Additional Comments - Australian Greens

1.1The Australian Greens are deeply concerned about increasing rates of vaping and see increasing nicotine dependence rates as a significant public health problem. We acknowledge that the status quo in Australia is far from ideal. It’s unacceptable that children have access to vapes, and vaping products that have been entering Australia are unsafe, falsely labelled and have dangerous unknown ingredients.

1.2The Australian Greens were strongly supportive of sending this legislation to a fulsome Senate inquiry. As what is proposed in this legislation will be world-leading, such a big change must be scrutinised by the parliament and the community.

1.3The Greens do not support the prohibition of vapes for adults and instead will work towards a carefully regulated scheme that focuses on public health outcomes, reducing harm and minimising the use of vaping products.

1.4We appreciate the work of the committee secretariat and thank all those who took the time to submit to the inquiry; particularly those who suggested changes to the proposed legislation.

1.5The Australian Greens are considering the majority report, and based on the evidence presented at the inquiry will seek to propose amendments to the legislation.

1.6Our additional comments are to highlight some of those suggestions made by health professionals, peak representative organisations, and consumers that in their view would improve the legislation.

Ensuring personal possession is not criminalised

1.7The committee heard from multiple witnesses during this inquiry as to the importance of ensuring that individuals who have vaping products for personal use are not criminalised as a result of this legislation.

1.8There was discussion that a definition of personal use must be defined in consultation with lived experience, and there must be an acknowledgement that such a quantity acknowledges that some consumers, including those in rural and regional areas, have limited access to pharmacies.

1.9Many stakeholders raised the importance of defining the term ‘commercial quantity’ in regulations to allow for adjustments based on observed outcomes of the Bill. It is paramount that the regulations are drafted through a rigorous and transparent process that considers the input of people with lived experience. The Greens call on the Government to release a visibility draft of the Regulations before they are introduced into Parliament to allow sufficient opportunity for feedback from the public.

1.10The Australian Alcohol and Other Drugs Council submission recommended extending the exemption for personal use to individuals in possession of any amount of vaping products. Such an amendment would bring the legislation in line with the Public Health (Tobacco and Other Products) Act 2023, which includes a blanket exemption for personal use.

1.11From the Alcohol and Drug Foundation submission to this inquiry, regarding the personal use exemption:

... lack of clear definitions of commercial and personal use quantities can impact how this is enforced, which may lead to certain communities being disproportionately affected by criminal sanctions.

1.12The Alcohol and Drug Foundation recommended to the committee that charges should be placed on accused parties based on evidence of supply rather than possession. Additionally, it was suggested that the legislation could consider a total exemption for personal use which would safeguard the criminalisation of consumers.

Burden of proof

1.13The Australian Greens acknowledge the work of the Senate Standing Committee for the Scrutiny of Bills around the reversal of the evidential burden of proof which would result in, among other things, individuals being required to prove their innocence regarding possession offences rather than prosecution being required to prove guilt. From the Scrutiny Digest 5 of 2024:

The committee welcomes the inclusion of an explanation against each of the reverse burden defences in the bill’s explanatory memorandum. However, the committee’s view is that in most of these cases, it is not apparent that the matters are matters peculiarly within the defendant’s knowledge, or that it would be significantly more difficult or costly for the prosecution to establish the matters than for the defendant to establish them.

1.14There is a non-zero chance of this resulting in the criminalisation of users of illegally obtained vapes despite the personal use exemption. This is because providing evidence of personal use for products obtained without a prescription would cause difficulty for most consumers, yet they would be required to do this to avoid being charged for possession.

Ensuring appropriate Quit supports

1.15Over the course of the inquiry, the Committee heard from witnesses about the need for comprehensive wrap-around services to support both people who are attempting to quit nicotine and those who are in a position to assist people who are attempting to quit.

1.16The Australian Council of State School Organisations gave evidence on the need for properly targeted, well-rounded information to teachers, principals, school leaders and families.

1.17As noted in item 2.65 of the committee’s report, Associate Professor Raglan Maddox also gave evidence on the need for training and funding to improve referral pathways to tobacco and nicotine cessation supports.

1.18The Australian Greens support greater investment in quit support services, including additional services and resources to meet the needs of schools, parents, children, First Nations people, health practitioners and other priority cohorts.

Investment in waste and recycling

1.19The environmental impacts of vaping products were discussed at the public hearings.

1.20Professor Emily Banks submitted to the inquiry noting that waste management of vaping products is an increasingly difficult challenge in Australia, with many vapes and vape components designed to be single-use. She also submitted that lithium-ion batteries and e-liquid pose a threat to the environment in the form of hazardous chemical waste when disposed of incorrectly.

1.21Professor Tom Calma gave evidence of the significant concern about vaping products ending up in streets and waterways, especially in First Nations communities.

1.22There is no nationally coordinated approach to the safe disposal of vaping products, despite many current users being required to dispose of all non-prescription vaping products under this Bill.

1.23To address the environmental damage, and to ensure the mass disposal that would be required under this Bill, The Australian Greens supports investment in national recycling programs, including a program for vaping products.

Restriction of advertisement of vaping products to medical practitioners

1.24The Australian Greens support having a well-resourced system to manage the marketing of pharmaceuticals and therapeutic goods. The Committee heard from multiple witnesses about the unethical marketing and promotion tactics of the tobacco and e-cigarette industries. Health practitioners mustn't be motivated by anything other than health outcomes when treating nicotine addiction.

1.25In their submission, the Cancer Council Australia recommended that the Bill be amended to provide safeguards for health practitioners to ensure that they are protected from tobacco and vaping advertising and promotion from commercially motivated parties. From the Cancer Council Australia:

Vaping products carry a different risk profile to other prescription-only medicines, given their status as ‘unapproved’ (unregistered) therapeutic goods and the broader public health risks they carry. It is the Cancer Council’s view that specific restrictions on the marketing of unregistered vapes to health professionals are justified in order to reflect the increased potential for harm arising from the use of a product that has not undergone the rigorous testing required for entry on the ARTG [Australian Register of Therapeutic Goods].

Senator Jordon Steele-John