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House: Legislative Assembly- Introduction and First Reading
Date: Wednesday, 29 June 2005
Member: MCGINTY
Subject: TOBACCO PRODUCTS CONTROL BILL 2005
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TOBACCO PRODUCTS CONTROL BILL 2005
Introduction and First Reading


Bill introduced, on motion by Mr J.A. McGinty (Minister for Health), and read a first time.
Explanatory memorandum presented by the minister.


Second Reading

MR J.A. McGINTY (Fremantle - Minister for Health) [12.38 pm]: I move -

That the bill be now read a second time.

This bill is a fundamental step forward in tobacco reform, demonstrating the government’s ongoing commitment to reducing the health hazards posed by smoking. The bill is aimed at reducing the availability of tobacco products to minors and reducing the influences of tobacco promotion generally, thereby enhancing health protection for our children and the general community.
Smoking is the largest single preventable cause of death and disease in Australia, accounting for over 19 000 deaths annually. In Western Australia, smoking is responsible for 1 500 deaths a year and is a major risk factor for a range of disabling and fatal conditions, including cardiovascular and lung diseases and a number of cancers. Smoking places a substantial financial burden on the community. Health economists estimated that in 1998-99 the tangible and intangible costs of smoking to Australia were $21.1 billion. In 2001, smoking-related hospitalisations cost the Western Australian health system over $60 million. The 2004 national drug strategy household survey released earlier this month found that, although Western Australia now has the lowest smoking rate in the nation, 15.5 per cent of people aged 14 and over still smoke daily. This is too high. Research indicates that initiation into smoking behaviour is well established before the end of teenage years, with approximately 80 per cent of smokers reporting initiation of tobacco use by the age of 18. This illustrates the need to discourage children from smoking if the prevalence of smoking is to be reduced, and this bill is focused on this need. A national report found that in 2002, more than 15 400 Western Australian children aged between 12 and 17 were smoking on a weekly basis. In 2004, a Department of Health compliance survey of 488 retail outlets in the metropolitan area found that more than half - in reality 53 per cent - sold cigarettes to children. In country regions, on average 60 per cent of retail outlets surveyed were willing to sell cigarettes to children. The results of these surveys are alarming and indicate to the government that current tobacco control laws are not sufficient to stop the sale of tobacco products to our children.

The 2004 National Drug Strategy Household Survey also found that Western Australians overwhelmingly support stronger tobacco control laws, particularly for preventing the sale of cigarettes to children. The survey found that 90 per cent of people support stricter enforcement of the law against supplying tobacco products to minors; 87 per cent want tougher penalties for the sale or supply of tobacco products to children; and 72 per cent support bans on point of sale advertising and display of tobacco products.

This bill will introduce a new act that will replace the Tobacco Control Act 1990 and part IXB of the Health Act 1911, based on best practice in other states and in other countries, and incorporate new provisions relating to indirect sales of tobacco products. This will control a currently unregulated market readily accessed by minors, such as Internet, mail order and phone order sales of tobacco products. The bill is substantially different from the Tobacco Control Act, with amendments relating to advertising, sponsorships, packaging and labelling, exemptions, sales to minors, licensing, enforcement, administration, interpretations, judicial processes, extending coverage to non-tobacco products, such as herbal cigarettes and confectionary and toys that resemble tobacco products, and updating the purposes.

Sale and supply: The bill introduces more effective controls on the illegal sale and supply of tobacco products to anyone under 18 years of age. In part, the intent of the bill is to provide a clear message to retailers that if they sell tobacco products to children they will be caught, with appropriate penalties available to reflect the seriousness of the offence. One of the key purposes of the bill is -


to reduce the incidence of illness and death related to the use of tobacco products -
(i) by prohibiting the supply of tobacco products . . . to young persons;

(ii) by discouraging the use of tobacco products;


This will be achieved by provisions that -

require proof of age to be produced on request at the point-of-sale or the point of delivery for indirect sales;
require anyone who sells tobacco products to be licensed;

restrict the sale of cigarette papers, pipes and other smoking implements to persons over 18;

require strict supervision of vending machines in licensed premises or in a mines amenity area;

control the sale and promotion of herbal cigarettes similar to tobacco products because credible scientific evidence clearly shows that these products pose similar major health risks to tobacco;

prohibit the sale of confectionery, toys and other products that are designed to resemble tobacco products;

apply controls to Internet sales and other forms of indirect sales of tobacco products;

limit sales to one point-of-sale only in any retail premises;

restrict tobacco product displays to one square metre but provide conditional exemptions for some specialist retailers if they are carrying on a business that will meet certain requirements;

control information signs about the availability and price of tobacco products;

require health warnings and warning signs about offences for selling to minors at point-of-sale;

prohibit hawkers of tobacco products;

ban the advertising of price discounting;

require distribution of approved guides at retail outlets about the health effects of smoking and how to quit;

harmonise labelling requirements for tobacco products with commonwealth legislation; and

provide comprehensive powers of enforcement and investigation consistent with the Health Act 1911 and tobacco control legislation of other major states.


Advertising and promotion: Complementing the sale and supply provisions are provisions that will restrict the promotion of tobacco products. These provisions will minimise the exposure of young people to tobacco marketing and promotions, which research has shown significantly increase the likelihood of adolescents experimenting with tobacco products. Research has also shown that the brands most commonly smoked by youth are those most heavily advertised at the point of sale. Partial bans have been found to be ineffective due to the tobacco industry adopting alternative forms of advertising, subsequently reducing the effect of the bans. Studies have found that comprehensive advertising and promotion bans that cover all media and tobacco company brand names, logos and designs can reduce smoking rates by between six and nine per cent. Therefore, the bill bans tobacco advertisements at point of sale. It also bans suggestive forms of advertising, such as brand stretching, which includes back-lit posters directly above cigarette displays depicting images of smoking paraphernalia, and buzz marketing where colours, images and props are used to create an environment consistent with a brand’s identity, which is generally undertaken in nightclubs, dance events, fashion events or other similar events. The tobacco industry uses these methods to circumvent the current advertising bans.
The bill phases out existing tobacco sponsorship exemptions consistent with commonwealth legislation that currently may permit advertising connected with events of international significance by 1 October 2006.

Monitoring and enforcement: The current act does not contain any provisions relating to powers of investigation or legal process. Effective and appropriate enforcement provisions relating to powers of investigation and legal process are provided in the bill, including the appointment of investigators; powers of investigators including right of entry, warrants and inspection of documents and goods; evidentiary matters and due processes for investigation; and increased penalties for offences. The powers are consistent with those contained in the Health Act 1911 and tobacco control legislation of other states.

Police will also be able to perform the functions of an investigator. This is not a new initiative but it will provide police with appropriate powers to deal with tobacco control matters. Environmental health officers will continue to monitor provisions relating to smoking in enclosed public places and may be called upon to perform some functions of investigators, if required.

A new initiative to be implemented to combat illegal sales of tobacco products to minors is the inclusion of provisions allowing for controlled purchase operations. These are essentially undercover operations in which minors may purchase or attempt to purchase tobacco products with a view to gaining evidence for prosecution. There are controls on the use of these operations. There must be grounds to suspect that a person has committed an offence. A cause for suspicion may be a complaint by a parent of a minor who purchased cigarettes at a particular shop, or a retailer who may have been identified in a compliance survey.

A tobacco company that provides false or misleading information about the health effects or legislation concerning tobacco products will be subject to a penalty of $50 000, or $250 000 if a body corporate.

Smoking in public places: Current legislation regulating tobacco products and smoking in public places is fragmented. Tobacco products are controlled by the Tobacco Control Act 1990 while part IXB of the Health Act 1911 controls smoking in public places. The bill amalgamates these two areas of tobacco control, applying consistent definitions, purposes and powers of investigation, and legislatively links each aspect to the other in a single act.

Licensing: The bill introduces a minimalist licensing scheme that will require retailers and wholesalers of tobacco products to be licensed, for which a fee will be payable. To ensure all retailers are licensed, responsibility is to be placed on wholesalers of tobacco products to provide the chief executive officer of the Department of Health with the names and addresses of all persons to whom they supply tobacco products. There are qualification provisions that the CEO of the Department of Health may consider in the application and renewal processes to determine whether a person is fit and proper to hold a licence. A person will not be able to obtain a licence to set up temporary premises to sell tobacco products at events targeted at youth audiences, such as the Big Day Out.

Provisions in the bill will empower a court or the State Administrative Tribunal to take away a person’s licence if he breaches a condition of a licence or commits offences under the new act. The State Administrative Tribunal will deal with disciplinary matters and appeals against decisions of the licensing authority in relation to licences.

The bill provides a two-tiered licensing fee. There will be an initial one-off application fee and a fee for the issue and renewal of a licence. Licence fees will be net appropriated to fund administration and associated activities of the scheme, which will be administered by the Department of Health.

Healthway: The bill supports the good work of the Western Australian Health Promotion Foundation or Healthway, as it is commonly known. Provisions contained in the Tobacco Control Act 1990 have been substantially adopted but amended to reflect recommendations of the 1995 review of Healthway and a subsequent report following public comment on the recommendations. These provisions include tidying up minor administrative anomalies, such as staffing issues and management titles to reflect current arrangements, and amending governance provisions to reflect current government policy and modern requirements.

A review of the bill, once enacted, is to be carried out as soon as is practicable after four years have elapsed since part 5 comes into operation and on every fourth anniversary of that date. The minister is to table in the Parliament a report on the review within 12 months of the date that the review was due to commence. This is a significant piece of legislation dealing with an important public health issue and I commend this bill to the house.

Debate adjourned, on motion by Dr S.C. Thomas.