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12 March 1991 - Current

Page 2175
11 June 2008
COUNCIL Statement of Compatibility DRUM
                           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

  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
    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

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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.