David Bushby (Tasmania, Liberal Party) Share this | Hansard source

I also rise to contribute to the Tobacco Plain Packaging Amendment Bill 2018. Tobacco use is the leading cause of preventable and premature death and disability in Australia and contributes to and compounds existing health and social inequalities. Tobacco use is the only risk factor shared by all four main categories of non-communicable disease—namely, cardiovascular disease, cancer, chronic respiratory diseases and diabetes. The most recently available estimate showed that the social and economic cost of smoking, including health costs, in Australia was $31.5 billion in 2004-05. I imagine that, since then, that cost has only increased. In 2001, tobacco use killed almost 19,000 people in Australia and was responsible for nine per cent of the total burden of disease and injury, making it the most burdensome risk factor.

On 1 June 2007, the Australian Institute of Health and Welfare released the National Drug Strategy household survey 2016 key findings which showed that the decline in smoking prevalence rates among daily smokers aged 14 years and over in Australia slowed in 2016, only declining slightly from 12.8 per cent in 2013 to 12.2 per cent, which is not in itself statistically significant. In 2016, those living in remote or very remote areas were approximately twice as likely to report being daily smokers compared to those living in major cities. Daily smoking rates among those living in regional areas were also 40 per cent to 70 per cent higher compared to those living in major cities over the same period. The 2014-15 National Aboriginal and Torres Strait Islander Social Survey shows that in 2014-15 the proportion of Indigenous people aged 15 years and over who were daily smokers was 38.9 per cent, which is down from 44.6 per cent in 2008 and 48.6 per cent in 2002. The AIHW report, Burden of cancer in Australia: Australian burden of disease study 2011, shows that tobacco was the largest risk factor that contributed to the burden of cancer. Tobacco contributed to 11 different types of cancer and was responsible for almost twice as many cancer disability adjusted life years in males than females. Almost one quarter, 22 per cent, of the total cancer burden can be attributed to tobacco use. In 2016, it was estimated that lung cancer would be the leading cause of cancer death in both females and males: 3,720 females and 5,120 males.

It's pretty clear from those statistics that smoking prevalence in Australia is not a good thing and reasonable measures to assist in the reduction of the prevalence of smoking in Australia is a good thing. Over the past several decades the Australian government has implemented a broad range of tobacco control measures, including: excise increases on tobacco—and I acknowledge the contribution of Senator Abetz about some of the consequences of doing so; education programs and campaigns; plain packaging of tobacco products; labelling of tobacco products with updated and larger graphic health warnings; prohibiting tobacco advertising, promotion and sponsorship; and providing support for smokers to quit. It is claimed and believed by many that this multifaceted approach to tobacco control and the collaboration between the Commonwealth, the states and territories and non-government organisations has been instrumental in achieving the decline in smoking that has been recorded.

One perverse consequence of tobacco control, is, of course that it increases the likelihood that those who are addicted to tobacco—and Senator Cameron noted that that is what nicotine does; it does actually create a very strong addiction—will look to alternative, illegal methods of obtaining their nicotine. So, one of the things that the government is doing is also improving its ability to deal with illicit tobacco sales. The Department of Health has policy responsibility for illicit tobacco in relation to its work under the World Health Organization Framework Convention on Tobacco Control, its work on the development of the National Tobacco Strategy and, broadly, its work to reduce smoking prevalence rates.

Although the department takes a significant interest in illicit tobacco and the market drivers that influence illicit trade, it does so from a health perspective, ensuring that consumers are provided with a full suite of government strategies aimed at reducing tobacco consumption rates in Australia. The department is proactively engaging with other agencies on the issue of illicit tobacco to increase cooperation and collaboration. It is concerned about the illicit trade in tobacco products, because it impacts directly on the effectiveness of price based public health policies, and smokers accessing illicit products may not benefit from other public health measures, including tobacco plain packaging and graphic warnings. In the end, balance is needed between measures that incentivise people to use illicit tobacco and control measures, which lead to a decrease in smoking in some, but lead others to look for their tobacco hit elsewhere.

Turning now to the specifics of this bill, as mentioned, tobacco use is a leading cause of preventable and premature death and disability in Australia, which is why the government is committed to reducing the number of smokers. Australia is a world leader in tobacco control, and tobacco plain packaging is an important element of Australia's tobacco control measures. This measure was introduced under the last government—a measure I had real reservations about and, if truth be told, still do. Those reservations stem from my belief that so long as a product is legal to be sold, governments should be cautious about how they interfere with the rights of producers of those products, including how they deal with the rights associated with trademarks and their rights to market their legal trademarks to those who would choose to purchase them. Of course tobacco, although legal, is different from many other products because it is clearly a product whose use is highly detrimental to the health of its users and which is highly addictive once use has started, and also because the negative health consequences of its use have a broader impact than just on the smokers and their families, with the cost to the taxpayer that flows from smoking-related health treatment and other issues, as noted, estimated to be in the many billions.

As such, there is clearly the broader policy issue of the impact it has on taxpayer funded resources, and not just on an individual's right to choose whether to smoke and to personally accept the consequences. The question for me was whether the specific nature of smoking and the public resource consequence outweighed the principle that private property rights should not be infringed by government without compensation. There is no doubt government should do all that it can and that is right to reduce smoking rates, as achieving that outcome is an undeniable public good. A government, in my view, should also be a fierce guarantor and protector of property rights and individual freedoms. In this case, it seemed to me these two desirable public aims, at least to some extent, came into conflict.

In the end, I remained troubled. But, nonetheless, plain packaging was legislated and is now the law. Although there is some conflicting interpretation of the statistics since, it does appear that the incidence of smoking in Australia has fallen, an unarguably good thing on all fronts and something which is absolutely required, as a result of the legislation, in order to justify the imposition of the burden the law placed on affected entities. The role plain packaging played in that fall in smoking incidence is also hard to calculate. Let's hope it is a significant factor and, on that basis, look forward. This bill is intended to ensure the plain packaging law works as well as possible.

Under the Tobacco Plain Packaging Act 2011, plain packaging compliance and enforcement activities are undertaken by authorised officers. Authorised officers must be persons appointed or engaged under the Public Service Act 1999 or a member or special member of the Australian Federal Police. A person is appointed as an authorised officer in writing by the Secretary to the Department of Health. The bill proposes to expand the range of persons who can be appointed as authorised officers. The bill will allow the secretary to appoint as authorised officers, Commonwealth officers not appointed or engaged under the Public Service Act 1999, state and territory police officers and state and territory officers and local government officials with responsibilities in relation to health matters or tobacco control compliance and enforcement.

The bill will enable the government to respond more flexibly to noncompliance with the tobacco plain packaging legislation. It will provide the Department of Health with access to a wider pool of officers eligible for appointment as authorised officers, providing greater flexibility to respond to any organisational or administrative changes which may occur in the future. This will also provide more opportunities for authorised officers to cooperate and respond to potential noncompliance. Importantly, the bill does not change the plain packaging requirements, do not make them any more stringent and will not impact the obligations of tobacco manufacturers, distributors or retailers.

Consultation with each relevant state and territory agency has been undertaken. This is important as their officers will be impacted. At the conclusion of the consultation, no agencies opposed the amendment. Some state and territory agencies emphasised that their support was provided specifically on the basis that their officers would only be appointed as authorised officers where there is a formal agreement in place. Negotiations indicated that, for these agencies to be comfortable with the impact this bill would have on it passing, a clause needed to be included providing that the appointment would only be by agreement with the relevant state or territory.

So what is the purpose of the bill? As mentioned the Tobacco Plain Packaging Amendment Bill 2018 is primarily intended to allow for the ongoing appointment of National Measurement Institute officers as authorised officers. The National Measurement Institute, a division of the Commonwealth Department of Industry, Innovation and Science, currently undertakes compliance and enforcement activities on behalf of the department under the act. The structure of the NMI may change in the future in such a way that NMI officers may no longer be engaged under the Public Service Act. Under the law as it stands, authorised officers must be persons appointed or engaged under the Public Service Act or a member or special member of the Australian Federal Police. In addition, the Secretary to the Department of Health must be satisfied that the person has suitable qualifications, training or experience. The inclusion of relevant state and territory health officers, state and territory police officers and local government officers is to provide future flexibility and increased cooperation to respond to noncompliance with the act should it be needed and agreed at some point down the track.

I've already mentioned the consultation with states and territories and given a summary of their approach to the proposed changes. Just what are the implications for state and territory health departments or local government? The proposed changes place no obligation on state and territory agencies or local government entities to be appointed as authorised officers unless and until there is a desire to enter into an arrangement and there is an agreement on the proposed arrangements and funding by the Commonwealth. The inclusion of relevant state and territory health officers, state and territory police officers and local government officers is to provide future flexibility and increased cooperation to respond to noncompliance with the act should it be needed and agreed. For example, relevant state or territory health officers may be able to be appointed, if agreed, to assist National Measurement Institute or departmental officers with inspections and enforcement activity as appropriate and to respond to localised areas of noncompliance. Accordingly, the proposed amendment provides a mechanism for greater collaboration and coordination on enforcement activities with the states, territories and local government bodies if needed and agreed in the future.

Who will the bill affect? As flagged earlier, one of the intentions of the bill is to ensure that NMI officers are still able to be appointed as authorised officers should the NMI undergo organisational changes. The bill, if passed, will allow the appointment of the following as an authorised officer under the act: a person appointed or engaged other than under the Public Service Act 1999 by the Commonwealth or a Commonwealth entity—within the meaning of the Public Governance, Performance and Accountability Act 2013; a person appointed or employed by a state or territory with responsibilities in relation to health matters or compliance and enforcement in tobacco control matters; state and territory police officers; and local government officials with responsibilities in relation to health matters or compliance and enforcement in tobacco control matters. State and territory police officers and local government officers will only be appointed with the agreement of the relevant state and territory.

I have already touched on the consultation undertaken in the preparation of this bill. Initial consultation was undertaken with jurisdictional representatives on the National Expert Reference Group on Tobacco. Follow-up consultation with each state and territory, health department, police force and local government representative body occurred from October 2017 to March 2018. In New South Wales comment was sought from the New South Wales Department of Premier and Cabinet as requested by New South Wales Health. The National Measurement Institute was, of course, also consulted. As mentioned, some agencies initially expressed concern in relation to the potential for their officers to be appointed as authorised officers, either because their view was it did not fall within their remit or due to resourcing concerns. After further discussion, these agencies were able to support the amendment on the basis that any appointment of authorised officers would be after a formal agreement had been made. The bill reflects an requirement for an agreement to be in place.

Finally, what are the financial impacts of the amendment? The amendment will not result in any further financial impact on the Commonwealth above the current costs associated with tobacco plain packaging compliance and enforcement activities undertaken by the Department of Health. As such, the measure is designed as one to better ensure that the law, if enacted, can be properly enforced. As discussed, despite the issues I see relating to the plain packaging legislation itself, this bill is a measure that is clearly one aimed at improving health outcomes for Australians and should be supported.