 3, insert:

Chapter 3A — Vaping regulation

Part 3A.1 — Introduction

124A Simplified outline of this Chapter

This Chapter regulates e-cigarette products that contain nicotine to reduce the health risk to consumers by prescribing the amount of nicotine that can be used in e-cigarette products and prohibiting the use of harmful chemicals in e-cigarette products. Plain packaging and health warnings will also be required on all e-cigarette products.

This Chapter also makes it an offence to sell e-cigarette products to minors.

Part 3A.2 — E-cigarette product regulation

124B E-cigarette product requirements

E-cigarette products manufactured, imported, distributed, supplied or sold in Australian must comply with the requirements in this Chapter.

124C Nicotine

(1) Nicotine for use in e-cigarette products is removed from and cannot be included in the Poisons Standard made under Therapeutic Goods Act 1989.

(2) Subsection (1) has effect notwithstanding anything in the Therapeutic Goods Act 1989 or the Poisons Standard made under the Therapeutic Goods Act 1989 at the date this section takes effect.

(3) The regulations may prescribe the nicotine concentration that must not be exceeded in e-cigarette products.

(4) In this section:

Poisons Standard means the current Poisons Standard as defined in the Therapeutic Goods Act 1989.

124D Harmful chemicals

The regulations may prescribe chemicals or ingredients that are harmful to health (other than nicotine) that must not be included in e-cigarette products.

124E Appearance and physical features of e-cigarette products

(1) The appearance and physical features of the retail packaging of e-cigarette products must comply with the requirements (if any) prescribed by regulations made for the purposes of this subsection.

(2) Without limiting subsection (1), the regulations may prescribe requirements in relation to:

(a) the colour and finish of retail packaging;

(b) mandatory health warnings;

(c) prohibited terms and other marks;

(d) prohibited images;

(e) restrictions on the use of brand names or variant names; and

(f) flavourings and the use of flavour descriptors.

Part 3A.3 — General offences and civil penalty provisions for non-compliant e-cigarette products

124F Selling or supplying e-cigarette products to minors

(1) A person contravenes this section if the person sells, offers to sell or supplies an e-cigarette product to a person under the age of 18.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty:

(a) in the case of a natural person—60 penalty units; and

(b) in the case of a body corporate—600 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

124G Retail of e-cigarettes products in non-compliant packaging

(1) A person contravenes this section if the person manufactures, packages for retail sale, sells, offers to sell, supplies or offers to supply an e-cigarette product that does not comply with subsection 124E(1).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty:

(a) in the case of a natural person—60 penalty units; and

(b) in the case of a body corporate—600 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

Chapter 3B — E-cigarette product take back scheme

Part 3B.1 — Introduction

124H Simplified outline of this Chapter

This Chapter requires e-cigarette product manufacturers, importers, distributors and retailers (relevant suppliers) to establish collection points for the collection of used e-cigarette products. Relevant suppliers are required to maintain an electronic register of collection points that is accessible by the public. Relevant suppliers are responsible for the collection of e-cigarette products from collection points.

E-cigarette products must contain a deposit marking which states that the product must be returned to a collection point.

A relevant supplier who disposes of an e-cigarette product at a landfill site, or in any other prohibited manner, commits an offence.

Part 3B.2 — Definitions

124J Definitions

In this Part:

automated collection point means a collection point that consists of a machine or other device that involves inserting used e-cigarette products into the device, whether or not some other action is required to activate the device.

collection point arrangement means an arrangement between a relevant supplier of e-cigarette products and a retailer under which the relevant supplier collects used e-cigarette products from the retailer.

collection point means a designated place where a consumer may deposit the relevant supplier's used e-cigarettes product and includes an automated collection point.

relevant supplier in relation to an e-cigarette product means a manufacturer, importer or distributer of e-cigarette products.

used e-cigarette product means an e-cigarette product ordered, purchased or used by a consumer, and includes an e-cigarette product that remains in its original packaging.

Part 3B.3 — E-cigarette take back scheme

124K Relevant supplier must establish collection points and collect e-cigarette products

(1) A relevant supplier of e-cigarette products must establish collection points in accordance with the requirements (if any) prescribed by regulations made for the purposes of this subsection.

(2) Without limiting subsection (1), a relevant supplier of e-cigarette products may establish a collection point under subsection (1) by entering into a collection point arrangement with a retailer.

(3) A relevant supplier of e-cigarette products must collect the relevant supplier's used e-cigarette products collected at collection points that the relevant supplier has established under subsection (1).

Offences

(4) A person commits an offence if:

(a) the person is a relevant supplier of e-cigarette products; and

(b) the person has not established collection points in accordance with subsection (1).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

(5) A person commits an offence if:

(a) the person is a relevant supplier of e-cigarette products; and

(b) the person refuses or fails to collect the person's used e-cigarette products from a collection point in accordance with subsection (3).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

124L Requirements for collection point arrangements

A collection point arrangement must meet the requirements (if any) prescribed by regulations made for the purposes of this section.

124M Relevant supplier of e-cigarette products to maintain a register of collection points

(1) A relevant supplier of e-cigarette products must maintain a register of collection points that the relevant supplier has established under section 124K.

(2) The register must be:

(a) kept in an electronic form on the relevant supplier's website; and

(b) accessible by the public; and

(c) searchable.

(3) The register must include the following in relation to each collection point:

(a) the location;

(b) the hours the collection point is accessible to the public;

(c) any other information prescribed by regulations made for the purposes of this paragraph.

124N Requirements for collection point arrangements

None of the following communications, of themselves, constitute an e-cigarette advertisement:

(a) notification to consumers that an e-cigarette product may be returned to a collection point;

(b) notification to consumers of incentives to return e-cigarette products to a collection point.

124P E-cigarette product must bear collection point return markings

(1) An e-cigarette product must contain, on its external packaging, a written statement that:

(a) states that the e-cigarette product must be returned to a collection point; and

(b) includes a hyperlink to the website with the relevant supplier's list of collection points established under section 124K; and

(c) any other information or graphics prescribed by regulations made for the purposes of this paragraph.

Note: Chapter 3A sets out additional packaging requirements for e-cigarette products.

(2) A relevant supplier must not sell an e-cigarette product to another person to use or consume, or to sell for use, consumption or further sale unless the container displays the markings required by subsection (1).

Offence

(3) A person commits an offence if the person contravenes subsection (2).

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

Part 3B.4 — Disposal of e-cigarette products

124Q Offence to dispose of an e-cigarette product

(1) A person commits an offence if:

(a) the person is a relevant supplier of e-cigarette products; and

(b) the person disposes of the person's used e-cigarette product:

(i) at a landfill site; or

(ii) in any other manner prohibited by regulations made for the purposes of this subparagraph.

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

(2) A person commits an offence if:

(a) the person is a retailer; and

(b) the person disposes of an e-cigarette product:

(i) at a landfill site; or

(ii) in any other manner prohibited by regulations made for the purposes of this subparagraph.

Penalty:

(a) in the case of a natural person—2,000 penalty units; and

(b) in the case of a body corporate—20,000 penalty units.

In doing so, I will briefly outline what it pertains too. I went through this in brief during my second reading contribution as well. The amendment does three simple things. Firstly, it removes liquid nicotine from schedule 4 of the Poisons Standard. I note that, at the moment, schedule 4 means that to obtain liquid nicotine you need to do so with a prescription in this country.

So it's listed with lots of other drugs that are prescription-only medicines. That approach is clearly not working, because a lot of pharmacists are simply not stocking liquid nicotine. When I asked a question earlier, the minister could not even say what percentage of pharmacies stock liquid nicotine or vaping products. Clearly, a lot of pharmacists don't want to be in the business of supplying liquid nicotine. That's their right; we can understand that. They're in the business of health products. Liquid nicotine is a drug. There's no doubt about that. It's a drug that I don't think should be encouraged. But as it has been clearly proven over the last few years as this regime has been in place—it's been added to schedule 4—it's not been working.

Of course, I should add that tobacco, which is a much more harmful drug than liquid nicotine, is not in schedule 4 of the Poisons Standard. It's therefore much more freely available to any adult over the age of 18 at service stations and supermarkets. Pretty much wherever you like to go in Australia, if you're over 18, you can get tobacco, but liquid nicotine is on the Poisons Standard. That seems out of whack to me, so my amendment would move that. I recognise if we were to remove it from the Poisons Standard it shouldn't be a free-for-all. We shouldn't allow liquid nicotine to be sold everywhere just like any other product. We have a very good regime in this country—a ready-made regime—to regulate the sale of liquid nicotine and e-cigarettes. We just have to do what we do with smoking. It works. It's a good system, where we require cigarettes to be behind locked cabinets and not on display. We don't have any flash packaging. It's all plain packaging. I think the one difference in the case of e-cigarettes is that there would be a need to regulate the flavourings and descriptions of those, although we do have similar regulations with smoking with regard to the content of nicotine and the various flavours allowed as well. So we can do all of those things.

The second part of my amendments gives the minister power to regulate all of those aspects of the vaping market and to do so in a way similar to how smoking is regulated in this country. We absolutely should crack down on any sale of vaping products that are clearly marketed to children—these fairy floss, candy-type flavours that are infesting the black market, as we currently see. Let's focus our efforts on getting rid of those and keeping them away from our kids and from being attractive to our children rather than trying to regulate the choices of all adult Australians. I should add that I've missed part of that second part. Of course, my amendments would make it a crime to sell e-cigarettes to minors, and penalties associated with anyone who does so would be equivalent to those that are there for smoking.

Finally, the third part of my amendments would establish an industry fund. Those who are selling e-cigarettes would have to fund a disposable vapes collection scheme. There is a problem emerging from the amount of waste being generated by disposable vapes. Most of that waste currently comes from a black market, and therefore the disposal of those vapes is completely unregulated. It's going into general waste and causing a lot of issues there. This would set up an industry funded scheme, which would require collection points to be established where vapes are sold, where people could drop off their disposable vapes and make sure they are disposed of in an environmentally safe way. I recognise and thank Senator Steele-John for indicating earlier that the Greens are somewhat attracted to looking at that type of scheme.

I'm trying to move the debate forward here. Obviously, I'm going to go down in a ball of flames—like I'm used to doing in this place—but I'm just trying to move the Overton window on this a little bit, because there's a lot of rhetoric and a lot of slogans right now about wanting to prohibit vapes and get rid of them. I think it's just completely unrealistic. We are not going to move to a world where people do not vape. We have too many people doing it now. The genie is out of the bottle. It is about making sure that we regulate it and do our best to keep it out of schools or marketed towards children. That's what our focus should be on.

We can see that all around the world. Anyone who travels now would see that everywhere else in the world—every other developed country in the world—has a growing and thriving vaping market. I don't think all of those countries are doing a good thing. I've been in Europe recently where vaping products are on supermarket shelves and at the checkout. I don't want to see that. We should get this right. As I said, we've got a very good model in this country to do that, to replicate our smoking regulations—our strict regulations—on this market. We should not try to double guess the choices of adult Australians but focus our enforcement on protecting our children.

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

I want to speak briefly to the amendments that have been put forward by Senator Canavan. Absolutely nobody in Australia wants to see Australian children getting access to vaping products and becoming addicted to vaping. That has to be the absolute focus of any action in relation to vaping. But the reality is that we know that the current prescription system is not being enforced, which is why we're seeing so many young Australians getting access to flavoured vapes in coloured packaging down at the corner store.

It's important to acknowledge that there are significant difficulties in measuring the extent of the issue before us. It would be extremely difficult to measure the effect of any further regulations aimed at tackling vaping because of the black market. So, like with the tobacco discussion we were having this morning, until we can actually get a handle on the black market and on enforcement of the black market—which is why the amendment that we moved earlier that was successful in this place sought to address illicit e-cigarettes and illicit tobacco—these are substitute products and enforcement needs to be equally strong on both of them. We know that that's not the case at the moment.

I absolutely acknowledge the intent behind Senator Canavan's amendments in terms of his pragmatic approach to, firstly, dealing with the challenges of access to nicotine based products that are illegal in Australia as we sit here today, unless they are sourced through a prescription and a pharmacist. We've heard contributions to say that that's absolutely limited the ability to access through that means. We understand that the regulations that are being brought in by Minister Butler will prohibit being able to import your own vapes if you have a prescription from a doctor. So we know that that's not working.

This bill, I acknowledge, is predominantly about tobacco and this about the framework that sits around tobacco control and not vape control, but we absolutely agree with Senator Canavan that more needs to be done on the issue than the shallow headline announcements that we've seen so far from the government on this particular issue. I also acknowledge the deposit scheme that Senator Canavan has put forward. I would absolutely say to the government that, in legislation that you intend to bring to this place, it would seem to me like an entirely sensible thing for you to include this really sensible amendment that Senator Canavan has put forward.

As I said, this is about the issue of tobacco and tobacco control. For that reason, we will not be supporting Senator Canavan's amendments. But I would certainly suggest to the government that it has a look at what they're doing going forward with vaping to make sure that the actions they put in place really do address the most significant issue about vaping that's before us at the moment, and that is children getting access to bubble gum flavoured vapes at their corner store. Until you can come in here and prove to us that your measures really will deal with children getting access to nicotine based vaping products, I would suggest that you are missing the role that we were put here to do.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The opposition has tabled an amendment to tighten up the policing of cigarettes, unsafe vapes and vaping products. One Nation is in support of tightening up the policing of vapes and cigarettes. In reading this bill, it seems that this Labor government was happy to profiteer off the tobacco excise and ban vaping to protect the tobacco excise, both of which make life harder for everyday Australians. The absence, though, of tangible provisions in the bill to fight imported tobacco says to me that this government does not want to upset your ethnic branches who import cigarettes from their homeland and don't pay excise on them. Minister, how many prosecutions were made in the last 12 months over the importation of illegal tobacco and which countries did that tobacco originate?

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

I'll take that on notice.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Let's understand better the role of vaping. I'm sure we have all known someone who's smoked all their life and died old and happy. How is that possible? I'm curious about that myself. It turns out we know why. In 2015 British scientists, funded by their Medical Research Council, discovered that some people—

Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Roberts.

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

Sorry, Chair, can I just check something. I had thought Senator Canavan had put his question and that Senator Ruston had responded to it—so we hadn't completed that before going to Senator Roberts.

Karen Grogan (SA, Australian Labor Party) Share this | Link to this | Hansard source

We will just come back tomorrow.

Progress reported.