Additional Comments - Coalition Senators
1.1Coalition Senators note the recommendations of the majority report and reserve our final position while this policy makes its way through our internal processes.
1.2Coalition Senators want to thank the witnesses who attended public hearings, and all who took time to make a submission to this inquiry. Their evidence was crucial in guiding us through a very important issue.
1.3Coalition Senators believe that vaping in Australia needs to be viewed through the prism of doing more to ensure young people, especially children, do not have access to vaping products while at the same time not creating barriers for responsible adults who wish to use vaping as a smoking cessation or to treat their addiction.
1.4The Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 prohibits the importation, domestic manufacture, supply, commercial possession and advertisement of non-therapeutic (non-nicotine) and prohibits the domestic manufacture, commercial possession and advertisement of non-therapeutic (non-nicotine) disposable vaping goods.
1.5Coalition Senators strongly support the stated intent of the legislation to ‘address the growing risk posed by vaping in Australia, particularly to youth and young adults’.[1] However, concerns have been raised of the potential that this Bill (alongside other legislation and regulations introduced this year) will cause considerable unintended consequences by sustaining an organised criminal black market that risks consumer and community safety.
1.6Coalition Senators note that despite the retail sale of nicotine e-cigarettes having never being legal in Australia, the vaping rate among young people aged 14-17 has increased from 1.8% in 2019 to a record high of 9.7% in 2022-23.[2]
1.7Coalition Senators note that the existing prescription only model has failed to address the exponential growth in underage vaping.
1.8Coalition Senators note the proven control framework for tobacco, which has successfully driven Australia’s underage smoking rate to a record low.
1.9As the current Health Minister has stated, Australia’s vaping black market:
Is a lucrative source of revenue for criminal gangs who use it to bankroll drug trafficking, sex trafficking and all of their other criminal activities.[3]
1.10Concerningly at the public hearing, the Committee received evidence from criminologist Dr James Martin that:
The consequences of this ban have been disastrous, with nine out of 10 vapers having already rejected the prescription model and instead sourcing their products from the black market.
With around 1.5 million Australians now vaping illegally, the bans have created the second-largest illegal drug market in the country after cannabis and a massive new front in the war on drugs.
1.11Instead of achieving the Health Minister’s desired outcome to ‘stamp out recreational vaping’,[4] Dr Martin stated during the public hearing that:
Law enforcement does not and cannot restrict access to the point that consumers who want these products will be precluded from getting them.
Rather, markets adapt, and supply goes underground, where it is even more difficult to police. The illegal products that are supplied by the black market are unregulated, meaning that they are more potent, more addictive and more dangerous than their legal alternatives.
Increasing penalties and heavier policing do not stop criminal actors from entering the market. They simply allow them to charge more for their services and increase the profits available to organised crime.
1.12Evidence from the Police Federation of Australia supported the evidence of Dr Martin that the elimination of the illegal vaping black market through, effectively, prohibition was not achievable:
Senator CADELL: Mr Weber, in summary, the police force does amazing work and a lot of work, especially [inaudible] domestic violence. With the resources and training you have now, and with all the other demands on you, could you enforce this to eliminate illegal vaping in these laws across the country?
Mr Weber: No; not at all.
1.13The current Health Minister has previously stated one of the purposes of this legislation was to close an enforcement ‘loophole’:
Currently there is a loophole in place that means it is legal to sell non-nicotine vapes.
What we're doing now is closing that loophole. All of these disposable vapes, no matter what they present as, will be illegal as we start to put these regulations in place.[5]
1.14At the public hearing, the Committee was advised by Kidsafe Western Australia this loophole did not exist in Western Australia:
Senator CADELL: In WA they’ve made the sale of all vapes illegal – nicotine and non-nicotine vapes – through state legislation, haven’t they?
Mr Phillips: Yes.
1.15Consistent with evidence provided by the Police Federation of Australia and criminologist Dr Martin, a legislated ban on the sale of all vaping products, which this Bill seeks to achieve, was unenforceable in Western Australia and made no difference to the accessibility of black market vaping products:
Senator CADELL: There’s an article in the West Australian, from Tuesday 6 February, that says vape stores are still operating in Freemantle and there are still two vape stores operating within 200 metres of a school. Have you seen any enforcement to enforce these laws and stop people selling vapes?
Mr Phillips: I think it comes down to the capacity to do that enforcement. Quite often it is about what resources there are to do that. I'm aware that there is enforcement, but, specifically for those two situations, I couldn't answer that.
Senator CADELL: The article goes on. They went to specific stores and asked for berry flavoured product containing nicotine and were successful in eight stores. Separately, a University of Notre Dame study found that nine in 10 vape shops in Perth are within one kilometre of schools. This is despite having prohibition laws on the sale of vapes, isn't it?
Mr Phillips: Yes
1.16According to the Office of Impact Analysis’ ‘Proposed Reforms to the Regulation of Vapes’ impact analysis associated with this legislation, the number of adult vapers who have a nicotine prescription for vapes is as low as 3%, indicating that as many as 97% of adult vapers are purchasing unregulated products from the black market.[6]
1.17The lack of regulation on flavourings, nicotine strength and ingredients were consistent themes raised throughout public hearings, with Cancer Australia stating:
Prof. Milch: All vapes are different. That’s part of the problem – the colourings, the flavourings, of vapes are unregulated, and there are different chemicals in many different vapes.
1.18These concerns of consumer safety from unregulated products were also raised by regulated vaping manufacturers in public hearings, such as From the Fields Pharmaceutical, who currently wholesale through the limited lawful medical prescription pathway:
Senator KOVACIC: What do you think, then, are the risks of a regulatory framework where the only choices are a therapeutic vape or an illegal vape?
Mr David: You just need to look at the numbers. Today there are anywhere from one to 1.7 million adults who are vaping…
Unfortunately, their access point has been through unregulated illegal products, which are far more dangerous than regulated products.
1.19Coalition Senators share the considerable concern expressed by the Minister for Education that ‘every teacher, every principal at a high schools tells me vaping is one of the biggest behavioural issues in their schools’.[7]
1.20The potential of poisoning from unregulated products was identified in public hearings by Kidsafe Western Australia:
Mr Phillips: Specifically, from a kid-safe point of view and an injury prevention point of view, the proliferation of these unregulated devices into the market has raised some concerns, particularly for younger children, around nicotine poison.
We're very aware that nicotine is a very toxic chemical for children. We're also aware that it can be inhaled, absorbed or ingested. Small amounts of high levels of nicotine can have major effects on a child.
1.21Evidence received by tobacco treatment specialist Dr Mendelsohn, summarised the intersection between consumer and community safety risks created by the Australian Government’s medical prescription model for vaping products in the public hearings:
Dr Mendelsohn: Ninety per cent of current vapers have rejected the legal pathway, and only a small number of doctors are willing to prescribe nicotine.
This has predictably created a thriving and dangerous black market controlled by criminal networks which are selling high nicotine, unregulated products.
There's been escalating violence with that. This has also been the key driver of youth vaping.
1.22The risks to community safety from organised criminal gangs selling unregulated vaping products were further reinforced by evidence from the Police Federation of Australia stating:
Senator URQUHART: The question I want to ask you specifically is: why have law enforcement agencies struggled to contain the rise of illicit vaping products?
Mr Weber:…I think our question – and you’ve raised this in a roundabout way – is: what does the government want out of this policy?
For us, it's created a crime. I never would've thought, five or 10 years ago, that I'd be even discussing any of these issues about illicit tobacco or vaping; yet we are sitting here talking about it now.
It is, as the good doctor said, a real industry for crime and organised crime. We're actually putting more people in harm's way of the health issues.
1.23The extent of the harm caused to community safety from the unregulated trade was detailed in public hearings by criminologist Dr Martin:
Dr Martin: The battle for control of this trade has resulted in serious criminal violence, with over 70 fire-bombings and multiple homicides witnessed around the country in the last 12 months alone.
1.24Coalition Senators raise serious concerns about how Government Senators influenced this committee process, particularly regarding the lack of detailed consideration of international experts and affected stakeholders.
1.25Over 60 submissions were published less than two days before public hearings and less than a day and a half of public hearings were held despite this inquiry receiving over 200 written submissions.
1.26Coalition Senators note the apparent contempt for considered policy-making, ambivalence toward legitimate stakeholders' concerns, and a focus on wrong priorities that has become a hallmark of the Albanese Government.
1.27Through submissions, we received written evidence that over 70 fire-bombings and multiple homicides have occurred due to the black market trade in nicotine products and that lawful businesses have been subjected to community violence of the black market trade, however, none of these submitters were invited to provide evidence in public hearings.
1.28Coalition Senators note that the Royal Australian College of General Practitioners states, Australia is the only country in the world to restrict access to nicotine vaping products on a prescription-only basis.[8]
1.29Despite the Australian Government policy being a global outlier and the dramatic increase in youth vaping under this policy framework, not a single international expert who submitted to the Committee was invited to provide evidence.
1.30Organisations such as Action for Smokefree 2020 Aotearoa New Zealand (ASHNZ) whose patron is former New Zealand Labour Prime Minister the Rt Hon Helen Clark ONZ SSI PC, were denied an opportunity to appear in public hearings and discuss their written submissions, which stated:
New Zealand’s vaping regulations were passed in 2020 and came into force from 2021. Since then, regulations have continued to be strengthened.
Note that since the formal legislation to legalise vaping as a regulated consumer product, regular youth vaping has declined for two consecutive years.
New Zealand has seen very little evidence of an organised illicit vape market. There is little incentive to operate an illicit supply chain at any commercially viable scale due to effective competition from the legal marketplace.
The regulated model also provides greater safety for consumers, and people vaping to quit. Unlike Australia where 80% of vapes are estimated to be illicit, the regulation model in New Zealand allows people to have clear sight over the provenance of their vape, purchase from experts in specialist stores, and have a clear expectation around what to do if their product is faulty or problematic.
1.31Professor Ann McNeill of Kings College London, submitted:
Furthermore, the medical prescription requirement appears cumbersome and unlikely to be a workable option for people who smoke and particularly some of the groups with very high smoking prevalence, such as people with mental illness.
1.32Professor Nancy A. Rigotti, MD, Professor of Medicine at Harvard Medical School based at Massachusetts General Hospital in Boston, MA, and Tobacco Policy Scientific Advisory Committee Member for the U.S. Food and Drug Administration’s Center for Tobacco Products, through a written submission outlined:
Australia’s underlying prescription-only regulatory model for e-cigarettes has failed to make them readily available to smokers whose lives could be saved.
Australia should consider switching to a risk-proportionate, adult consumer regulatory model, as other Western countries have done.
1.33The former Director of Research Policy & Cooperation of the World Health Organization, Professor Tikki Pangestu, provided a written submission stating:
Evidence from many countries where vapes are regulated (e.g. New Zealand, USA, UK), have shown significant reductions in youth vaping numbers. Effective regulatory settings within those markets to control youth access to vaping products (licensing and fines, product restrictions, point of sale restrictions, labelling and enforcement activities, etc.) were instrumental in reducing the numbers of youth vapers.
Regretfully, such reductions have not been observed in Australia and perhaps there are lessons to be learnt from these other countries with regards to strategies and policies which are effective in reducing the incidence of youth vaping
In markets where a total ban applies to vaping products, it is inevitable that an illicit ‘black market’ will become a major problem for the government.
While policy settings could be envisaged to enhance enforcement activity (e.g. stricter and enhanced surveillance capabilities for entry into the country of illicit supplies of electronic cigarettes, increasing fines for selling, supplying and for possession, including jail time, etc.) such measures will require significant resources and may prove to be ineffective, almost futile, in the longer term as criminals will almost always be one step ahead in finding innovative ways to supply vaping devices and liquids to the black market.
Domestic measures to curb black market operations also ignores the source of the problem, i.e. the likely external source of these illicit vaping products.
1.34Coalition Senators agree that more must be done to prevent children accessing vapes, and to assist those children who currently have vaping addictions to transition away from their habit.
1.35This legislation seeks to close current loopholes being used to import, manufacture and supply non-therapeutic vapes, which are then being illegally sold to people under the age of 18.
1.36It is generally accepted that most vapes that claim to be nicotine free contain nicotine, along with other dangerous chemicals. This is resulting in a new generation of young Australians being inadvertently addicted to nicotine.
1.37Coalition Senators are concerned that this legislation will create a scenario where law abiding citizens are caught up in the criminal justice system for owning or carrying a vape.In evidence given at a public hearing, drug and alcohol peak bodies expressed concern that due to a lack of clarity over what defines personal use and what defines commercial quantities, groups of people could accidentally and inconsistently be punished for possessing a vape.[9]
1.38Coalition Senators believe there is a need for States and Territories to harmonise their legislation so as to ensure national consistency over personal use.Mr Dunne from the Australian Alcohol and other Drugs Council summarised the current problems with the existing settings when he said:
We're finding ourselves in this position within some states and territories where, if you are stopped by a police officer on the street and you are searched for illicit substances and you are found to have vapes and cannabis, you might receive a counselling diversion for your cannabis, but for your vapes you might face fines of up to $32,000 or 12 months prison in the ACT or, in Western Australia, up to $45,000 in fines. So it creates an unalignment between tobacco control legislation, vape control legislation and illicit drugs responses.[10]
1.39Coalition Senators believe it should be the priority of the Federal Government to ensure State and Territory Governments work in unison on this issue, so that a person with a vape in Wodonga is treated the same as someone in Albury, and that penalties for personal use of vapes are fair, proportionate and enforceable.
1.40The committee heard from three vape store owners who had all started their stores to help people quit smoking after they or their family had quit smoking through vaping.
1.41Coalition Senators note the bill offers no compensation to the vape stores that have expended significant capital to build their businesses within the legal market and will be forced to cease operations if this bill is passed.
1.42Coalition Senators call on the Government to address this issue through appropriate means.
1.43Coalition Senators are concerned that this is another tranche of vaping legislation under this Government that has no quantifiable measures of success.Evidence shows that about 9 out of 10 vapers are not accessing vapes through the Government’s tightened prescription model.[11] The Government have not indicated what reduction in illicit vape use is expected from this additional tranche of legislation that would measure it as a successful policy measure Without quantifiable measures of success there is no way to tell if this legislation is reaching its objectives.
1.44Coalition Senators consider the Government should be regularly reporting smoking and vaping figures to Parliament in order to determine the success or failure of the prescription model.
1.45This Committee process has highlighted that the illicit vaping market in Australia is out of control and evidence and commentary from Australian communities and schools have reinforced this view.
1.46As stated by the Police Federation of Australia, legislation has created an illicit market where organised crime is involved, which is turning honest people into alleged criminals or putting them through the criminal system.
1.47This Committee has received no substantive or credible evidence that replicating what has already been demonstrated to have failed in Western Australia – a complete ban on the sale of all vaping products – will address the current vaping black market that has engulfed Australia or, most particularly stop children accessing nicotine vaping products.
1.48Coalition Senators note that vaping models that are in place in other OECD countries, such as the United States, United Kingdom, New Zealand, Canada, and the European Union, to strictly regulate, control, and tax vaping products as an adult consumer product have been proven to control the market and reduce youth vaping.
1.49As stated in public hearings by criminologist Dr Martin:
Retail licensing, risk-proportionate taxation, strictly enforced age restrictions, plain packaging and bans on advertising, as well as public health campaigns, have successfully reduced rates of both teen and adult smoking and alcohol consumption over the last decade.
These successes have occurred, without prohibiting these products and generating billions of dollars for organised crime. I therefore urge the committee to heed the lessons of the war on drugs and adopt a similarly pragmatic and realistic approach to the regulation of vapes as we do with other adult consumer products.
1.50Coalition Senators note that this approach and licencing framework was also endorsed by the Police Federation of Australia:
It would have to be a licensing regime where we could actually enforce that fit and proper people are delivering the tobacco or the vapes.
1.51Coalition Senators also note the evidence provided by experts such as Dr Ron Borland and others in public hearings advocating for alternative models that would allow vapes to be sold in a retail environment:
If we have strong rules about it—about who can actually sell these kinds of products and people losing their licences if they're caught doing the wrong thing—then I think we can effectively restrict the access to young people.
1.52Coalition Senators reiterate our concern that the current prescription only model, including this Bill, will not deliver the Governments intent to ‘address the growing risk posed by vaping in Australia, particularly to youth and young adults’. Nor will it address the serious and worsening black market activity regarding the sale of both illicit tobacco and illicit e-cigarettes.
Senator Maria Kovacic Senator Ross Cadell
Senator Matthew Canavan
Footnotes
[1]Explanatory Memorandum, p. 1.
[2]Explanatory Memorandum, p. 3.
[3]Department of Health and Aged Care, Radio interview with Minister Butler and Rafael Epstein on ABC Radio Melbourne Mornings – 23 April 2024, 23 April 2024, Radio interview with Minister Butler and Rafael Epstein, ABC Radio Melbourne Mornings - 23 April 2024 | Health Portfolio Ministers | Australian Government Department of Health and Aged Care (accessed 8 May 2024).
[4]Department of Health and Aged Care, Minister for Health and Aged Care – press conference – 2 May 2024, 2 May 2024, Minister for Health and Aged Care - press conference - 2 May 2024 | Health Portfolio Ministers | Australian Government Department of Health and Aged Care (accessed 8 May 2024).
[5]Department of Health and Aged Care, Minister for Health and Aged Care – press conference – 28 November 2023, 28 November 2023, https://www.health.gov.au/ministers/the-hon-mark-butler-mp/media/minister-for-health-and-aged-care-press-conference-28-november-2023 (accessed 8 May 2024).
[6]Department of Health and Aged Care, Proposed reforms to the regulation of vapes – Impact Analysis, October 2023, Impact Analysis - Proposed reforms to the regulation of vapes.PDF (pmc.gov.au) (accessed 8 May 2024).
[7]Ministers’ Media Centre, Ministers of the Education Portfolio, Press Conference – Sydney Transcript, 10 April 2024, Press Conference - Sydney | Ministers' Media Centre (education.gov.au) (accessed 8 May 2024).
[8]Anastasia Tsirtsakis, ‘Have GPs been supported for vaping to go prescription-only from October?’, newsGP, 26 August 2021, RACGP - Have GPs been supported for vaping to go prescription-only from October? (accessed 8 May 2024).
[9]Committee Hansard, 2 May 2024, pp. 9–16.
[10]Committee Hansard, 2 May 2024, p. 13.
[11]Committee Hansard, 2 May 2024, p. 26.
Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 [Provisions]
Senate
House of Representatives
Get informed
Bills
Committees
Get involved
Visit Parliament
Website features
Parliamentary Departments