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Tobacco Plain Packaging Amendment Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

TOBACCO PLAIN PACKAGING AMENDMENT Bill 2018

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Rural Health and the Minister for Sport, Senator the Hon Bridget McKenzie)



 





TOBACCO PLAIN PACKAGING AMENDMENT Bill 2018

 

OUTLINE

 

The purpose of the Bill is to widen the scope of persons that can be appointed as authorised officers under subsection 81(1) of the Tobacco Plain Packaging Act 2011 (the Act).

 

Under subsection 81(1) of the Act, the Secretary of the Department of Health (Secretary) may appoint the following persons as authorised officers:

a.        a person who is appointed or engaged under the Public Service Act 1999 (PS Act);

b.       a member or special member of the Australian Federal Police.

 

Under subsection 81(2) of the Act, the Secretary may appoint these persons as authorised officers under subsection 81(1) of the Act only if the Secretary is satisfied that the person has suitable qualifications, training or experience.

 

The proposed Bill would enable other persons with suitable qualifications, training or experience in addition to those currently listed in subsection 81(1) of the Act, to be appointed as authorised officers by the Secretary if needed and agreed. This would extend the persons who the Secretary may appoint as authorised officers to:

a.        a person appointed or engaged other than under the PS Act, by the Commonwealth or a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013 );

b.       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;

c.        state and territory police officers; and

d.       local government officials with responsibilities in relation to health matters or compliance and enforcement in tobacco control matters.

 

This amendment is primarily to respond to potential organisational and administrative changes which may occur in the future, as well as providing more flexible arrangements to respond to potential non-compliance with the Act.

 

Currently, under the Act, the National Measurement Institute (NMI), a division of the Commonwealth Department of Industry, Innovation and Science undertakes compliance and enforcement activities on behalf of the Department of Health. Specifically, the minor amendment is to address the potential for the NMI to have a change in structure leading to officers being employed under alternative arrangements whereby they would no longer be engaged under the PS Act.

 

State and territory officers (including police officers) may only be appointed with agreement of the state and territory concerned. 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.

 

The Bill does not change any substantive elements of the Act including the tobacco plain packaging requirements. The Bill also does not change any other obligations under the Act or any offence provisions.

 

Tobacco use is a leading cause of preventable and premature death and disability in Australia, and contributes to and compounds existing health and social inequalities. In 2011, tobacco use killed almost 19,000 people in Australia and was responsible for 9.0% of the total burden of disease and injury, making it the most burdensome risk factor. The most recent available estimates show that the social and economic costs of smoking (including health costs) in Australia were $31.5 billion in 2004-05.

Although the number of daily smokers in Australia has fallen by more than half a million in the last decade, approximately three million Australians still smoke. The Government is committed to reducing the daily national smoking rate.

 

Plain packaging is a key part of the Government’s suite of tobacco control measures. The Act prevents tobacco advertising and promotion on tobacco products and tobacco product packaging in order to:

·          reduce the attractiveness and appeal of tobacco products to consumers, particularly young people;

·          increase the noticeability and effectiveness of mandated health warnings;

·          reduce the ability of the tobacco product and its packaging to mislead consumers about the harms of smoking; and

·          through the achievement of these aims in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates.

 

The Bill will allow increased flexibility on the authorised officer arrangements under the Act by providing a wider range of persons who can be appointed as authorised officers to undertake compliance and enforcement activities under the legislation.  

 

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.



Financial Impact Statement

 

It is not expected that the amendment will 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.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Tobacco Plain Packaging Amendment Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The purpose of the Bill is to widen the scope of persons that can be appointed as authorised officers under subsection 81(1) of the Tobacco Plain Packaging Act 2011 (the Act).

 

Under subsection 81(1) of the Act, the Secretary of the Department of Health (Secretary) may appoint the following persons as authorised officers:

  1. a person who is appointed or engaged under the Public Service Act 1999 (PS Act);
  2. a member or special member of the Australian Federal Police.

 

Under subsection 81(2) of the Act, the Secretary may appoint these persons as authorised officers under subsection 81(1) of the Act only if the Secretary is satisfied that the person has suitable qualifications, training or experience.

 

The Bill would enable other persons with suitable qualifications, training or experience in addition to those currently listed in subsection 81(1) of the Act, to be appointed as authorised officers by the Secretary. This would extend the kinds of persons who the Secretary may appoint as authorised officers to:

·          a person appointed or engaged other than under the PS Act, 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.

 

This amendment is proposed to respond to potential organisational and administrative changes which may occur in the future, as well as providing more flexible arrangements to respond to potential non-compliance with the Act.

 

For example, relevant state and/or territory health officers may be able to be appointed to respond to localised areas of non-compliance to assist with inspections and enforcement activity as appropriate.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

The purpose of the Bill is to expand the categories of persons who may be appointed as ‘authorised officers’ under the Act. This is an administrative amendment to ensure more flexibility in the appointment of authorised officers under the Act. The new categories of persons who may be appointed as ‘authorised officers’ are Commonwealth officers not appointed under the PS Act, state or territory government officers, state and territory police officers, or local government officials. It is still a requirement that any person appointed as an authorised officer has suitable qualifications, training or experience.

 

The Bill does not change any substantive elements of the Act including the tobacco plain packaging requirements. The Bill also does not change any offence provisions of the Act or other obligations which apply to individuals. It is intended that existing Commonwealth privacy requirements will apply regardless of the type of officer appointed as an authorised officer. The Bill therefore does not engage and cannot limit any of the applicable human rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

Senator the Hon Bridget McKenzie, Minister for Rural Health and the Minister for Sport

 



 

TOBACCO PLAIN PACKAGING AMENDMENT Bill 2018

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

This clause provides that the Bill, once enacted, may be cited as the Tobacco Plain Packaging Amendment Act 2018 .

 

Clause 2 - Commencement

This clause provides that the Bill will commence on the day after this Act receives the Royal Assent.

 

Clause 3 - Schedules

This clause provides that each Act that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms. 

 

Schedule 1 - Amendments

Item 1 After paragraph 81(1)(a)

Item 1 inserts a provision allowing a person appointed or engaged otherwise 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 ), to be appointed as an authorised officer.

 

This clause is primarily to respond to potential organisational and administrative changes which may occur in the future, by ensuring the current agency 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.

 

Item 2 At the end of subsection 81(1)

Item 2 inserts a provision allowing, a person appointed or employed by a state or territory or a person appointed or employed by a local governing body established by or under a law of a state or territory, with responsibilities for health matters or compliance and enforcement with tobacco control matters, to be appointed as an authorised officer. Item 2 also inserts a provision allowing a member of the police force or police service of a state or territory to be appointed as an authorised officer.

 

This clause will provide more flexible arrangements to respond to potential

non-compliance with the Act. 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 or in remote areas to assist with inspections and enforcement activity as appropriate.

 

This clause will expand the range of persons who can undertake compliance and enforcement activities under the Act (including potential exercise of coercive powers). Consistent with Chapter 7 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , to become authorised officers these persons must still be appointed individually by the Secretary, and the Secretary must be satisfied that any person appointed has suitable qualifications, training or experience. Although the range of the kinds of potential authorised officers will expand as a result of the Bill, the method of appointment provides a safeguard that any authorised officers appointed will meet certain requirements as to qualifications, training or experience as identified by the Secretary. Typically, the Secretary is satisfied that authorised officers either have formal qualifications relating to government compliance or investigation, or relevant experience in the field. All authorised officers receive tobacco plain packaging compliance training.

 

Item 3 After subsection 81(2)

Item 3 provides that a person of the kind listed in Item 2 may only be appointed as an authorised officer with the agreement of the state or territory concerned.

 

This provision ensures that the appointment of state, territory and local government officers and police officers will only be by agreement.