Chapter 1Introduction
1.1The Public Health (Tobacco and Other Products) Bill 2023 (the bill, the main bill) and the Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023 (Consequential Amendments and Transitional Provisions bill) (together,the bills) were introduced in the House of Representatives on 13 September 2023.
1.2On 14 September 2023, the Senate referred the provisions the bills to the Senate Community Affairs Legislation Committee (the committee) for inquiry and report by 22 November 2023.
Structure of the report
1.3This report contains two chapters. This chapter sets out:
the purpose of the bills;
background information relating to tobacco use and harms, Australia’s current tobacco control framework and rationale for the proposed bills;
general information outlining the conduct of the inquiry and other committees’ consideration of the bills; and
an overview of the bills’ key provisions.
1.4Chapter 2 outlines inquiry participants’ views on the bills and concludes with the committee’s view and recommendation.
Purpose of the bills
1.5As outlined in subclause 3(1) of the bill, its objects are to:
improve public health by:
discouraging smoking and the use of regulated tobacco items; and
encourage people to give up smoking, and to stop using regulated tobacco items;
give effect to certain obligations that Australia has as a party to the Convention on Tobacco Control; and
address the public health risks posed by vaping and the use of e-cigarette products.
1.6In his second reading speech, the Minister for Health and Aged Care, theHonMark Butler MP (the Minister) explained that the bill consolidates the existing Commonwealth tobacco control framework into one Act, with associated regulations, to streamline the operation of the laws.
1.7The Minister also explained that the bill:
modernises and simplifies existing provisions;
introduces new measures to discourage smoking and prevent the promotion of vaping and e-cigarettes;
is consistent with Australia’s obligations as party to the World Health Organization Framework Convention on Tobacco Control (WHO FCTC);
complements Australia’s National Tobacco Strategy 2023–2030; and
reflects best available evidence and the experience of international regulators including Canada, New Zealand and Uruguay.
1.8In relation to the Consequential Amendments and Transitional Provisions bill, the Minister explained that it repeals a number of instruments as a result of their consolidation into the main bill, and makes consequential amendments to update references to the new legislation.
1.9The Minister outlined that the Consequential Amendments and Transitional Provisions bill provides for application, saving and transitional provisions to allow ‘a smooth transition to the new requirements’, and that it establishes a main transition period of 12months, along with a retailer transition period of a further three months to allow for sell‑through of existing stock.
Background
1.10This section outlines background information regarding tobacco use, Australia’s existing tobacco control framework, review and consultation efforts regarding the proposed bills.
Tobacco use and related harm
1.11According to the Australian Institute of Health and Welfare, 11 per cent of Australians smoked tobacco daily in 2019, which is a decrease from 12.2percent in 2016 and 24 per cent in 1991. In contrast, data indicates that e‑cigarette use is increasing, with the proportion of people who had ever used e‑cigarettes rising from 8.8percent in 2016 to 11.3 per cent in 2019.
1.12The harms associated with tobacco use and production are well established. Despite Australia’s success in recent decades to reduce smoking rates, tobacco smoking remains the leading cause of preventable death and disability in Australia and is estimated to have killed approximately 1.28 million Australians between 1960 and 2020. Further, in 2015–16, tobacco use was estimated to cost the Australian community $137billion.
1.13Currently, up to two-thirds of deaths in tobacco smokers can be attributed to smoking and on average, people who smoke aged 45 and above, are estimated to die 10 years earlier than those that do not smoke. Tobacco smoking can also cause a range of diseases including cancer, chronic lung and heart disease, diabetes, infections, dental problems, chronic respiratory conditions, hearing and vision loss, fertility problems, osteoporosis and early menopause in women.
1.14Further, tobacco use compounds and contributes to existing health and social inequalities in Australia. It is the greatest contributor to the health gap between FirstNations peoples and other Australians, and causes more than one-third of all deaths in First Nations populations.
1.15Some population groups are more likely to use tobacco and face greater barriers to quitting. Some groups are also more vulnerable to the health impacts of tobacco, regardless of whether they have higher rates of tobacco use. These cohorts include, but are not limited to, people from socioeconomically disadvantaged areas, people living with mental illness, people with a chronic health condition, pregnant people, as well as children and young people.
1.16Exposure to second-hand smoke is also a significant cause of preventable death and disability in Australian adults and children.
Australia’s current tobacco control framework and rational for new measures
1.17In Australia, tobacco regulation is shared between the Commonwealth, state and territory governments, and covers a range of areas, including:
taxation;
sale and importation of tobacco products;
advertising, promotion and sponsorship;
packaging and labelling requirements;
illicit/banned tobacco products; and
public health requirements.
1.18Over the years, Australian governments at all levels have progressively implemented wide-ranging, evidence-based tobacco control measures to reduce the prevalence of smoking and its associated health, social, environmental and economic costs.
1.19The National Tobacco Strategy 2023–2030 (the Strategy), released in May 2023, establishes Australia’s national policy framework for tobacco control and complements existing policies and legal frameworks in states and territories. It operates as a sub-strategy of the National Drug Strategy 2017–2026 and complements the Australian Government’s National Preventive Health Strategy 2021–2030.
1.20Further, the Strategy provides:
… an overview of the effects of tobacco use in Australia, and outlines shared goals, objectives, principles and targets for tobacco control across government and non-government agencies between 2023 and 2030. It also identifies 11 priority areas and associated actions to be implemented, together with mechanisms for monitoring and evaluation.
1.21The Strategy includes the following targets:
For adults aged 18 and over, achieve a national daily smoking prevalence of less than 10 per cent by 2025, and 5 per cent or less by 2030; and
For First Nations people 15 years and older, reduce the daily smoking rate to 27 per cent or less by 2023.
1.22Australia is also signatory to the WHO FCTC, which provides a framework for countries to cooperate on tobacco-related actions and policies and aims to protect people in all countries from the health, social, environmental and economic effects of tobacco.
1.23Currently, the Commonwealth’s regulatory framework regarding tobacco control comprises eight different tobacco-related Acts, legislative instruments and court decisions administered across the Health and Treasury portfolios.
1.24On 30 November 2022, the 10th anniversary of the introduction of plain packaging legislation in Australia, the Minister announced that the AustralianGovernment planned to consolidate all of Australia’s current tobacco measures into a single Act, along with the introduction of 11 new measures.
1.25The Minister argued that Australia’s current ‘patchwork quilt of eight different tobacco-related laws, regulations, instruments and court decisions is convoluted, outdated and full of loopholes’ and that additional reforms would ‘reignite the fight against tobacco and nicotine addiction’ and put Australia back into a world-leading position, alongside Organisation for Economic Co‑operation and Development (OECD) counterparts New Zealand and Canada.
Thematic review and consultation efforts
1.26The Commonwealth’s legislative framework for tobacco control, including the Tobacco Advertising Prohibition Act 1992, the Tobacco Plain Packaging Act 2011, and associated regulations, are due to sunset on 1April 2024 and have been subject of a thematic review conducted by the Department of Health and Aged Care (the department).
1.27According to the department, the thematic review involved:
… a comprehensive analysis aimed at identifying options to modernise the legislative framework for tobacco control, ensuring it remains fit-for-purpose, addresses current gaps and limitations and will assist with tackling future challenges in tobacco control.
1.28The department advised that the thematic review also included identifying options to enable Australian laws to ‘keep up’ with the evolving tobacco environment, to address challenges such as novel and emerging products and marketing strategies which influence consumer behaviour and undermine existing tobacco control measures. The thematic review also considered:
international best practice and precedents;
submissions received in public consultations;
the available evidence-base; and
Australia’s ongoing obligations under the WHO FCTC.
1.29Further, the department explained that the government ‘consultedbroadly’ on the proposed reforms, including an initial consultation in 2019, and a six-week public consultation on the exposure draft from 31 May 2023. All consultations involved both written public consultation and targeted face-to-face stakeholder workshops.
1.30According to the department, the reforms proposed in the bills reflect the outcome of the thematic review and public consultations, and recognise that further progress is needed to combat smoking rates, discourage uptake, and encourage cessation to achieve the targets outlined in the National Tobacco Strategy 2023–2030.
Reforms to address e-cigarettes
1.31The department’s submission noted that whilst the bill seeks to regulate advertising and promotion of e-cigarettes, they do not address the broader issue of e-cigarette availability and supply.
1.32The department advised that the Australian Government has committed to introducing new controls on e-cigarette importation, contents and packaging and that together with state and territory governments, it is separately developing these reforms to ‘protect Australians from the harms of e-cigarettes through stronger legislation, enforcement, education and support’.
Financial impact statement
1.33The financial impact statement included in the Explanatory Memorandum to the bills noted that costs to government to implement the proposed measures ‘are minimal’ and are attributable to compliance activities such as compliance testing of product ingredients. It further explained:
There may be initial costs associated with authorised officer training and education activities to support implementation of the new measures such as publication of fact sheets to assist compliance and inform consumers and retailers of new requirements.
1.34The statement advised that costs for the measures will be met through existing resources of the Department of Health and Aged Care.
Compatibility with human rights
1.35The bills’ Statement of Compatibility with Humans Rights (the statement) notes that the bills collectively engage the following rights:
Right to health;
Right to life; and
Right to freedom of expression.
1.36In addition, the statement notes that the main bill engages the following rights:
Right to freedom of opinion;
Right to take part in public affairs or elections;
Right to privacy;
Right to a fair trail and fair hearing rights;
Right to a presumption of innocence.
1.37The statement advises that the bills are compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and that the bills will give effect to certain obligations that Australia has as a party to the WHOFCTC.
1.38The statement also notes that the main bill is compatible with human rights ‘because to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate’.
Consideration by other committees
1.39The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) made comments on the bill in its Scrutiny Digest 12 of 2023, raising issues around provisions in the bill which reverse the evidential burden of proof and the legal burden of proof, as well as the bill’s broad scope of offence provisions and delegation of administrative power.
1.40The Scrutiny Committee made several requests to the minister for detailed advice including:
why it is considered necessary and appropriate to confer immunity from liability on the minister, secretary, authorised officers and persons acting under authorised officers in clause 183 of the bill;
why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) for the defences listed in subclauses 19(3) and 42(3) under Chapter 2 of the bill, as well in other categories of defences under Chapter 3 of the bill;
why it is proposed to reverse the legal, rather than evidential, burden of proof in relation to clause 17 and subclauses 19(9), 20(4), 42(9) and 43(4);
what types of material expected to be captured by subclauses 20(4)(c) and 43(4)(c);
how it is anticipated a defendant would be able to rebut a presumption as to whether material is a tobacco or e-cigarette advertisement where the presumption has arisen due to the operation of subclauses 20(4)(c) or 43(4)(c); and
why it is necessary to confer monitoring and investigation powers on any person to assist an authorised officer and what qualifications, training or experience a person assisting will be required to have in order to be appointed.
1.41The Parliamentary Joint Standing Committee on Human Rights made no comment on the bills.
Conduct of the inquiry
1.42Details of the inquiry were made available on the committee’s website. The committee also contacted a number of organisations and individuals to invite written submissions by 6 October 2023.
1.43The committee received 77 submissions, as listed in Appendix 1.
1.44The committee held three public hearings in Canberra and via videoconference on:
30 October 2023;
1 November 2023; and
2 November 2023.
1.45A list of witnesses who gave evidence at the public hearings is available at Appendix 2.
Transparency and accountability
1.46The committee also conducted the inquiry in accordance with the department’s guidance for public officials on interacting with the tobacco industry.
1.47This guidance outlines the legal obligations placed on public agencies and officials by the WHO FCTC, in particular, Article 5.3, which requires public officials to protect public health policies in relation to tobacco control ‘from commercial and other vested interests of the tobacco industry’.
Note on references
1.48References to Committee Hansard in this report are to proof transcripts. Pagenumbers may vary between proof and official transcripts.
Key provisions – Public Health (Tobacco and Other Products) Bill 2023
1.49The bill comprises seven chapters:
Chapter 1 – Preliminary
Chapter 2 – Advertising and sponsorship prohibitions
Chapter 3 – Tobacco product requirements
Chapter 4 – Permanent bans on certain tobacco products
Chapter 5 – Reporting and information disclosure
Chapter 6 – Compliance and enforcement
Chapter 7 – Miscellaneous
1.50The bill would consolidate eight existing tobacco related regulations and instruments into a single Act, including the:
Tobacco Advertising Prohibition Act 1992 (TAP Act);
Tobacco Advertising Prohibition Regulation 1993;
Tobacco Plain Packaging Act 2011 (TPP Act);
Tobacco Plain Packaging Regulations 2011;
Competition and Consumer (Tobacco) Information Standard2011
Trade Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes) Regulations 2008;
Trade Practices Act 1974 – Consumer Protection Notice No. 10 of 1991 – Permanent Ban on Goods; and
the following court enforceable undertakings between the Australian Competition and Consumer Commission and tobacco companies issued in 2005:
Philip Morris, ref D05/23079;
British American Tobacco Australia, ref D05/23081; and
Imperial Tobacco Limited, ref D05/68710.
1.51If passed, sections 1 and 2 of the bill would commence on the day it receives Royal Assent, and sections 3 to 185 would commence on a day to be fixed by Proclamation, or the day after a six-month period after Royal Assent.
1.52Key provisions under each chapter are outlined in the sections below.
Chapter 1 – Preliminary
1.53Chapter 1 of the bill sets out preliminary matters including commencement dates, objects of the Act, and interpretation provisions including definitions and key concepts.
Objects and definitions
1.54Subclause 3(1) sets out the objects of the bill, as outlined at the beginning of this chapter. The Explanatory Memorandum notes that subclause 3(2) sets out the means for achieving the bill’s objectives, and recognises that they can only be achieved in combination with other tobacco control measures.
1.55Clause 8 provides definitions for key terms under the bill.
1.56Clause 9 sets out the meaning of ‘tobacco product’ under the bill. Subclause 9(1) establishes that a tobacco product means processed tobacco in any form, or any product that contains tobacco as an ingredient, that is designed or intended for human consumption or use. Subclause 9(2) makes clear that ‘tobacco product’ also includes parts of a tobacco product that are not tobacco, including paper and filter tips in cigarettes.
1.57Clause 11 provides a basic definition for e-cigarette for the purpose of the bill. Subclause 11(1) establishes that an e-cigarette means:
… a device (whether or not containing nicotine or tobacco) that generates or releases, or is designed or intended to generate or release, by electronic means, an aerosol or vapour for inhalation by its user in a way that resembles, or produces an experience similar to, smoking.
1.58A note under subclause 11(1) provides examples of e-cigarettes including vapes, e-pens, e-hookah pens, e-cigars and e-pipes. Further, subclause 11(2) clarifies that a device may be an e-cigarette even if the device resembles a toy, food, drink, cartoon character, animal, musical instrument, vehicle or household or personal object.
1.59Clauses 10 and 12 will introduce new definitions for ‘tobacco product accessory’ and ‘e-cigarette accessory’.
1.60A ‘tobacco product accessory’ would include:
crush balls, beads, capsules or other devices that are designed or intended to alter the flavour, smell or intensity of a tobacco product; and
novel cigarette filters, papers, wrappers or pipes which are intended to make products more attractive to current smokers and attract new users.
1.61An ‘e-cigarette accessory’ would include:
cartridges, capsules, pods or other vessels that contain or that are intended to contain a liquid, gas, aerosol, vapour or other substance for use in an e‑cigarette;
such liquids, gases, aerosols, vapours or other substances;
heating elements designed or intended for use in an e-cigarette; and
batteries specifically designed or intended for use in an e-cigarette.
Exclusions for certain therapeutic goods
1.62The bill establishes exclusions for certain therapeutic goods.
1.63Subclauses 9(5) and 11(5) clarify that a tobacco product or e-cigarette, as defined under the bill, will not include a product that is entered on the Australian Register of Therapeutic Goods under the Therapeutic Goods Act 1989.
1.64Subclauses 10(5) and 12(4) also clarify that tobacco and e-cigarette accessories, as defined by the bill, will not include products that are entered on the Australian Register of Therapeutic Goods under the Therapeutic Goods Act 1989.
Chapter 2 – Advertising and sponsorship prohibitions
1.65Chapter 2 of the bill incorporates existing requirements in the TobaccoAdvertising Prohibition Act 1992 and Tobacco Advertising Prohibition Regulation 1993 relating to tobacco advertising, promotion and sponsorship prohibitions. It expands the scope of these prohibitions and introduces new provisions relating to the advertising and promotion of e-cigarettes.
Prohibition of tobacco and e-cigarette advertisements, including on the internet and social media
1.66Parts 2.2 and 2.4 of the chapter deal with the prohibition tobacco and e-cigarette advertisements.
1.67Clause 20 defines tobacco advertisement to mean:
… any form of communication, recommendation or action that promotes, or is likely to promote, the following (whether directly or indirectly):
(a)smoking;
(b)a regulated tobacco item or use of such an item.
1.68Clause 43 defines e‑cigarette advertisement to mean:
… any form of communication, recommendation or action that promotes, or is likely to promote, the following (whether directly or indirectly):
(a)vaping;
(b)an e-cigarette product or the use of such a product.
1.69Clauses 30 and 56 extend existing prohibitions to apply to tobacco and e‑cigarette advertising on the internet and other forms of social media in the future. These clauses are intended to capture a wide range of communications and establish that a person publishes a tobacco or e-cigarette advertisement if the person uses any means of communication to make it available to the public.
1.70Subclauses 30(3) and 56(3) relate to targeted online advertising and provide that material is considered to have been communicated to the public where it has been made available to a person using the internet through the use of an algorithm, the person’s online activity or any other characteristic of that person as an internet end user.
1.71Subclauses 30(4) and 56(4) make clear that material is considered to have been communicated to the public where it has been communicated at a private event or function for the purpose of promoting smoking, vaping, tobacco or e‑cigarettes products, or manufacturers, importers, distributors or retailers of such products.
1.72Subclauses 20(6) and 43(6) would allow the government to make regulations prescribing a kind of material to be either a tobacco or e-cigarette advertisement.
1.73Clauses 21 to 29 establish exceptions as to what is considered a tobacco advertisement. For example, communications that involve government or political matters, the publication of material in certain circumstances relating to a news or current affairs report, for academic purposes, or for artistic works are excepted.
1.74Clauses 44 to 52 establish similar exceptions as to what is considered an e‑cigarette advertisement. Clauses 53 to 55 provide exceptions for advertisements and permitted representations relating to e-cigarette products that are a therapeutic good within the meaning of the Therapeutic Goods Act 1989.
1.75Clauses 19 and 42 provide that contraventions of the tobacco and e-cigarette advertising provisions will give rise to a fault-based offence, an offence of strict liability and a civil penalty provision.
Prohibition of tobacco and e-cigarette sponsorships
1.76Parts 2.3 and 2.5 of chapter 2 of the bill deal with the prohibition of tobacco and e-cigarette sponsorships.
1.77Clause 39 defines tobacco sponsorship to mean:
… any form of contribution (whether financial or otherwise) to an event, activity or individual that promotes, or is likely to promote, the following (whether directly or indirectly):
(a)smoking;
(b)a regulated tobacco item or the use of such an item.
1.78Clause 66 defines e-cigarette sponsorship to mean:
… any form of contribution (whether financial or otherwise) to an event, activity or individual that promotes, or is likely to promote, the following (whether directly or indirectly):
(a)vaping;
(b)an e-cigarette product or the use of such a product.
1.79Subclauses 39(2) and 66(2) would allow the government to make regulations prescribing a kind of contribution to be either a tobacco or e-cigarette sponsorship.
1.80Clauses 40 and 67 make exceptions for tobacco and e-cigarette sponsorship in relation to political donations and electoral expenditure.
1.81Clauses 38 and 65 provide that contraventions of the tobacco and e-cigarette sponsorship provisions will give rise to a fault-based offence, an offence of strict liability and a civil penalty provision.
Chapter 3 – Tobacco product requirements
1.82Chapter 3 of the bill incorporates existing requirements in the Tobacco Plain Packaging Act 2011, and associated regulations, relating to plain packaging of tobacco products, and introduces several new measures aimed at reducing the appeal of tobacco products.
1.83Provisions relating to key measures are outlined in the sections below.
Prohibited terminology in relation to brand and variant names
1.84Clauses 73, 77 and 85 set out prohibitions for the use of appealing brand and variant names of tobacco products that imply reduced harm.
1.85Subclause 73(1) provides that prohibited terms include:
A term that implies no or reduced harm. For example, low tar, light, lite, mild, ultra-light, ultra-lite.
A term that refers to, or implies, a positive quality. For example, cool, extra, fresh, smooth, ultra.
A colour. For example, black, blue, gold, red, white.
A term that refers to a filter. For example, charcoal filter, firm filter, flo-filter.
A non-alphabetical character (other than ‘&’), a numeral in any form, or an ideograph. For example, !, #, $, two or 2, iii or 3, fifty or L, ☺.
A term that refers to, or implies, positive health effects. For example, organic, natural, additive-free.
A term that suggests the inclusion of a prohibited ingredient. For example, caffeine, menthol, vitamin.
1.86Subclause 73(2) provides for a regulation-making power to allow further prohibited terms to be prescribed.
Standardisation of tobacco pack and pouch sizes
1.87Clause 76 allows regulations to prescribe additional requirements for tobacco products relating to the number of units, weight and volume of a tobacco product and the pricing of tobacco products.
1.88Subclause 76(2) provides an exception for shisha tobacco products under this clause.
Updating and improving health warnings
1.89Clause 78 relates to updating and improving graphic health warnings on packaging.
1.90Subclause 78(1) provides that the retail packaging of tobacco products must display the images, or the combination of images, prescribed by regulations under this clause.
1.91The Explanatory Memorandum notes that these images, or combination of images, will include messages, information, and graphics about the health consequences of smoking and contents of tobacco products. Further, cessation support information such as the Quitline phone number, will be required to appear on the retail packaging of the tobacco product.
1.92Subclause 78(2) provides that the Commonwealth Chief Medical Officer must recommend any images before regulations can be prescribed under this clause.
1.93Subclause 78(3) provides that where new health warnings are prescribed in regulations, these will not commence for at least six months to allow an appropriate transition period from initial regulations.
Requiring health promotion inserts in tobacco product packaging
1.94Clause 82 provides a requirement of health promotion inserts in packs and pouches.
1.95Subclause 82(1) makes clear that the retail packaging of tobacco products, as defined under the bill, must include health promotion inserts or onserts prescribed by regulations, but must not include any other inserts or onserts.
1.96Subclauses 82(3) provides that the Commonwealth Chief Medical Officer must recommend any health promotion inserts before they can be prescribed.
1.97Subclause 82(4) provides that where new regulations are made prescribing health promotion inserts, there must be a six-month transition period, in line with requirements under clause 78.
Appearance of tobacco products including on-product health warnings
1.98Clause 86 deals with the appearance and physical features of tobacco products.
1.99The Explanatory Memorandum to the bill notes that dissuasive measures on tobacco products themselves (rather than just on packaging) could be implemented as a ‘on-product health warnings’ such as ‘Causes stroke’, or through the use of colour aiming to dissuade people from tobacco use.
1.100Subclauses 86(3) and 86(4) set out that the appearance and physical features of tobacco products must comply with requirements prescribed by regulations under this clause.
1.101Subclause 86(5) provides that the Commonwealth Chief Medical Officer must recommend any images or text to appear on a tobacco product, before those images or text can be prescribed under this clause.
1.102Subclause 86(6) provides that where new regulations are made prescribing images or text on tobacco products, these will not commence for at least six months after the day the regulations are made.
Restrictions on tobacco product flavours, additives, devices and accessories
1.103Clause 87 restricts the use of flavours and additives.
1.104Subclause 87(1) establishes that a tobacco product must not contain an ingredient prohibited by regulations.
1.105Subclause 87(2) provides that subclause 87(1) does not apply to a shisha tobacco product insofar as that product contains molasses. Therefore, this clause doesnot prohibit molasses in shisha tobacco products.
1.106Clause 88 provides that a tobacco product must not contain any device prohibited by the regulations. The Explanatory Memorandum explains that this clause is intended to prohibit devices such as flavour capsules or crush balls, that form part of a processed tobacco product and which have novelty value and act as an incentive to consume the product.
1.107Clause 91 prohibits tobacco product accessories, such as flavoured filter tips and flavour cards, that alter, or are capable of altering, the flavour or smell of tobacco products.
General offences and civil penalties relating to tobacco product requirements
1.108Part 3.4 of chapter 3 of the bill creates several offences relating to tobacco products and packaging that do not comply with plain packaging requirements.
1.109According to the Explanatory Memorandum, these offences relate to the sale or supply, purchase, packaging, or manufacturing of tobacco products for retail sale. These offences will apply to commercial participants in the tobacco industry in Australia who fail to comply with requirements for tobacco products and packaging. They will not apply to people who purchase tobacco products for personal use.
Chapter 4 – Permanent bans on certain tobacco products
1.110Chapter 4 consolidates existing provisions which permanently ban certain tobacco products.
1.111Clause 126 provides that chewing tobacco and snuffs intended for oral use are permanently banned tobacco products. According to the Explanatory Memorandum, the permanent ban is intended to replace the existing permanent ban under the Competition and Consumer Act 2010.
1.112Clauses 127 and 128 set out that a person who contravenes this ban, by dealing in, or possessing, such a product may commit an offence or be liable for a civil penalty.
Chapter 5 – Reporting and information disclosure
1.113Chapter 5 sets out new reporting requirements for the tobacco industry. Reporting entities, as defined by the bill, will be required to submit reports on:
the ingredients used in manufacturing tobacco products;
the volume of tobacco products imported into, sold or supplied in Australia;and
advertising and promotional expenditure.
1.114Clause 130 defines ‘reporting entity’ under the bill to mean:
(a)a person who is a manufacturer of tobacco products that are sold or supplied, or offered for sale or supply, in Australia;
(b)a person who is an importer of tobacco products that are sold or supplied, or offered for sale or supply, in Australia.
1.115Subclauses130(2) and 130(3) establish how reporting entities may be prescribed by the regulations.
Tobacco product ingredient reporting requirements
1.116Subclauses 131(1) and 131(2) require reporting entities to give the Secretary a report that identifies the ingredients used in manufacturing each kind of tobacco product sold or supplied, or offered for sale or supply, by the entity in Australia during each financial year, within 30 days after the end of each financial year.
1.117Subclause 131(3) outlines the required contents of the reports. It provides that the report must identify the brand and variant names of the product, the common chemical and trade name of each ingredient, the purpose for which the ingredient is used, and the amount the ingredient is used in the product.
Tobacco product volumes reporting requirements
1.118Subclauses 132(1) and 132(2) require reporting entities to give the Secretary a report for each kind of tobacco product sold or supplied, or offered for sale or supply by the entity in Australia during each financial year, within 30 days after the end of each financial year.
1.119Subclause 132(3) sets out the required contents for this report:
(a)if the reporting entity is an importer—the total number of units imported by the reporting entity;
(b)if the reporting entity is an importer—the total mass, in kilograms, imported by the reporting entity;
(c)the total number of units sold or supplied by the reporting entity;
(d)the total mass, in kilograms, sold or supplied by the reporting entity;
(e)the total Australian dollar value of sales revenue, including excise duty;
(f)the total number of units destroyed by the reporting entity;
(g)the total mass, in kilograms, destroyed by the reporting entity.
Marketing and promotional expenditure reporting requirements
1.120Subclauses 133(1) and 133(2) require reporting entities to give the Secretary a report about marketing and promotional expenditure activities conducted by the entity during a financial year, within 30 days after the end of each financial year.
1.121Subclause 133(3) sets out the required contents for this report:
(a)marketing, promotion and sponsorship (such as corporate hospitality functions);
(b)corporate social responsibility activities;
(c)developing and designing retail packaging for tobacco products;
(d)contributions of a kind mentioned in subsection 40(1);
(e)lobbying;
(f)services or funding provided to any industry group or organisation that seeks to influence the development of public policy relating to tobacco control;
(g)philanthropy;
(h)rebates and reward systems offered to distributors and retailers of tobacco products;
(i)arrangements entered into with social media influencers.
1.122Subclause 133(4) requires that for each activity mentioned in subclause 133(3), the report must include:
(a)a description of the activity; and
(b)the expenditure on the activity during the financial year; and
(c)the kind of tobacco product (if any) in relation to which the activity was undertaken.
Other reporting matters
1.123Clause 138 provides that a reporting entity may combine these reports into one report for the relevant financial year, and clause 134 establishes that the Secretary may, by notifiable instrument, determine that a reporting entity is not required to provide one or more reports.
1.124Clause 145 provides that the Minister must publish each report by a reporting entity, unless they are satisfied that it would not be appropriate to do so.
1.125Subclause 145(3) states that the Minister must not publish information in a report that is a trade secret of the reporting entity, or other information that is of commercial value to the reporting entity, that would or could be destroyed is the information was publicly disclosed.
1.126Clause 147 would allow the Minister to publish information about failures to comply with the reporting requirements under this chapter. The Minister would have the power to publish the identity of the reporting entity and the details of non-compliance, after written notice and reasons for the decision are provided to the relevant entity.
1.127Clause 148 establishes that contraventions of the reporting requirementsgive rise to a fault based offence, an offence of strict liability and a civil penalty provision.
Chapter 6 – Compliance and enforcement
1.128Chapter 6 outlines compliance and enforcement activities. It provides for the appointment of authorised officers and supporting monitoring and investigation powers, along with civil penalty provisions and provisions for infringement notices, enforceable undertakings, and injunctions.
1.129Clause 150 deals with the appointment of authorised officers and allows the Secretary to appoint people to assist in enforcing the legislation.
1.130Clauses 151 and 152 outline powers to require persons to give information, produce documents, require attendance, and answer questions relevant to the administration or enforcement of the legislation.
1.131Clauses 154 to 159 set out monitoring and investigative powers of authorised officers under the legislation and the Regulatory Powers (Standard Provisions) Act2014.
1.132Clauses 160 to 163 set out the mechanisms for enforcing civil penalty provisions, issuing infringement notices, accepting enforceable undertakings and obtaining injunctions.
Chapter 7 – Miscellaneous
1.133Chapter 7 sets out miscellaneous provisions such as general rules about offences and civil penalty provisions, the treatment of partnerships, unincorporated associations and trusts, cost recovery provisions, constitutional authority for the Act and delegation powers.
1.134If passed, sections 1 to 3 of this bill would commence on the day it receives RoyalAssent, and schedules 1 and 2 would commence either the same time as section 3 of the Public Health (Tobacco and Other Products) Bill 2023 commences, or not at all.
Schedule 1 – Repeals and consequential amendments
1.135Proposed sections 1 and 2 would repeal the Tobacco Advertising Prohibition Act 1992 and the Tobacco Plain Packaging Act 2011, as a consequence of the consolidation and streamlining of these provisions in the Public Health (Tobacco and Other Products) Bill 2023.
1.136Proposed sections 3 to 25 deal with consequential amendments to the following Acts:
Broadcasting Services Act 1992
Competition and Consumer Act 2010
Criminal Code Act 1995
Social Security (Administration) Act 1999
Taxation Administration Act 1953
Trade Marks Act 1995.
Schedule 2 – Application, saving and transitional provisions
1.137Proposed section 1 sets out definitions including:
‘commencement day’ which means the day section 3 of the Public Health (Tobacco and Other Products) Bill 2023 (the new Act) commences;
‘main transition period’ which means the period of 12 months beginning on the commencement day; and
‘retailer transition period’ which means the period of 3 months beginning immediately after the end of the main transition period.
1.138Proposed sections 3 and 4 deal with the application of the prohibitions of tobacco and e-cigarettes sponsorships.
1.139Proposed sections 6 to 14 set out the main transitional arrangements relating to plain packaging requirements under Chapter 3 of the Public Health (Tobacco and Other Products) Bill 2023, including in relation to:
physical features;
colour and finish;
brand and variant names;
health warnings;
mandatory markings;
wrappers; and
inserts and onserts (other than health promotion inserts).
1.140Proposed sections 15 and 16 set out extended transitional arrangements for retailers, extending the main transitional period for retailers by a further three months.
1.141Proposed sections 18 to 27 set out the application of new tobacco product requirements after the end of the main transition period.
1.142Proposed section 28 provides that reporting entities are obliged to submit their reports on tobacco product ingredients, product volumes, and marketing and promotional expenditure, in relation to the 2024–2025 financial year, and each financial year thereafter.
1.143Proposed section 29 sets out transitional provisions relating to compliance and enforcement, and proposed section 33 provides for the minister to make rules by legislative instrument, that may prescribe matters of a transitional nature.