Hansard debates

Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:16): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

This Bill:

• amends the Tobacco Act 1987 (the Act):

• to establish a licensing scheme for tobacco retailers and wholesalers;

• to repeal provisions relating to e-cigarettes and specialist tobacconists; and

• to provide for forfeiture of prohibited products; and

• makes consequential amendments to the Confiscation Act 1997 (Confiscation Act), the Drugs, Poisons and Controlled Substances Act 1987 and the Spent Convictions Act 2021 (Spent Convictions Act).

The purposes of this Bill are to:

• safeguard the suitability of licensed retailers and wholesalers of tobacco products;

• promote and enforce retailer and wholesaler compliance with controls on the lawful sale and promotion of tobacco products under the Act; and

• uphold the integrity of the tobacco retailer and wholesaler licensing scheme by deterring unlawful conduct.

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are:

• The right to privacy and reputation (section 13);

• The right to freedom of expression (section 15);

• The right to property (section 20);

• The right to a fair hearing (section 24);

• The right to the presumption of innocence (section 25(1)); and

• The right not to be tried or punished more than once (section 26).

Licence application processes

The Bill establishes a tobacco business licensing scheme to regulate the lawful supply of tobacco products. Accordingly, new Part 3AA of the Act, inserted by clause 8 of the Bill, sets out the application processes for obtaining, renewing, varying, relocating, and transferring a licence. Licence applications must contain prescribed particulars, such as specified details of the applicant’s associates, which includes prescribed relatives. The Regulator may additionally request that the applicant provide a criminal history check and any other documents or information relevant to assessing the suitability of the applicant to obtain, relocate, transfer and renew a licence (new sections 34A(1)–(3)), 34H(2)–(4), 34I(2)–(4) and 34ZS(2)–(4)).

Division 6 of Part 3AA sets out the process by which the Regulator must determine licence applications. Before granting or refusing a licence, relocation, transfer, variation or renewal application, the Regulator may conduct inquiries with government agencies in Victoria or in other Australian jurisdictions in relation to the criminal history of the applicant or any of their associates and must consider any objections or representations made by the Chief Commissioner of Police (new section 34W(3)(a), (c) and (6)). Under new section 34X, the Regulator may refuse to grant a licence or transfer application if they consider the applicant or an associate of theirs not to be a suitable person to carry on or be associated with a tobacco supply business.

Section 34Z deals with suitability matters and provides that a person found guilty – within the preceding 5 ‍years – of a suitability offence (as defined in amended section 3) or an indictable offence (other than an indictable offence that is a suitability offence) or who is, in the Regulator’s opinion, linked to or tends to be linked to, unlawful tobacco activity or organised crime activity, are not a suitable person to carry on or be associated with a tobacco supply business under the licence. Section 34Z(2) provides that the Regulator may take into account any spent conviction in relation to an offence specified in section 34(1) disclosed to the Regulator under the Spent Convictions Act that is recorded not more than 5 years before the date that the Regulator requested the information from the relevant law enforcement agency.

Right to equality and right to freedom of association

Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in section 6 of that Act. Relevantly, ‘spent convictions’ and ‘personal associations’ with a person who is identified by reference to a spent conviction, are attributes protected under sections 6(pb) and 6(q) of the EO Act. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

Accordingly, the power to refuse to grant a licence to an applicant on the basis that the applicant, or their associate, has a spent conviction may constitute direct discrimination against a person with a protected attribute and therefore engage the right to equality under s 8(3) of the Charter.

Section 16(2) of the Charter provides that every person has the right to freedom of association with others. This right has been broadly construed to include private associations and is not confined to participation in formal groups. Therefore, this Bill may engage this right by denying a person a licence on the basis of their personal or business associations.

Consequently, it is necessary to consider the proportionality or justification of the limitation on this right, by reference to its purpose. In order to justify limiting a Charter right, the purpose of the limitation must relate to ‘pressing and substantial’ social concerns, and be aimed at achieving legitimate values and interests. The more pressing and substantial the purpose, the greater the limitation it will justify.

The Bill seeks to address the pressing and substantial social concern of infiltration of the tobacco industry by serious and organised crime, and the practice of placing business assets in the names of family members. This practice has also been linked with financial abuse of domestic partners where criminal activity takes place within businesses under the names of domestic partners. These amendments are thus aimed at achieving the legitimate purpose of safeguarding the suitability of licensed retailers and wholesalers of tobacco products. Given the immediate and escalating risks in the tobacco industry, there is a strong public interest in this purpose. Accordingly, any limitations on the rights to equality and free association occasioned by the licencing scheme established in the Bill are necessary to fulfil a legitimate and pressing purpose that cannot be achieved by less rights-limiting means. I therefore consider that the Bill is compatible with the right to equality in section 8 of the Charter.

Right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. An interference with the right to privacy and reputation will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

New Part 3AA of the Bill requires the provision of prescribed information, including an applicant or associate’s criminal history, to the Regulator in support of a licence application (new sections 34A(1)–(3)), 34H(2)–(4), 34I(2)–(4) and 34ZS(2)–(4)). To the extent that the prescribed information includes personal information, these provisions may interfere with a person’s right to privacy under section 13(a) of the Charter.

This being so, any impacts on the right to privacy are not unlawful or arbitrary. This is because the interference with privacy is authorised under legislation and is for the purpose of enabling the Regulator to make informed decisions about the appropriateness of a person to carry on a tobacco supply business. New sections 34A, 34H, 34I and 34ZS are clear and accessible and reasonably necessary to facilitate the Regulator’s regulatory functions. Further, the information required by the Regulator is limited to information necessary for, or relevant to, the an assessment of whether a licence applicant is a suitable person to carry on a tobacco supply business, and serves the important purpose of enhancing the fitness and propriety of persons participating in the tobacco industry and addressing unlawful activity.

Further, as there is a diminished expectation of privacy by persons seeking to participate in a regulated industry and that applicants will have given their consent for their information to be verified and shared within the confines of the relevant provisions, any interference with the privacy interests of applicants is limited. I therefore consider that the Bill is compatible with the right to equality in section 13 of the Charter.

Criminal history

As noted above, various applications under the Act require the applicant to provide criminal history checks to the Regulator (new sections 34A(1)–(3)), 34H(2)–(4), 34I(2)–(4) and 34ZS(2)–(4)). Further, before granting or refusing a licence, relocation, transfer, variation or renewal application, the Regulator may conduct inquiries with government agencies in relation to the criminal history of the applicant or any associates of the applicant (section 34W(3)(a) and (6)). Criminal history checks may disclose pending criminal investigations, current unproven criminal charges, convictions and findings of guilt as well as charges that have been struck out, withdrawn, set aside or where the person has been found not guilty.

New section 34ZZ further set outs the process by which the Regulator may, on their own motion, review licences. In so doing, the Regulator is empowered to conduct any inquiries they think fit, including from the licensee or their associate, the Chief Commissioner of Police or other government agencies in relation to the criminal history of the applicant or their associates (section 34ZZ(3)–(4)). The Regulator may further request any documents or information that they consider appropriate, including a criminal history check of the licensee; and any of their associates.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. This right is one of the most fundamental rights in the Charter, and accordingly, will require a sufficiently important objective to justify being limited.

While the right has been found to only apply to criminal proceedings (and not, by contrast, to other proceedings such as regulatory decisions), it does afford an accused a right to have the benefit of the doubt, and to be treated in accordance with this principle. It is suggested that the right incorporates duties on others to refrain from prejudging the outcome of a trial – including to abstain from actions that affirm the guilt of an accused.

While Victorian case law has yet to consider in more detail the broader application of this right beyond criminal proceedings, there is a reasonable argument that the above mentioned provisions that allow the Regulator access to a person’s criminal history which may disclose pending criminal investigations or current unproven criminal charges may constitute a limit on the presumption of innocence if this information forms the basis of a decision to deny an application. As such, these provisions could be characterised as effecting an act of pre-judgment of an accused, or at least depriving them of their right to the benefit of the doubt.

However, I consider that the licencing decisions by reference to potential involvement in criminal conduct is justified because the effective operation of the licensing scheme is necessary to protect the integrity of the industry and combat illegal tobacco activity. I therefore consider that the Bill is compatible with the right to be presumed innocent in section 25(1) of the Charter.

Right not to be tried or punished more than once

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However the principle only applies in respect of criminal offences – it will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa.

It might be argued that new section 34X(1)(a) of the Act, which provides for the refusal of a licence application on the basis of past convictions including spent convictions, constitute a limit on this right. This is because the provision could be characterised as effecting a form of ‘punishment’. Similarly, the suspension and cancellation of a licence where the licensee or associate is found not to be a suitable person may be considered to be a double punishment if the finding is based on, or informed by, past charges or convictions.

However, in my view, these new sections do not engage this right as the making of licencing decisions by reference to past involvement in criminal conduct is not to be characterised as imposing a form of punishment, for the following reasons.

• The mere fact that a law operates to directly impose a detriment on a particular person does not make it punitive. Rather, the authorities show that the criteria by reference to which the detriment is imposed, and also the purpose for which it is imposed, are central to determining whether the imposition of a particular detriment is properly characterised as punitive.

• The purpose of the provisions is not punitive but protective, aimed at safeguarding the suitability of licensees, and the integrity of the licence scheme and tobacco supply industry. As the tobacco industry has been widely infiltrated by criminal organisations, it is important to ensure that the supply of tobacco products is subject to strict regulatory oversight.

Therefore, regulatory decisions on the basis of an applicant’s criminal history are not punitive in their purpose but protective in nature. Therefore, in my view, they do not amount to double punishment for the purpose of section 26, and this right is therefore not limited.

Powers to suspend and cancel licences and disqualify persons

Division 4 of new Part 3AA, inserted by clause 8, regulates the suspension and cancellation of licences. New section 34Q, inserted by clause 22 of the Bill, authorises the Regulator to suspend or cancel a licence on various grounds set out in section 34P(1), including where the licensee, or an associate, are found to no longer be a suitable person to carry on or be associated with a tobacco supply business under the licence for reasons that may include being found guilty of a suitability offence or an indictable offence that in the Regulator’s opinion is linked to or tends to be linked to unlawful tobacco activity or organised crime activity (section ‍34Z). If the Regulator has cancelled a licence under new section 34Q, the Regulator may also disqualify that person from holding a licence for up to five years (new section 34ZU). New section 34W further authorises the Regulator to refuse a licence renewal application.

Right to privacy

Although the Charter does not include an express ‘right to work’, there is case law which suggests that the right to privacy may include ‘a right to work of some kind’ where there is a sufficient impact upon the personal relationships of an individual or on their capacity to experience a private life, for example by curtailing their ability to earn a living and maintain their identity through employment.

It is possible that for a person who operates a tobacco supply business, the suspension, cancellation or refusal to grant renewal of their licence, or their disqualification from holding a licence, may significantly curtail their ability to earn a living and maintain their identity through employment. Accordingly, on a broad reading, the right to privacy may be engaged by a decision to suspend, cancel or disqualify a person, or a decision not to renew a licence. However, for the right to be limited, any interference must be unlawful and arbitrary. The question of arbitrariness depends upon the proportionality of any interference with privacy.

In my view, any impacts on the right to privacy are not unlawful or arbitrary. This is so because the provisions granting the power to suspend or cancel a licence are subject to a range of safeguards, such that any limits on rights are precise and carefully circumscribed. Division 4 sets out a detailed procedure for the determination of suspension and cancellation applications. For example, where an application is made by the Chief Commissioner of Police or a mortgagee of a licenced tobacco premises, the licensee must be provided with a copy of the application and where relevant, a ‘show cause’ notice (sections 34N, 34O and 34P). Further, a decision to suspend or cancel a licence must only be made in accordance with the criteria set out in section ‍34P(1), which includes a finding of such matters as the licensee or their associate is no longer a suitable person to carry on or be associated with a tobacco supply business under the licence, or the breach of a licence condition by the licensee. Similar safeguards apply to disqualification decisions (section 34ZT). Therefore, these provisions are aimed at ensuring that only suitable people are permitted to operate tobacco supply businesses, which serves a legitimate and important purpose, particularly given the incidence of unlawful and organised crime activity in the supply of tobacco products and the central role of licensees to supply of these products. Finally, suspension, cancellation and disqualification decisions are all subject to internal review (clause 5, subsection 3(e) and (g)) and VCAT appeal processes (new section 34ZL).

Finally, a tobacco supply licence is a privilege that attracts special responsibilities and duties. The power to suspend or cancel a licence due to a licensee’s failure to comply with its requirements and conditions is an important regulatory function that protects the integrity and safety of the industry.

Accordingly, I consider that any interference arising from the Regulator’s powers to suspend or cancel licences or disqualify persons from holding licences would not be arbitrary.

Right to fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of administrative decision-makers with the power to determine private rights and interests in the broad sense. As administrative decisions that affect existing rights attract the application of the right to a fair hearing, powers to cancel or suspend an existing licence are likely to engage this right.

The fair hearing right is principally concerned with the procedural fairness of a decision, which in the context of these types of administrative decisions, generally requires prior notice of a decision, informing interested parties of the matters that may be relevant to a decision, and giving them a ‘reasonable opportunity’ to present their case and respond to adverse information.

I am satisfied that the fair hearing right is not limited, because section 34P provides for show cause notice requirements, which must include the ground(s) for the decision and an outline of the facts and circumstances forming the basis of the Regulator’s belief that the ground(s) exist (subsections (2)(b) and (c)). Additionally, the Bill affords licensees a reasonable opportunity to respond (subsections 34P(2)(e) and (3)) and with a right of internal and VCAT review of the decision (sections 34ZJ and 34ZL).

Right not to be tried or punished more than once

It might be argued that new section 34Q of the Act, which provides for the suspension or cancellation of a licence where the licensee or associate is found not to be a suitable person, constitutes a limit on this right if the finding is based on, or informed by, past convictions including spent convictions. The argument might be put on the basis that the provision could be characterised as effecting a form of ‘punishment’.

However, in my view, this new section does not engage this right as the making of licencing decisions by reference to past involvement in criminal conduct is not to be characterised as imposing a form of punishment, for the same reasons as outlined above.

Further, the nature of the detriments being imposed (eg, licence suspension or cancellation) is not of a nature traditionally associated with a criminal sanction. Penalties and sanctions imposed by a regulator do not usually constitute a form of ‘punishment’ for the purposes of this right. Further, no conviction flows from these outcomes nor is a person liable for subsequent sanctions of a criminal nature, such as a fine or imprisonment. The detriment does not interfere with a person’s liberty or bodily integrity (or even pre-existing property rights), it is just directed to whether an applicant will continue to enjoy a privilege (ie, a licence).

Finally, licence suspension and cancellation on the basis of criminal history are limited to serious offences, such as indictable offences that in the Regulator’s opinion may be linked to unlawful tobacco activity or organised crime activity (new section 34Z(1)(b)), and other specified offences that reasonably put into question a person’s suitability to carry on a tobacco supply business (eg, indictable offences relating to fraud or dishonesty: subsections 3(c) and 34Z(1)(a)) (see ‘suitability matters’ as defined in new section 34Z).

Immediate suspension in relation to suspected illicit tobacco offences

Pursuant to recommendations arising from the PAEC inquiry into Vaping and Tobacco Controls, the Bill introduces a new process providing for the immediate suspension of a licence (for up to 90 days) if the Regulator forms a reasonable belief that a licensee has committed an offence relating to the possession or supply of a commercial quantity of illicit tobacco, and may continue to possess or supply illicit tobacco in or from the licensed premises (clause 8, new section 34R).

Right to a fair hearing

As new section 34R allows a person’s licence to be immediately suspended without a show cause process, this amendment may further engage the right to a fair hearing.

However, as outlined above, the fair hearing right is principally concerned with the procedural fairness of a decision, such that the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited. The Bill affords licensees a right of internal and VCAT review of a decision to immediately suspend a licence (sections 34ZJ and 34ZL).

Further, immediate suspension serves an important purpose of providing a timely mechanism for preventing further criminal activity in circumstances where the Regulator reasonably believes that a licensee has committed an offence and may continue to do so. It is an important mechanism for realising the Bill’s purpose of ensuring retailer and wholesaler compliance with the lawful sale of tobacco products.

I further consider section 34R to be a proportionate response as immediate suspension is confined to preventing activities reasonably considered to be an offence in circumstances where delayed regulatory action would not have the immediate protective effect of preventing an imminent risk of continued offending.

Therefore, to the extent that this provision limits the fair hearing right, it serves a legitimate objective and is thus reasonably justified. Accordingly, I am satisfied this provision is compatible with the Charter.

The right to be presumed innocent

Section 34R(2) authorises the Regulator to immediately suspend a licence under section 34R regardless of whether the licensee has been charged with an illicit tobacco offence, proceedings have been initiated against the licensee in respect of such offence, or the licensee having been convicted of such offence. As the provision allows for a regulatory action on the basis of an unproven offence and therefore can be characterised as effecting an act of pre-judgment of an accused, or at least depriving them of their right to the benefit of the doubt, the provision engages and may limit the right to the presumption of innocence in section 25(1) of the Charter.

However, there is a clear and direct relationship between the limitation and stated purpose – the immediate suspension of a licence directly correlates to the stated purpose of safeguarding the suitability of licensed tobacco retailers and wholesalers and the integrity of the tobacco retailer and wholesaler licensing scheme. Given the immediate and escalating risks in the tobacco industry, there is a strong public interest in this purpose.

Moreover, immediate suspension is limited to serious offences related to the possession or supply of a commercial quantity of illegal tobacco, where the Regulator reasonably believes the licensee may continue to offend.

It is my view that if the immediate suspension of a licence under new section 34R of the Act limits the right to be presumed innocent under section 25(1) of the Charter, such limits are justifiable.

Search and seizure powers

Division 3 of new Part 3AAB of the Act introduces a suite of powers that enable licensing inspectors to enter, inspect and search licensed tobacco premises, any vehicle used in connection with these premises, or other premises, and to seize any document or thing after entry. These powers provide a hierarchy of options that scale in the extent of their interference with rights:

• at the lower end of the scale are powers to enter a licensed tobacco premises open to the public, or to enter with consent (sections 35I and 35J);

• at the higher end are those powers that can only be exercised pursuant to a search warrant (section ‍35L).

Where a licensing inspector enters a premises or vehicle, they may exercise the powers specified in new sections 34K. These powers differ, depending on the basis on which a person’s entry is authorised, but broadly include powers to search the premises; inspect or require the production of any document, equipment, product, goods or other thing for the purpose of inspection; copy or take an extract from documents; request information from persons at the premises, and seize any document, equipment, tobacco product, vaping goods or other thing in certain circumstances.

Warrants can be issued by a Magistrate where there are reasonable grounds to believe that there is likely to be on the premises any document, equipment, tobacco product, vaping goods or other thing that may be evidence of a licensing offence (section 35L). Where entry is authorised by warrant, a licensing inspector or police officer may also seize things not mentioned in the warrant if they reasonably believe certain matters exist (section 35O). They may also use or seize electronic equipment at the premises in certain circumstances (section 35P).

Right to privacy

These powers engage the right to privacy in section 13 of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy or correspondence. However, a number of safeguards apply to the exercise of such powers to ensure they are not exercised arbitrarily or unlawfully. In particular:

• licensing inspectors must only exercise powers of entry during normal business hours or any other time the premises are open to the public (unless the licensing inspector reasonably suspects that a licensing offence is being or has been committed, or otherwise provided for under a warrant, or by consent) (section 35I);

• licensing inspectors may only exercise powers (other than under a warrant) for the purpose of monitoring compliance with a relevant provision or if the inspector reasonably believes that a licensing offence is being or has been committed (section 35K(1));

• when consent is required to exercise a power, licensing inspectors must explain certain matters including the person’s right to refuse to consent, and seek a signed acknowledgment of consent (section 35J);

• licensing inspectors and police officers must comply with retention and return limits in accordance with section 35Q for anything seized under section 35K or under a licensing search warrant; and

• when exercising powers of entry under a warrant, licensing inspectors or police officers must generally announce that they are authorised by warrant, give a person at the premises the opportunity to allow entry, and provide a copy of the warrant to the occupier (if present) (sections 35M and 35N).

As such, a broad range of safeguards apply to ensure the powers may only be exercised in a reasonable and proportionate way that protects the privacy of individuals as much as possible. The powers serve the important purpose of enabling licensing inspectors to effectively monitor and enforce compliance with the Act. The powers are appropriately tailored to reflect the source of the authority to enter premises and exercise associated powers, with the most significant powers being reserved to circumstances where a Magistrate has granted a warrant. Further the powers will primarily be restricted to entry onto commercial premises, at which there is generally a lesser expectation of privacy.

Although the powers involve some interference with the privacy of the licensees, I consider that the interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in section ‍13 of the Charter.

Right to property

While property is not defined under the Charter, it is likely to include personal property interests recognised under general law. As the new seizure powers authorise the removal of anything found on the premises, these powers may engage property rights under section 20 of the Charter.

However, the provisions empowering the seizure of any document, equipment, tobacco product, vaping goods or other thing do not limit property rights, as any interference with property occasioned by these provisions would be undertaken in accordance with the provisions of the Bill, which are accessible, clear and sufficiently precise. For example, a licensing inspector may only seize anything on the premises if they consider it necessary for the purpose of obtaining evidence of the commission of a licensing offence (subsection ‍35K(2)(d)) and must provide a receipt for the thing seized as soon as practicable (subsection ‍35K(4)). Under a licensing search warrant, the power to seize anything not named in the warrant is subject to various conditions: specifically, a licensing inspector or police officer must believe on reasonable grounds that the seized thing is of a kind which could have been included in a warrant, will afford evidence of a licensing offence and is necessary to seize to prevent its concealment, loss or destruction or its use in the commission of that offence (new section 35O). Further, any deprivation of property is reasonably necessary to achieve the important objective of obtaining evidence of the commission of a licensing offence.

Therefore, any deprivation of property will be ‘in accordance with law’ and will therefore not limit the Charter right to property.

Information use and sharing provisions

New section 35C, inserted by clause 12, authorises the Regulator or a licensing inspector to collect, use and disclose information about an applicant or licensee, or their associate, for the purpose of performing the functions of the Regulator or licensing inspector under the Act and for other specified purposes. The provision also authorises the Chief Commissioner of Police to disclose to the Regulator any information, including personal information and law enforcement data, that they consider is reasonably necessary to enable the Regulator to perform their functions under the Act.

Additionally, new sections 34T and 34U of the Act, inserted by clause 8, enable the sharing of information, including personal and sensitive information between the Regulator and Chief Commissioner of Police for the purpose of objections or representations in relation to licence applications. Specifically, the Regulator must provide a copy of a licence or transfer application and may provide a copy of suspension, cancellation, relocation and variation applications, to the Chief Commissioner of Police (sections 34T and 34V). Sections ‍34U and 34V permit the Chief Commissioner to object and/or make written representations to the Regulator in relation to these applications. New section 34W of the Act enables the Regulator to use information provided by the Chief Commissioner when determining licence applications.

Right to privacy and reputation

By authorising the disclosure of what may be personal and sensitive information, these provisions engage the right to privacy and reputation of applicants and licensees under section 13 of the Charter. However, these amendments are carefully confined to their statutory purpose, to enable the Regulator to exercise their regulatory functions in respect of the licensing scheme and preclude unsuitable licensees, applicants and their associates from carrying on or being associated with a tobacco supply business. Therefore, the proposed disclosure of information does not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill, such that it is reasonable and proportionate to the Bill’s important objectives.

Accordingly, I consider that these provisions strike an appropriate balance between protecting the privacy and reputation of applicants while ensuring that the Regulator has sufficient information to perform its regulatory functions, including determining the outcome of licence applications and reviews. In my view, the information sharing powers are proportionate to the purpose of the limitation and therefore, will not be an arbitrary or unlawful interference with privacy.

Protected information provisions

Clause 8 inserts new section 34ZA, which sets out a new regime for the use and disclosure of ‘protected information’ as defined in amended section 3 of the Act. Protected information includes any information that is likely to jeopardise the safety of another person; reveal an intelligence gathering method, investigative technique or covert police practice; or may prejudice any investigation or criminal proceeding.

The Bill provides that protected information may be withheld from the Regulator if the Chief Commissioner of Police makes an objection, representations, or licence suspension or cancellation application that relies partly or wholly on protected information. Further, if the Regulator makes a licence application decision based on protected information, and provides the applicant with reasons for that decision, they must not disclose the protected information to the applicant (new sections 34ZA(3) and 34ZI). Instead, the Regulator must state only that their decision is based on advice from the Chief Commissioner of Police.

Freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. The right to freedom of expression in section 15 of the Charter has been interpreted as encompassing a right to access information in the possession of government bodies, particularly where an individual seeks information on a subject in which they have a legitimate interest. Accordingly, these provisions may impose a limit on the right to freedom of expression under s 18 of the Charter by limiting a person’s right to access information on matters that concern them.

However, section 15(3) provides that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality. The protective information provisions in the Bill are necessary to achieve important objectives such as the protection of the safety and privacy of individuals, the integrity of police investigations, and the administration of justice. I, therefore, consider that any limitations imposed are either within the internal limits of the right in s 15(3) or reasonably justified and proportionate in accordance with section 7(2) of the Charter.

Therefore, while there are restrictions upon the ability to access protected information that is provided by the Chief Commissioner of Police and is relevant to application decisions, those limits are reasonably necessary to protect the rights of others and the administration of justice, and are therefore compatible with the right to freedom of expression.

Right to fair hearing

As applicants and licensees will be precluded from accessing protected information on which adverse licence decisions may be based, the protected information provisions may engage the right to fair hearing.

Although an applicant is not privy to the entire case against them insofar as the decision is based on the protected information, the Bill provides a range of protections to facilitate procedural fairness. New section ‍34ZM permits a person whose interests are affected by a decision that is based on advice from the Chief Commissioner of Police to apply to VCAT for review of the Regulator’s decision. In such proceedings, VCAT must appoint a special counsel to represent the interests of the applicant to the extent that those interests relate to the protected information on which the decision is based (new section 34ZO). The Bill sets out a detailed process for the hearing of these review proceedings that balances the need to maintain the confidentiality of protected information with the rights of the applicant to a fair hearing (Division 9 of new Part 3AA). Accordingly, I find that any limitation to this right resulting from new section 34ZA is proportionate and reasonably justified.

Evidentiary presumptions in unlicenced sale of tobacco offence

Clause 35 of the Bill inserts new section 33A, which introduces an offence to sell tobacco products without a licence. The provision contains a presumption that the fact that there are more tobacco products on the premises than are reasonably required for the occupier’s use, is evidence of the sale of those products by the occupier.

Clause 29 of the Bill inserts new section 39A, which provides that proof of the delivery of tobacco products is evidence of money or other consideration having been given for the tobacco products and that proof that a transaction in the nature of a sale of tobacco products took place is evidence of the sale of tobacco products.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. These provisions engage this right because they operate to deem certain evidence as proof of the ‘fact’ that an individual has committed an element of an offence and thus reduce the prosecution’s burden to provide evidence in relation to these facts. These presumptions can be rebutted by the defendant adducing evidence to the contrary, when the burden will shift to the prosecutor.

To the extent that these evidentiary presumptions limit the right in section 25(1) of the Charter, any such limit is, in my view, reasonable and justified given the important protective purpose of clauses 29 and 35 of the Bill. As the offences involve acts, being the unlicenced sale of tobacco, that would be difficult for the prosecution to establish in the absence of the presumptions, these provisions are necessary to ensure the effective administration of the licence scheme designed to prevent the unregulated sale of tobacco. The clauses establish facts that are probabilistically likely to be the case (ie, the fact that there are more tobacco products than are reasonably required for the occupier’s use means it is highly likely that it is for the purposes of sale) and enable these offences to be efficiently prosecuted. Accordingly, I do not consider there are any less restrictive means reasonably available to achieve the legislative purpose.

Further, courts in other jurisdictions have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where regulatory offences may cause harm to the public. I consider these presumptions to be a reasonably necessary and proportionate response to address the high incidence of unlawful and organised crime activity in the tobacco industry, and enforce the compliance with the licensing scheme.

Therefore, I am of the view that any limitation on the right to be presumed innocent in section 25(1) is reasonable and demonstrably justified.

Appointment of licensing inspectors

Division 2 of new Part 3AAB provides for the appointment of licensing inspectors to promote, monitor and enforce compliance by tobacco supply businesses with the Act and regulations (new sections 35D and 35F(1)(b)). The Regulator may only appoint a person as a licensing inspector if they are satisfied that the person has the necessary skills, training and expertise to perform the functions and duties, and exercise the powers of an inspector under the Act (new section 35D(2)). The Regulator may require a prospective licensing inspector to consent to having their photograph, finger prints and palm prints taken, and must refer a copy of these and any supporting documentation to the Chief Commissioner of Police for a criminal records check (section 35E(1)–(2)). The Chief Commissioner of Police must inquire into and report to the Regulator on matters relating to whether the prospective licensing inspector is of good repute, having regard to character, honesty and integrity (section 35E(3)).

Right to privacy

To the extent that these provisions require a person to disclose personal and sensitive information, including biometric data or any criminal record, the requirements would interfere with the person’s right to privacy in section 13(a) of the Charter. In my view, any interference would not be arbitrary, because ensuring that only fit and proper people are appointed as licensing inspectors serves a legitimate and important purpose, noting their role in supporting improved compliance and enforcement. Further, these provisions are accompanied by safeguards such as the mandatory destruction of all biometric information obtained for the purpose of considering a prospective appointment (section 35E(4)–(5)), such that they are proportionate to the legitimate aim sought.

Forfeiture provisions

New section 35ZB authorises the forfeiture and destruction of seized tobacco products if the person is found guilty of an offence under the Act. Similarly, new section 37A authorises the forfeiture of prohibited products, which include illicit tobacco products and vaping goods. Further, clause 69 amends Schedules 1 and 2 of the Confiscation Act to include illicit tobacco offences. The effect of these amendments is to render the property of persons convicted of certain offences under the Act subject to forfeiture, asset freezing and other confiscation orders under the Confiscation Act.

Right to property

As property is likely to include real and personal property interests, the above forfeiture provisions could be considered to deprive a person of their property rights.

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

However, any such deprivation will be ‘in accordance with law’ and will therefore not limit the Charter right to property. In particular, new sections 35ZB and 37A are drafted in clear and precise terms. For example, section 37A(1) requires that after seizure of the prohibited product, the licensee be served with a forfeiture notice, which has been approved by the ‘appropriate person’ (as defined in section 37A(8)) in the circumstances. Similarly, the existing suite of safeguards in the Confiscation Act will apply to the tobacco offence included in the forfeiture regime. In addition, any deprivation of property will be reasonably necessary to deprive retailers and suppliers of the proceeds of crime and thus disrupt further criminal activity by preventing the use of property, deterring others from engaging in criminal activity and undermining the profitability of serious criminal activity. This serves the important objective of ensuring effective enforcement of retailer and wholesaler compliance with controls on the lawful sale and promotion of tobacco products under the Act.

The Hon. Melissa Horne MP

Minister for Casino, Gaming and Liquor Regulation