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TOBACCO (CONTROL OF TOBACCO EFFECTS ON MINORS) BILL
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11 June 2008
Statement of Compatibility
DRUM
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TOBACCO (CONTROL OF TOBACCO EFFECTS ON MINORS) BILL
Statement of compatibility
Mr DRUM (Northern Victoria) tabled following statement in accordance with
Charter of Human Rights and Responsibilities Act:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities (the charter), I make this statement of compatibility with
respect to the Tobacco (Control of Tobacco Effects on Minors) Bill 2007.
In my opinion the Tobacco (Control of Tobacco Effects on Minors) Bill 2007, as
introduced into the Legislative Council, is compatible with the human rights
protected by the charter. I base my opinion on the reasons outlined in this
statement.
Overview of bill
The purpose of the bill is to enhance the health of persons under the age of
18 years by:
prohibiting smoking in a vehicle while a person under the age of 18 years is
present
prohibiting the sale, purchase, possession and use of tobacco products by a
person under the age of 18
extending restrictions on tobacco controls at underage music and dance
events to persons under the age of 18 years
enabling the government to prohibit the sale of certain tobacco products
that have been flavoured or otherwise modified in a way that may encourage
young people to smoke.
Human rights issues
1. Human rights protected by the charter that are relevant to the bill
Structure of the Tobacco (Control of Tobacco Effects on Minors) Bill
The overall objective of the bill is consistent with section 17 of the charter
relevant to the protection of children. However, some clauses in the Tobacco
(Control of Tobacco Effects on Minors) Bill raise human rights concerns.
Clause 6 makes it an offence for a person under 18 to sell a tobacco product.
Persons working in a family-owned and operated business retailing or
wholesaling tobacco products which employs no more than five people are exempt
from this provision.
Clause 8 makes it an offence to smoke in a public place, purchase a tobacco
product, obtain tobacco product from a vending machine or possess tobacco in a
public place.
Clause 10 authorises an inspector to request a person to state his or her age
or date of birth.
Clause 11 specifies that an infringement notice served on a person under the
age of 18 may include additional steps required to expiate the offence.
Clause 12 specifies that the additional steps may include notification of the
person's parent or guardian.
Section 8 -- recognition and equality before the law
Section 8(3) of the charter provides that every person is equal before the law
and is entitled to equal protection of the law without discrimination.
Discrimination in relation to a person means discrimination within the meaning
of the Equal Opportunity Act 1995 on the basis of an attribute set out in
section 6 of that act.
Clauses 6 and 8 of the Tobacco (Control of Tobacco Effects on Minors) Bill
prima facie limit this right because they draw distinctions between people
based on age, which is an attribute in the Equal Opportunity Act 1995.
Section 13 -- privacy and reputation
Section 13 of the charter provides that a person has the right not to have his
or her privacy, family, home or correspondence unlawfully or arbitrarily
interfered with. Clause 10 authorising inspectors to request a person to state
his or her age or date of birth raises the right to privacy, as do clauses 11
and 12, which provide for notification of a parent or guardian where an
infringement notice has been served on a person under the age of 18.
An interference with privacy will not be unlawful provided it is permitted by
law, is certain and is appropriately circumscribed. Arbitrariness will not
arise provided that the restrictions on privacy are in accordance with the
objectives of the charter and are reasonable given the circumstances.
In clause 10 the circumstances where an inspector may request a person to
state his or her age are limited to circumstances when an inspector believes
on reasonable grounds that the person has committed or is about to commit an
offence against the bill.
The provisions in clauses 11 and 12 for notification of a parent or guardian
where an infringement notice has been served on a person under the age of 18
years are reasonable and are entirely consistent with section 17 of the
charter concerning the protection of families and children. Therefore in
neither case is the right to privacy unlawfully or arbitrarily interfered with
and there is no limitation of the right provided for in section 13 of the
charter.
Page 2176
2. Consideration of reasonable limitations -- section 7(2)
Section 8 of the charter -- recognition and equality before the law -- and
clauses 6 and 8 of the Tobacco (Control of Tobacco Effects on Minors) Bill
2007
(a) The nature of the right being limited
The prohibition of discrimination is one of the cornerstones of human rights
instruments and this is reflected in the preamble to the charter. However, the
right is not absolute and is subject to reasonable limitations pursuant to
section 7 of the charter.
(b) The importance of the proposed limitation
The purpose of the limitation is the protection of children consistent with
the rights of families and children specified in section 17 of the charter.
Children in vehicles where adults smoke are exposed to high levels of tobacco
smoke, higher than the levels normally experienced in homes or other enclosed
spaces. Research reported in the Medical Journal of Australia in 2007 shows
children exposed to second-hand tobacco smoke were almost twice as likely to
suffer from asthma. The federal Department of Health and Ageing has published
data linking passive smoking to a range of childhood illnesses including
bronchitis, pneumonia, middle-ear infections, obesity and sudden infant death
syndrome.
Smoking is a major public health issue for the community. Evidence suggests
that up to 90 per cent of smokers began smoking when they were teenagers.
The bill will operate, with other measures, to discourage smoking by persons
of less than 18 years.
(c) What is the nature and extent of the limitation?
The bill restricts persons under the age of 18 selling or purchasing a tobacco
product. It also restricts persons under the age of 18 from smoking or
possessing a tobacco product in a public place. The bill requires that persons
who carry on or manage a tobacco retailing business not permit persons under
the age of 18 to sell a tobacco product. This section will not apply to
tobacco retail and/or wholesale businesses which are family owned and operated
and which have no more than five employees. These restrictions will operate so
as to discriminate against persons on the ground of age.
(d) What is the relationship between the limitation and its purpose?
The discrimination is directly and rationally connected with the purpose of
the provisions which is to limit access and discourage persons under the age
of 18 from smoking. Similar legislation operates in some USA states and there
is evidence to suggest they are effective in supplementing education and
public awareness programs to reduce the incidence of under-age smoking.
(e) Are there any less restrictive means reasonably available to achieve the
purpose?
Any less restrictive means would not achieve the purposes of the provisions.
Current public education and awareness programs aimed at discouraging smoking
in the community have been generally effective, but despite these programs
youth smoking rates are not falling fast enough and further legislative
measures are therefore required.
(f) Are there any other relevant factors?
It should be noted that article 16 section 7 of the World Health
Organisation's Framework Convention on Tobacco Control obligates signatories
to the convention to 'prohibit the sales of tobacco products by persons under
the age set by domestic law, national law or eighteen'. Australia has ratified
this WHO convention. The bill gives effect to this obligation in Victoria.
(g) Conclusion
In conclusion the limitation is compatible with human rights because there is
a rational connection between the restriction and the purpose of reducing the
harmful effects of smoking on persons under the age of 18.
Conclusion
I consider that the bill is compatible with the Charter of Human Rights and
Responsibilities because to the extent that some provisions may limit human
rights those limitations are reasonable and demonstrably justified.
Damian Drum, MLC
Member, Northern Victoria Region
Second reading
Mr DRUM (Northern Victoria) -- I move:
That the bill be now read a second time.
It is an honour to introduce this bill into the house.
It is, I believe, one of the most important issues to be discussed in state
Parliament as it impacts upon the health and wellbeing of our children and their
capacity to lead full and productive lives.
The bill contains a range of important provisions, all of them intended to
protect children from the harmful effects of tobacco and to develop a more
consistent and sensible approach to tobacco and health in Victoria.
Firstly, it seeks to prohibit the potentially harmful practice of smoking in
vehicles while minors are present. This proposal has widespread support. It is
clear that a majority of Victorians are now aware of the links between exposing
children to passive smoking and ongoing health problems later in life, some of
which are life threatening.
The bill also seeks to strengthen our legislative framework on youth smoking and
health by making it unlawful for those under 18 years of age to purchase, use or
possess tobacco, making it even harder for young Victorians to make that fateful
decision to begin smoking.
Page 2177
It also includes provisions banning the sale in Victoria of certain flavoured
cigarettes which are being marketed particularly at young smokers. Some of the
cigarettes have flavours such as strawberry, chocolate, vanilla and liquorice
added to increase their appeal to young people. They are also packaged in
youth-orientated designs to lure the young and first-time smokers and are sold
under names such as DJ Mix, Black Devil and Pink Elephant.
The Australian adviser to the World Health Organisation, Nigel Gray, said this
youth-marketing exercise made cigarettes even more dangerous by adding chemicals
known to be linked to cancers.
Two state governments have already moved to ban smoking in cars carrying
children and other states are considering similar measures.
The evidence that smoking in cars is dangerous to children is well known and
beyond dispute. Research reported last year in the Medical Journal of Australia
showed children exposed to second-hand tobacco smoke were almost twice as likely
to suffer from asthma. The federal Department of Health and Ageing has published
data linking passive smoking to a range of childhood illnesses including
bronchitis, pneumonia, middle-ear infections, obesity and sudden infant death
syndrome.
The US Surgeon General has declared that there is no risk-free level of
second-hand smoke.
Children in vehicles have no choice when exposed to second-hand tobacco smoke.
Research has found that levels of tobacco smoke in cars can reach concentrations
much higher than levels possible in homes or other enclosed rooms.
Community support for an end to smoking in cars with children is very, very
strong. A 2004 independent survey of more than 1300 Australians in 800
households reported that 90 per cent of people wanted it stopped. Seventy-three
per cent of smokers wanted it stopped.
A beneficial side effect of a ban on smoking in cars while children are present
is that it will improve road safety. Monash University Accident Research Centre
found smoking drivers had an increased risk of being involved in a crash. One
study says smoking while driving could contribute to as many as 2000 crashes a
year in Australia.
I wish to now move to some broader matters on under-age smoking and what it
really means for our society.
There can be a lag of 30 or 40 years between the time when teenagers begin
smoking and when they become middle-aged victims of one of its many diseases.
The lag could be responsible for a lack of urgency legislators have shown about
this issue until now.
Tobacco is the leading cause of preventable death in Victoria. It kills almost
4000 Victorians a year, according to the Victorian Cancer Council, and costs the
state an estimated $5 billion to $6 billion in health care, lost productivity
and other costs.
Smoking claims more lives than all other causes of preventable premature death
put together. Each year 1.5 billion hospital bed days are taken up with patients
suffering from smoking-related diseases. The cost to the hospital system alone
is $700 million a year.
According to state government data, smoking is killing about 90 Victorians every
week, or about 13 per day, which is equal to 18 times the number dying of
illicit drugs, 11 times the number claimed each week in road trauma and 4 times
the number dying each week of alcohol-related causes.
Many health authorities consider these deaths and illnesses as a paediatric
issue. Up to 90 per cent of all smokers began smoking when they were teenagers.
Today there are an estimated 35 000 Victorian children who smoke regularly.
Parliamentarians are used to making decisions on matters of public health.
Some might argue that under-age smoking is a matter of health, not one of
justice and laws.
Yet we make laws regularly to help protect young Victorians from making unwise
or dangerous decisions such as chroming, petrol sniffing, alcohol consumption or
even driving a motor vehicle. The principle is well established.
Yet when it comes to tobacco, our messages are not so clear, even to us.
The Victorian government prohibits tobacco use, purchase or possession at
designated state-sponsored, youth events such as FReeZA concerts. The state
understands the use of a justice approach to a health issue when it comes to its
own events, but seemingly not in the broader community.
Most schools have developed and enforce anti-tobacco regimes inside the school
boundaries but cannot do anything when a teenager steps out onto the streets.
Page 2178
In some age groups, notably the older 16 and 17-year-olds, in recent years the
levels have been recorded at above 20 per cent, some around 25 per cent or one
in four.
The entire anti-tobacco community reports frustration and despair at the
obstinately high levels of older teenage smoking.
Every day in Victoria approximately 50 children start smoking. About half will
become committed smokers. This frightening situation is against a backdrop of
years of blunt messages, education, health programs, shocking TV ads, cigarette
pack warnings, reduced retail displays, high tobacco taxes and a storm of
information in the media.
Until now, Victoria's legislative direction in tackling under-age smoking has
been confined mainly to restricting retail sales of tobacco to minors.
But the evidence, confirmed in Quit's most recent surveys and in overseas work,
is that teenagers are still finding it fairly easy to obtain tobacco. In its
most recent survey Quit recorded that children as young as 12 can still obtain
tobacco.
In the USA similar retail sales controls are in all states but most US states
have adopted complementary laws on under-age possession, use and/or purchase of
tobacco. This bill has been drafted in the awareness of the success similar
measures have had in the US.
In consulting widely for this bill I have spoken to many hundreds of teenagers
from one end of the state to the other, and a common reaction from those most
likely to be affected by this proposed bill is amazement at the contradictions
now faced in Victoria.
When the US experience was explained to them, the great majority of the young
people I spoke to said they found common sense and consistency in the approach.
This package of reforms includes a prohibition on people under 18 from selling
cigarettes. We have a responsibility to meet article 16, section 7, of the World
Health Organisation's Framework Convention on Tobacco Control.
The convention was ratified by Australia on 27 October 2004 and was deemed to be
in force in Australia from 27 February 2005.
It states that all parties to the convention shall adopt whatever measures
possible to prohibit the sales of tobacco products by persons under the age set
by domestic law or national law or 18.
We have consulted with tobacco retail outlets, including the peak body
representing convenience stores and service stations. And we therefore introduce
this legislation with the knowledge that most retailers currently do not allow
children under 18 to sell tobacco.
While noting that the vast majority of those retailing tobacco already have in
place codes of conduct against children selling tobacco, we acknowledge the
needs of those operating small, family-owned and operated businesses. We have
exempted those from this provision.
PUP laws, as they are known, are common in the United States where they
supplement existing education and public awareness programs. The success of
these measures has been documented after a seven-year study by a research team
made up of staff from DePaul University, the University of Chicago, Loyola
University, the University of Illinois and the University of Florida.
We have spent several months consulting across Victoria on these proposed
reforms, including an extensive tour of Victorian secondary colleges.
A great majority of those we spoke with supported the use of potential fines as
a deterrent, arguing that a law without penalties would not be seriously
regarded.
Students were clear in their opinion as to what would impact future smoking
rates and what would not. The message we were left with was that children start
smoking younger than we think and that parental involvement and awareness would
be a significant deterrent. Young people support reforms involving a range of
strategies including intervention programs and financial penalties.
Youth smoking rates are not dropping fast enough.
The smoking rates reported in my latest consultations with teenagers confirm the
results of a survey I did four years earlier.
In 2004 my office did a survey of 4233 secondary school students in Bendigo, and
it showed those same smoking rates of around one in five. Older students
reported a rate of just over one in four.
This bill will help protect our children from the harmful effects of tobacco. It
will help them be exposed to less second-hand tobacco inhalation and it will
encourage them to make wiser, safer choices.
Page 2179
But the chief impact will be to send a stronger, more consistent message that
tobacco will harm them and could kill them and that it has no known benefits.
Ultimately, the intent of this bill is to try to improve the lives of future
generations, to help them achieve longer, healthier, happier lives.
I end my remarks today with another interesting piece of research: 90 per cent
of all smokers regret the decision they made as teenagers. We cannot help them,
but we can help future generations.
Debate adjourned on motion of Ms DARVENIZA (Northern Victoria).
Debate adjourned until Wednesday, 18 June.