Bills

Tobacco and E-Cigarette Products (Tobacco Product Prohibitions) Amendment Bill

Committee Stage

Debate resumed.

New clause 1A.

The Hon. C.J. PICTON: I move:

Amendment No 1 [HealthWellbeing–1]—

Page 2, after line 5—Insert:

1A—Commencement

This Act comes into operation on a day to be fixed by proclamation.

New clause inserted.

Clause 2.

The Hon. C.J. PICTON: I move:

Amendment No 2 [HealthWellbeing–1]—

Page 2, lines 9 to 14 [clause 2(1)]—Delete subclause (1) and substitute:

(1) Section 4(1), definition of health warning—delete the definition

(1a) Section 4(1)—after the definition of premises insert:

prescribed packaging requirements means—

(a) the requirements for the retail packaging and appearance of tobacco products in the Tobacco Plain Packaging Act 2011 of the Commonwealth; and

(b) the provisions of the Competition and Consumer (Tobacco) Information Standard made under the Competition and Consumer Act 2010 of the Commonwealth prescribed by the regulations for the purposes of this definition; and

(c) any other requirements prescribed by the regulations;

Amendment carried; clause as amended passed.

Clause 3.

The Hon. C.J. PICTON: I move:

Amendment No 3 [HealthWellbeing–1]—

Page 2, line 18 to page 3, line 2 [clause 3(1)]—Delete subclause (1) and substitute:

(1) Section 30(1)(b) to (d) (inclusive)—delete paragraphs (b) to (d) (inclusive) and substitute:

(b) a person must not sell a tobacco product unless it is enclosed in a package that complies with the prescribed packaging requirements;

Amendment No 4 [HealthWellbeing–1]—

Page 3, after line 6—Insert:

(4) Section 30—after subsection (1) insert:

(1a) In subsection (1)(b), a reference to a tobacco product enclosed in a package includes a tobacco product that is enclosed in 2 or more packages.

The Hon. D.G. PISONI: Can the minister advise why the amendments were necessary and why they were not in the original bill?

The Hon. C.J. PICTON: I am being invited to make a critique of the drafter of the original bill, which I will not do. Members of the Legislative Council have a tough job; they seek to represent the whole of the state and come up with fantastic ideas, such as moving this bill.

Obviously, as we have discussed during the course of the bill, this is something that the Hon. Connie Bonaros from the other place has been passionate about. She introduced legislation to the parliament and the government sought to work constructively with her and seek advice from our officials on whether the bill should be supported in its original form or whether some amendments could be made that could enable its passage.

Specifically in relation to the first of those amendments we are discussing at the moment, amendment No. 3 amends section 30—Restrictions on retail sales of tobacco products and e-cigarette products. I am advised the prescribed packaging requirements in the government amendment aim to remove overlap and inconsistencies between offence provisions in the bill.

In relation to the second of the concurrently moved amendments, amendment No. 4, the reference to two or more packages aims to ensure that packages, such as tobacco cartons, do not circumvent the packaging requirements in the bill.

Amendments carried; clause as amended passed.

Clause 4.

The Hon. C.J. PICTON: I move:

Amendment No 5 [HealthWellbeing–1]—

Page 3, lines 9 to 20 [clause 4, inserted section 31]—Delete the section and substitute:

31—Requirements for packaging tobacco products

A person must not package tobacco products for retail sale in a manner that the person knows or ought reasonably to know does not comply with the prescribed packaging requirements.

Maximum penalty: $50,000.

Amendment No 6 [HealthWellbeing–1]—

Page 3, lines 28 to 29 [clause 4, inserted section 32(c)]—Delete paragraph (c)

Amendment No 7 [HealthWellbeing–1]—

Page 4, lines 1 and 2 [clause 4, inserted section 33(2), definition of prescribed tobacco product, (b)]—Delete 'requirements of the Tobacco Plain Packaging Act 2011 of the Commonwealth' and substitute:

prescribed packaging requirements

Amendment No 8 [HealthWellbeing–1]—

Page 4, after line 2—Insert:

(3) In proceedings for an offence against subsection (1), if it is proved that the defendant had possession of a prescribed quantity of prescribed tobacco products, it is presumed, in the absence of proof to the contrary, that the defendant had possession of the prescribed tobacco products for the purposes of sale.

The Hon. D.G. PISONI: Can the minister explain why these amendments were required?

The Hon. C.J. PICTON: I am very happy to explain them in order. In relation to amendment No. 5, this amendment extends the bill's packaging offence in section 31 beyond just a health warning requirement to a broader health warning and packaging requirement.

In relation to amendment No. 6, this provision was removed as the Tobacco and E-Cigarette Products (Tobacco Production Prohibitions) Amendment Bill 2022 included overlap between some of the new offence provisions that could seriously undermine enforcement and prosecution of those offences in some circumstances. The intent of this provision is covered by the amendment to section 30(1)(b) of the act, which states that a person must not sell a tobacco product unless it is enclosed in a package that complies with the prescribed packaging requirements; therefore, section 32(c) is not required.

In relation to amendment No. 7, the government amendment replaces a proposed amendment to the definition of 'health warning' in the bill to instead prescribe an all-encompassing definition of 'prescribed packaging requirements', which includes all the commonwealth packaging and health warning requirements.

Last, but not least, in relation to amendment No. 8, this amendment was included to strengthen the enforceability and potential for prosecution of the amendment included in the Tobacco and E-Cigarette Products (Tobacco Production Prohibitions) Amendment Bill 2022 relating to the possession of certain tobacco products. This provision will allow for a quantity of prescribed tobacco products to be prescribed by regulation, meaning that any quantity equal or greater than this quantity be presumed for the purpose of sale, therefore providing further clarity to any enforcement related to illicit tobacco in South Australia.

The Hon. D.G. PISONI: When is it expected that the regulations will be ready?

The Hon. C.J. PICTON: On the presumption that parliament agrees to this and that Her Excellency provides the appropriate assent, I understand that the department and Drug and Alcohol Services SA have already started considering those regulations. We are not expecting significant delay, but obviously for any regulation there has to be the appropriate cabinet process to go through, as well as Executive Council. Obviously, with that, combined with the passage of legislation, it may be in the order of months for that to happen, but in the course of the passage of regulations certainly not an extended period of time.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (16:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.