Bills Digest No. 25, 2018–19
PDF version [258KB]
Kaushik Ramesh
Law and Bills Digest Section
Dr Matthew Thomas
Social Policy Section
17
September 2018
Contents
Purpose of the Bill
Background
Committee consideration
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Concluding comments
Date introduced: 15
August 2018
House: House of
Representatives
Portfolio: Health
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2018.
Purpose of the Bill
The purpose of the Tobacco
Plain Packaging Amendment Bill 2018 (the Bill) is to amend the Tobacco Plain
Packaging Act 2011 to expand the categories of persons that can be
appointed as authorised officers empowered to undertake compliance activities
under that Act. Specifically, the Bill will allow the following persons to be
appointed as authorised persons:
- people
who work for the Commonwealth or a Commonwealth entity, but who are not engaged
under the Public
Service Act 1999 (PS Act)
- people
who work for states, territories or local governing bodies established under
state or territory law, who have relevant responsibilities and
- members
of state or territory police forces.
The Bill stipulates that the last two categories of person
require agreement from the relevant state or territory concerned before
appointment.
Background
Tobacco
plain packaging
After gaining office in 2007, the Rudd Government
established a National Preventative Health Taskforce. This Taskforce was
charged with developing a strategy and making recommendations for tackling the
three biggest preventative health issues facing the Australian community,
namely obesity, tobacco consumption and alcohol consumption.[1]
On 30 June 2009, the Taskforce released the National
Preventative Health Strategy.[2]
The strategy outlined a strategic vision for Australia to be the healthiest
country by 2020, with one of the targets set being a reduction in the
prevalence of daily smoking amongst adult Australians from 17.4 per cent (in
2007) to ten per cent over this period (in line with national preventative
health targets contained in the Council of Australian Governments (COAG)
National Partnership Agreement on Preventive Health).[3]
One of the means recommended to help achieve this target
was the elimination of the promotion of tobacco products through the design of packaging.[4]
By regulating the packaging of tobacco products it was envisaged that it would
be possible to reduce the appeal of tobacco products to consumers, increase the
effectiveness of health warnings on the packages, and reduce the ability of the
packaging to mislead consumers about the harmful effects of smoking or using
tobacco products.
On 29 April 2010, then Prime Minister, Kevin Rudd
announced the introduction of a series of measures calculated to reduce smoking
and its harmful effects, the most significant of which was the plain packaging
of tobacco products by 1 July 2012.[5]
On 6 July 2011 the Tobacco
Plain Packaging Bill 2011 was introduced to the House of Representatives.[6]
This Bill sought to prohibit the use of all tobacco logos, brand imagery,
colours and promotional text on the retail packaging of tobacco products. Under
the proposed legislation the retail packaging of tobacco products was to be a
drab olive colour, with the exception of the graphic health warnings which were
to be updated and expanded.
The plain packaging legislation also established:
- general
offences and civil penalty provisions for non-compliant retail packaging and
tobacco products[7]
- powers
to investigate contraventions of the legislation (including the appointment of
authorised officers)[8]
and
- provisions
for enforcing compliance.[9]
On 1 December 2011 the Bills received Royal Assent, and, in
a world-first reform, from 1 December 2012, all tobacco products sold,
offered for sale or otherwise supplied in Australia have been required to meet
the above prerequisites.[10]
Plain
packaging impacts
The objects of the Tobacco Plain Packaging Act are
to, among other things, improve public health by discouraging people from
taking up smoking, or using tobacco products; encourage people to give up
smoking, and to stop using tobacco products; discourage people who have given
up smoking, or who have stopped using tobacco products from relapsing; and
reduce people’s exposure to smoke from tobacco products.[11]
While the Department of Health
notes that ‘the full effect of plain packaging is expected to be realised over
time’, it goes on to state that ‘early available evidence indicates that the
measure is beginning to achieve its public health objectives and is expected to
continue to do so in the future’.[12]
Based on National Drug
Strategy Household Survey data and Australian National Account figures (among
others) rates of tobacco consumption have been generally declining in Australia
for some time.[13]
Daily smoking has been falling (especially amongst younger age groups), fewer people
have been taking up smoking, and, while consumer expenditure on tobacco
products has increased over the last few quarters, it is nevertheless on a
long-term downward trend. While the decline in daily smoking slowed between the
2013 and 2016 National Drug Strategy Household Surveys, the number of people
choosing never to take up smoking has increased substantially, to the highest
levels since the commencement of the National Drug Strategy Household Survey in
1991.[14]
Since the introduction of the tobacco plain packaging
measure in Australia studies have confirmed the expected impacts of the measure
based on surveys of responses to simulated plain packs.[15]
While these studies suggest that plain packaging may be
contributing to a reduction in the prevalence and incidence of smoking (with a
number of existing smokers being more likely to give up the habit and fewer people
likely to take up smoking) none of them attempts to quantify the impact of the
measure. As noted above, a range of other tobacco control measures were
introduced at around the same time as plain packaging and this makes such an
assessment very complex.
In 2016 as part of a post-implementation review of the
measure the Department of Health engaged independent researcher, Dr Tasneem
Chipty to conduct an econometric analysis of smoking prevalence data to
determine whether or not plain packaging had had a discernible impact on the
prevalence of smoking.
After controlling for a range of variables including
excise tax increases since 2010 and socio‑demographic factors, Dr Chipty
found that the combination of plain packaging and enlarged graphic health
warnings had resulted in a reduction in smoking prevalence.[16]
Dr Chipty estimated ‘a statistically significant decline in smoking prevalence
of 0.55 percentage points over the post‑implementation period, relative
to what the prevalence would have been without the packaging changes’.[17]
This equates to 108,228 fewer smokers over the 34 month post‑implementation
period from December 2012 to September 2015.[18]
Further, Dr Chipty observed that ‘because plain packaging
is intended to deter smoking initiation, promote cessation, and deter relapse,
the benefits of the packaging changes will likely grow over time’.[19]
Enforcement
The Department of Health is responsible for tobacco plain
packaging legislation in Australia.[20]
The Department takes a risk based approach towards assessing a breach of the
plain packaging framework in terms of how it affects public health as well as
the reputation of the broader regime.[21]
Currently, the Department of Health undertakes this enforcement role along with
the National Measurement Institute (NMI), which is a division within the
Department of Industry, Innovation and Science.[22]
The roles of the Department of Health and the NMI with regards to the
enforcement of tobacco plain packaging legislation are set out in the May 2018 Tobacco
Plain Packaging Enforcement Policy (the Enforcement Policy):
The Tobacco Plain Packaging Enforcement Committee
(Enforcement Committee) has been established, comprising representatives from
the Department and the National Measurement Institute (NMI).
The NMI, through its authorised officers, undertake
compliance and enforcement activities across Australia on the Department’s
behalf and report potential contraventions to the Enforcement Committee.
The Enforcement Committee considers NMI’s field visit
reports, and decide what actions, if any, should be taken in relation to
potential contraventions of the TPP [tobacco plain packaging] legislation. The
Enforcement Committee may recommend compliance action through use of
administrative mechanisms ... or recommend to the Department that consideration
be given to the commencement of civil or criminal proceedings ... Where the
Enforcement Committee considers that more serious action should be taken, the
Committee will recommend that action to the appropriate decision maker.
Alternatively, the Enforcement Committee may consider that
education already provided by NMI’s authorised officers is sufficient, and
recommend closure of the matter. Where further education and communication is
necessary to achieve compliance a written warning may be issued to the entity.[23]
The Enforcement Policy’s underlying principles are stated
to be proportionality, transparency, consistency, confidentiality and
timeliness.[24]
A range of enforcement options are set out in the Enforcement Policy depending
on the entity’s attitude to compliance:
Table 1:
Compliance and Enforcement Matrix
|
|
Entity’s Attitude to Compliance
|
Department’s Compliance Approach
|
|
Tier 1
|
Perceived decision to not comply
- Ambivalence
to tobacco plain packaging legislation
- Aware
of requirements, but insufficient change to non-compliant behaviour
|
Enforcement Options
- Civil
Prosecution
- Criminal
Prosecution
- Infringement
Notice
|
|
Tier 2
|
Reluctant but willing to comply
- Approach
to compliance flouts the legislation
- Long
term interests in industry - necessary to achieve compliance
|
Return to Compliance & Deter
- Warning
letter
- Infringement
Notice
- Negotiated
Compliance
|
|
Tier 3
|
Willing to be compliant
- Unaware
of tobacco plain packaging legislation
- Belief
that compliant, but non-compliance detected
|
Compliance Options
- Education
- Warning
Letter
- Negotiated
Compliance
|
Department of Health, ‘Tobacco
plain packaging enforcement policy’, [DoH, Canberra], May 2018, p. 6.
The Enforcement Policy also notes that some breaches of
plain packaging laws may require referral to another agency:
The Department notes that some complaints are
multi-jurisdictional and that at times, related offences are more appropriately
dealt with by another Commonwealth or state /territory agency. Policy,
resourcing, and complaints related to other cases may make it appropriate for
another agency to take the lead where the situation involves a breach of more
than one regulatory scheme (e.g. as with the import of illicit tobacco
products, and appropriate involvement of law enforcement agencies).
Cases may be referred to other agencies without notice to a
person or entity. Cases investigated by the Department may continue to be
investigated in conjunction with another agency, or matters may be referred in
their entirety.[25]
The Bill does not change any policy elements with regards
to plain packaging, but does make amendments to the enforcement framework. This
is discussed in detail in the ‘Key issues and provisions’ section below.
Committee
consideration
Senate
Standing Committee for Selection of Bills
The Senate Standing Committee for Selection of Bills
recommended that the Bill not be referred to a committee.[26]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
had no comment on the Bill.[27]
Position of
major interest groups
State and territory agencies were consulted on the Bill;
the Explanatory Memorandum notes that no agencies opposed the amendments.[28]
The Explanatory Memorandum notes that there were some concerns regarding
resourcing from these agencies, however these concerns seem to be addressed by item
3 of Schedule 1 of the Bill (see ‘Key issues and provisions’ section
below). The Explanatory Memorandum noted the following with regards to the
consultation process:
A five-month consultation process on the proposed amendment
was undertaken. Information was provided on the proposed amendment and comments
were sought from each relevant state and territory health department, state and
territory police and jurisdictional local government associations. At the conclusion
of consultation, no agencies opposed the amendment. Some agencies expressed
initial concern in relation to the potential for their officers to be appointed
as authorised officers and how this may affect their resourcing or their
strategic priorities. All agencies were assured that the Bill imposes no
obligation. Any appointment would only be proposed if there was a need for such
an arrangement and would be subject to there being a formal agreement in place.[29]
Financial
implications
The Explanatory Memorandum notes that it is expected that
the Bill will not result in any financial impact beyond current costs
associated with the tobacco plain packaging framework.[30]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[31]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights found
that the Bill did not raise human rights concerns.[32]
Key issues
and provisions
Expansion
of authorised persons
Section 81 of the Tobacco Plain Packaging Act allows
the Secretary of the Department of Health to appoint an authorised officer for
the purposes of that Act if the Secretary is satisfied that that person has
suitable qualifications, training or experience (subsection 81(2)). Under
subsection 81(1), a person that may be appointed as an authorised officer by
the Secretary is restricted to:
- a
person appointed or engaged under the PS Act or
- a
member or special member of the Australian Federal Police.
Chapter 4 of the Tobacco Plain Packaging Act confers
a range of powers on authorised officers to investigate contraventions of that
Act. These powers include the following:
- an
authorised officer may enter premises if there are reasonable grounds for
suspecting that there may be material on the premises related to the commission
of an offence or the contravention of a civil penalty provision under the Tobacco
Plain Packaging Act (entry is with the consent of the occupier of the
premises or under a warrant)[33]
- an
authorised officer who enters premises may exercise search powers; the
authorised officer may be assisted by other persons if that assistance is
necessary and reasonable[34]
and
- an
authorised officer can require information or documents to be produced.[35]
For example, section 31 of the Tobacco Plain Packaging
Act provides for a fault-based offence, a strict liability offence and a
civil penalty provision if a person sells a tobacco product, offers a tobacco
product for sale or otherwise supplies a tobacco product that is packaged for
retail sale, and the retail packaging does not comply with plain packaging
requirements. Therefore if an authorised person has reasonable grounds for
suspecting that there is material on premises related to the commission of such
an offence, then that authorised person can enter those premises by consent or
with a warrant.
As per section 100 of the Tobacco Plain Packaging Act,
authorised officers can also give a person an infringement notice if they have
reasonable grounds to believe that the person has contravened an offence of
strict liability under Chapter 3 of that Act. For example, subsection 31(4)
provides a strict liability offence that covers the circumstances set out above,
in relation to which an authorised officer may issue an infringement notice.
The Enforcement Policy, discussed in the ‘Background’
section above, has further information around the role of an authorised officer
under the plain packaging framework. The Enforcement Policy notes in particular
that authorised officers from the NMI undertake field visits and conduct
compliance activities.[36]
As noted above, these NMI officers must be employed under the PS Act. The
Bill effectively expands the classes of persons that can be appointed as
authorised officers under the Tobacco Plain Packaging Act.
Persons
engaged by the Commonwealth
Item 1 of Schedule 1 of the Bill inserts proposed
paragraph 81(1)(aa) into the Tobacco Plain Packaging Act, which
expands the categories of authorised persons that can be appointed by the
Secretary to include persons appointed or engaged by the Commonwealth or by a
Commonwealth entity (within the meaning of the Public Governance,
Performance and Accountability Act 2013) other than those employed
under the PS Act. The amendment effectively means that people working
for the Commonwealth, or Commonwealth bodies, can be authorised officers
without having to necessarily be Australian Public Service (APS) employees. For
example, the amendment means that (non-public servant) contractors working for
the NMI (or other Commonwealth agencies) could be appointed as authorised
officers under the Tobacco Plain Packaging Act.
The Explanatory Memorandum notes that the reason for this
amendment is to allow for changes to the NMI’s structure and to provide greater
flexibility:
This clause is primarily to respond to potential
organisational and administrative changes which may occur in the future, by
ensuring the current agency [the NMI] which undertakes compliance and
enforcement activities on behalf of the Department of Health will be able to
continue to provide these services if it undergoes organisational and
administrative changes. This clause will also provide more flexible
arrangements to respond to potential non-compliance with the Act in the future.[37]
State and
territory officers
Item 2 of Schedule 1 inserts proposed paragraphs
81(1)(c) and 81(1)(d) into the Tobacco Plain Packaging Act.
These paragraphs allow the Secretary to appoint the following persons as
authorised officers:
- an
appointee or employee of a state or territory, or a local government body
established by a state or territory, who has responsibilities in relation to
health matters or in relation to compliance and enforcement in tobacco control
matters and
- a
member of the police force or service of a state or territory.
Such an amendment may better reflect the multi-jurisdiction
approach envisaged in the Enforcement Policy, discussed in the ‘Background’
section above. In addition, the Explanatory Memorandum notes the specific
policy rationale for this amendment, which centres on greater flexibility:
The inclusion of relevant state and territory health or
police officers and local government officers would provide flexibility and
cooperation to respond to non-compliance with the Act should it be needed and
agreed. For example, relevant state and/or territory health officers, if
consent is given by their jurisdiction, may be appointed to respond to
localised areas of non-compliance to assist with inspections and enforcement
activity as appropriate. Potential breaches of the Act in remote areas could be
actioned in a more efficient way as it may be possible to use someone already
in or close to the local area.[38]
As discussed above, the Tobacco Plain Packaging Act requires
that the Secretary must still be satisfied that any appointee has suitable
qualifications, training or experience. This is noted in the Explanatory
Memorandum as a ‘safeguard’ of the framework, despite this broadening of
persons that can be appointed.[39]
In addition, item 3 of Schedule 1 inserts proposed
subsection 81(2A), which allows the categories of persons outlined in item
2 to only be appointed with the agreement of the state and territory
concerned. This amendment has likely been included in the Bill to respond to
concerns from the states and territories (see discussion in the ‘Position of
major interest groups’ section above).
Concluding comments
The Bill is related to enforcement of the tobacco plain
packaging regime and widens the range of persons that can be appointed as
authorised persons for the purposes of compliance and enforcement activities
under the regime. The Bill does not make any substantive policy changes to the
tobacco plain packaging framework.
[1]. National
Preventative Health Taskforce, Australia:
the healthiest country by 2020—national preventative health strategy – the roadmap
for action, [National Preventative Health Taskforce, Canberra],
30 June 2009, p. 287.
[2]. Ibid.
[3]. Ibid.,
p. 36.
[4]. Ibid.,
pp. 181–2.
[5]. K
Rudd (Prime Minister), Anti-smoking
action, media release, 29 April 2010.
[6]. For
more information on the Bill, see: M Thomas, Tobacco
Plain Packaging Bill 2011, Bills digest, 35, 2011–12,
Parliamentary Library, Canberra, 24 August 2011. The Trade
Marks Amendment (Tobacco Plain Packaging) Bill 2011 was introduced on the
same day. For details on this Bill see M Neilsen, Trade
Marks Amendment (Tobacco Plain Packaging) Bill 2011, Bills
digest, 36, 2011–12, Parliamentary Library, Canberra, 24 August 2011.
[7]. Chapter
3 of the Tobacco
Plain Packaging Act 2011.
[8]. Ibid.,
Chapter 4.
[9]. Ibid.,
Chapter 5.
[10]. Tobacco Plain
Packaging Act 2011; for an overview of Australia’s tobacco plain
packaging measure, see M Scollo, B Freeman and E Greenhalgh, ‘Packaging
as promotion: evidence for and effects of plain packaging’ in M Scollo and
M Winstanley (eds), Tobacco in Australia: facts and issues, third edn,
Cancer Council Victoria, 2017.
[11]. Section
3 of the Tobacco
Plain Packaging Act 2011.
[12]. Department
of Health (DoH), ‘Evaluation
of tobacco plain packaging in Australia’, DoH website.
[13]. Australian
Institute of Health and Welfare (AIHW), National
drug strategy household survey 2016: detailed findings, cat.
no. PHE 214, AIHW, Canberra, 2017; Australian Bureau of Statistics (ABS), Australian
national accounts: national income, expenditure and product, cat. no.
5206.0, ABS, Canberra, March 2018.
[14]. Australian
Institute of Health and Welfare, op. cit., p. 21.
[15]. ‘Tobacco control:
implementation and evaluation of the Australian tobacco plain packaging policy’,
British Medical Journal, 24 (suppl. 2), April 2015.
[16]. T
Chipty, Study
of the impact of the tobacco plain packaging measure on smoking prevalence in
Australia, [study commissioned by the Australian Government, Department
of Health], 24 January 2016.
[17]. Ibid.,
p. 3.
[18]. Ibid.,
p. 39.
[19]. Ibid.,
p. 3.
[20]. Department
of Health (DoH), Tobacco
plain packaging enforcement policy, [DoH, Canberra], May 2018.
[21]. Ibid.,
p. 8.
[22]. Department
of Industry, Innovation and Science, National Measurement
Institute website.
[23]. DoH,
‘Tobacco
plain packaging enforcement policy’, op. cit., p. 8.
[24]. Ibid.,
pp. 5–6.
[25]. Ibid.,
p. 13.
[26]. Senate
Standing Committee for Selection of Bills, Report,
9, 2018, The Senate, 23 August 2018, pp. 3–4.
[27]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2018, The Senate, 22 August 2018, p. 3.
[28]. Explanatory
Memorandum, Tobacco Plain Packaging Amendment Bill 2018, p. 2.
[29]. Ibid.
[30]. Ibid.
[31]. The
Statement of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum to the Bill.
[32]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 8, 2018, 21 August 2018, p. 36.
[33]. Section
52 of the Tobacco Plain Packaging Act 2011.
[34]. Section
51 of the Tobacco Plain Packaging Act 2011.
[35]. Section
80 of the Tobacco Plain Packaging Act 2011.
[36]. Department
of Health, ‘Tobacco
plain packaging enforcement policy’, op. cit., p. 8.
[37]. Explanatory
Memorandum, Tobacco Plain Packaging Amendment Bill 2018, p. 5.
[38]. Ibid.,
pp. 1–2.
[39]. Ibid.,
pp. 5–6.
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