Image for Tobacco industry duplicity, legal arguments, the Legislative Council ...

*Pic: Sony200boy, Tobacco Road, Flickr

... and the tobacco free generation

The Legislative Council Sessional Committee Government Administration A, has brought down its report on the Public Health Amendment (Tobaccofree Generation) Bill 2014.

The amendment bill proposes to phase out the sale of tobacco products to any person born after the year 2000, but there are no penalties for smokers. Smoking would not be criminalised. The amendment bill was referred to the Committee in March 2015. It was introduced by Hon. Ivan Dean MLC in November 2014, and it has been debated and scrutinised for well over a year. The committee was asked to look at the workability and practicality of the amendment bill.

The LegCo Committee makes the following key findings:

1. There does not appear to be any significant legal impediment to the operation of the Bill in delivering the policy intent.

2. The Parliament should take a measured and cautious approach in considering a Bill which could limit or ‘extinguish’ fundamental rights relating to age, equality and liberty.

3. The Bill raises some practical legal issues in relation to online sales and the impact of the Bill on tourism/tourists. The proposer of the Bill may wish to give consideration to amendment of the Bill to avoid negative impacts on tourism.

4. Should the Bill be supported, appropriate education programs would be required to effectively implement the Bill. This would incur a cost and would be a matter for the Government of the day.

A number of submissions were made to the Committee including one from Lois Ireland, a retailer, from Flinders Island who said:

“As a retailer who ceased selling cigarettes and tobacco some years ago I was reassured that my decision was correct when contacted today by Imperial Tobacco to lobby the Legislative Council over their deliberations on changes to tobacco sales laws.

I made a conscious decision to stop gaining a profit from sales of a product that I knew to be highly addictive and that was causing long term health issues with those who I knew personally as members of my community. I knew they would go elsewhere to purchase their cigarettes but I did not wish to be further implicated in their poor health choices.

As a result, I fully endorse any moves that make it more difficult for young people to take up/continue smoking, despite any effects such measures may have on businesses. To be honest I’d be happy to see a ban on all sales – think how much lower our hospital costs would be!”

Other submissions were made by the tobacco industry and their front organisations. The Alliance of Australian retailers is a tobacco industry front organisation. It was set up to lobby against plain packaging - but seems to have extended its reach. They made a submission opposing the tobacco free generation to the Legislative Council committee.  There has been some criticism of the author of this letter, by newsagents.

The University of Bath in the UK website has exposed AAR as a tobacco industry front organisation. This is an example of “astro-turfing” a campaign pretending to be a grassroots initiative, while hiding its true origin, goal and funding.

Tobacco Tactics website also says.

“In June 2011, the Sydney Morning Herald reported that Tony Barry, the former press secretary of leading Australian Liberal MP Malcolm Turnbull, was working for the AAR, lobbying Liberal MPs and crossbenchers against the tobacco reforms. He was reportedly earning more than $20,000 a month.”

On Tuesday 21 August 2012 the Legislative Council resolved a motion supporting the creation of a tobacco-free generation (TFG) of children born this century in Tasmania, as well as progressively reducing the availability of tobacco products in Tasmania. At that time no Bill was before the Parliament to progress this proposition, nor has any government since introduced such a Bill.

The proposal was referred to the Commissioner for Children for consultation with the generation of young people who would be affected by the proposal. A report was prepared in 2013. It is available from the office of the Commissioner for Children, but is no longer on their website.

The Cancer Council of Tasmania carried out two surveys of public opinion on smoking matters including questions on TFG. The CCT survey shows that 75% of Tasmanians support the idea of a tobacco free generation, an increase on previous surveys.

The Bill WILL:

• Prevent the sale of tobacco products to persons born since the year 2000, that is, members of the tobacco-free generation.

• Prevent the supply of tobacco products by licensed tobacco sellers, or their agents, to members of the tobacco-free generation.

• Provide that members of the tobacco-free generation must not give false identification to tobacco sellers and there would be a penalty for doing so.

• NOT prevent members of the tobacco-free generation from smoking, or attempting to purchase tobacco products. Members of the tobacco-free generation would not incur any penalties for smoking.

• NOT prevent friends and family from giving tobacco products, such as cigarettes, to members of the tobacco-free generation, however, they must not SELL tobacco products to the tobacco-free generation.

• NOT prevent “botting” of cigarettes by members of the tobacco-free generation. They would be able to acquire cigarettes from another person other than a retailer or agent and would not incur any penalties for doing so.

The Parliament has a built in opportunity to look at this legislation again, make certain that it is operating effectively, and that any potentially unforeseen consequences be appropriately moderated or amended. The Bill:

• Provides for a review of the legislation, which must then be tabled in Parliament, when the tobacco-free generation reach the age of 21 years, in 2021;

• Provides for another review of the legislation when the tobacco-free generation reach the age of 25 years, in 2025 ; and

• Provides that the reviews of the legislation be conducted by the Director of Public Health, who can recommend amendments to improve the legislation so that it is more effective and efficient.

The Public Health Act 1997 provides for guidelines which describe elements of this Bill, such as “proof of age”, as defined in the Act as a being a driver’s licence or a passport. Additional forms of proof of age are outlined in the Guidelines for the Sale of Tobacco, March 2012.

There are no exemptions for tourists who may be members of the tobacco free generation, however, there is nothing in this Bill to prevent tourists from bringing with them sufficient personal supplies of their own tobacco products for the duration of their stay. Tourists are generally accustomed to visiting countries with different laws. Tourism advisories provide information about local customs and laws, such as alcohol not being permitted in many Islamic jurisdictions.

The Anti-Discrimination Commissioner has written to the Parliament to advise that this bill does not constitute unlawful discrimination.

A number of lawyers and an international human rights expert also provided reports and advice to the Committee. Dr. Gogarty from UTAS said there was no legal impediment to the bill, but expressed concerns about age discrimination and liberty.

A comprehensive response and rebuttal to Dr. Gogarty’s advice was provided by Barrister Neil Francey, who says that Dr. Gogarty abandons a strict legal approach and adopts an “extreme libertarian” approach.

The errors in Dr. Gogarty’s article in the Conversation were picked up by Neil Francey and refuted in the Annexure, commencing at page 19.

Dr. Van der Eijk said that she supported the legislation and that smoking is neither a liberty right nor a privacy or equality “right”. She quoted several UN Human Rights Declarations in support of her arguments. Dr. Van der Eijk has published an article in the international journal Tobacco Control on the ethical considerations of the tobacco free generation idea.

Dr van der Eijk added relating to the absence of a right to smoke. “It is highly unlikely that, given the toxic and addictive nature of smoking, it can be defended as liberty right…...and children’s rights.” Also, “Smoking can also not be defended as a privacy right.”

Dr. Van der Eijk’s submission can be read HERE

Eminent international Professor of Law, and Professor of Public Policy and Urban Affairs in Boston USA, Professor W. Parmet also commented on the bill. Prof Parmet prefaced her comments by saying “I base my comments upon my more than thirty years of experience as a researcher, scholar and teacher of public health law, health law, and bioethics. As Matthews Distinguished Professor of Law -and Professor of Public Policy and Urban Affairs at Northeastern University, as well as the Associate Dean for Interdisciplinary Education and Research Support, I direct the University’s Program on Health Policy and Law. I have written over 80 scholarly articles and book chapters, as well as 4 books relating to public health law and ethics. The opinions expressed below are my own and do not represent those of my University.”

Professor Parmet said.

“Critically there is no fundamental right to exercise all of one’s choices without any, even indirect, legal hurdles. If that were the case, cigarette taxes, which also make It harder for some people to exercise their choice to smoke by raising the cost of cigarettes would also violate individual’s fundamental rights. Indeed, all public health laws would violate someone’s fundamental right, as all impose some road blocks on individual choice. (A law requiring a prescription to obtain a narcotic makes It harder for the patient in pain to get the drug without seeing a physician; laws requiring restaurants and bars to have liquor licenses likewise make it harder for people to have unrestrained access to alcohol). In debating the wisdom of any particular public health law, it is important not to confuse the question of whether the benefits conferred by the law outweigh the inconveniences and hurdles It imposes, with the question of whether it violates recognized fundamental rights, such as the right to bodily integrity or free speech.”

There would appear to be no legal or ethical impediments to the Public Health Amendment (Tobaccofree Generation) Bill 2014.

Last week the Cancer Council released the latest smoking data for children who would be part of this smokefree generation, affected by the bill should it become law. The2014 Australian Secondary Students’ Alcohol and Drug (ASSAD) Survey showed a decrease in teenage tobacco use. The 12-15 year old adolescent smoking rates, at 3% are the lowest since the survey began decades ago. These young people will turn 18 in 2018 when the bill would come into effect (if it passes) and would be the first generation saved from tobacco smoking and its associated diseases.

Quit Tasmania Director Abby Smith said the results were very encouraging. “The last survey (2011) found no change in smoking rates, but overall the 2014 results show tobacco use among Tasmanian secondary school students has declined,” Ms Smith said.

Ms Smith said smoking rates are at an all-time low. “Quit Tasmania believes this is due to a comprehensive tobacco control strategy with effective strategies for reducing tobacco use among adolescents, including tobacco price increases, plain packaging, ongoing mass media campaigns and increasing smoke-free areas.”

It is unclear whether or not the state government will continue with the mass media campaigns that are so crucial for reducing smoking rates, and which were funded in 2013 by the Commonwealth government, led by Prime Minister Julia Gillard and federal Health Minister Tanya Plibersek, at the urging of then State Health Minister Michelle O’Byrne. The funding has now run out, and no public commitment has been made to continue the campaigns. A recently published article in a peer reviewed international journal outlines how successive Tasmanian governments failed in this regard, and why Tasmanian smoking rates remain higher than other states. “Political barriers to evidence-based tobacco control policy: Cronyism and cognitive dissonance, a Tasmanian case study” was published in April 2016 in the journal Evidence and Policy.

We wait with some interest to see what the Legislative Council will do with the amendment bill now that the committee has looked at it, and appears to have no serious objection.  Furthermore, the government suggestion that they might raise the “smoking age” has not been heard of for some time.

We also wait to hear whether or not the government will commit to continuing mass media campaigns to combat smoking, or if they are prepared to see smoking rates increase again. Smoking rates and inevitably rise, and calls to Quitlines fall, when anti-smoking community education and mass media campaigns are reduced or suspended.

If the Tasmanian government is serious about having a healthy Tasmania by 2025, they will have to step on the gas to introduce these two measures: the tobacco free generation and increased mass anti-tobacco media campaigns – because thus far – they have done nothing, since being elected over two years ago. - See more at:

*Kathryn Barnsley is an Adjunct Researcher at the School of Medicine, University of a Tasmania and recently completed a PhD thesis on Barriers to evidence based tobacco control in Tasmania.  All opinions expressed are her own and do not represent the views of UTAS. The research has been published in international and local journals.

Evidence and Policy journal

Other writing on tobacco control in Tasmania, BMJ blogs

As well as,

Including Croakey
and the Conversation.

Kathryn found tobacco industry interference, corruption, cronyism, smoking politicians, complex bureaucratic systems, and conservative white male politicians were barriers to evidence based health policy. Kathryn is a former member of the National Expert Advisory Committee on Tobacco, responsible for comprehensive public health legislation in Tasmania, and Convenor of SmokeFree Tasmania.