Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 August 2024.)

Ms PRATT (Frome) (11:36): I rise to speak to this bill, noting that I am the lead speaker for the opposition. In rising to contribute to the Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill as the lead opposition speaker in this space, we know on both sides of the house how toxic and malicious these products are. We know that e-cigarettes—vapes for short—make vapour for inhalation and simulate cigarette smoking. They are not safe. We know that parents are extremely concerned about the presence of these items in our community and, of course, that the use of them leads to serious health outcomes.

They are sometimes marketed as cessation tools to help adults quit smoking, and I respect the approach and the research that has gone into many attempts to support those with an addiction to nicotine and smoking to use the materials and resources available to them, but when it comes to young people accessing vapes, we have to keep asking serious questions about the supply within our community.

There is a lot of risk associated with vaping to say the least. Most e-cigarettes in Australia contain nicotine, even when that packaging says that they do not. Nicotine is a highly addictive and toxic drug that can harm brain development and impact attention, learning, memory and mood changes. All e-cigarettes, even those that do not contain nicotine, contain dangerous substances in the liquids and the aerosol.

Research shows a strong association between vaping and future smoking behaviours, with young people who choose to vape or are exposed to vaping three times more likely to take up cigarettes. As with smoking, being around people who vape means you can also breathe in that second-hand aerosol from the vapes. There is strong evidence within our education system that our students truly are vulnerable to these products.

In August 2024, the government introduced this amendment bill into the house, and that was after public consultation in 2023 hosted via YourSAy. Many submissions were reviewed by Dr Chris Reynolds, a public law expert chosen by the current government, who recommended refinements to the act and regulations.

With this bill, the government seeks to align with legislative and regulatory changes that were passed by the federal government in June 2024, and that was in an attempt to reform national laws and enforcement powers against the supply and sale of illegal tobacco and vaping products. It seeks to further strengthen strong South Australian tobacco and vaping laws and the enforceability of these laws.

This bill introduces its own prohibition on the sale and supply of e-cigarette products as well as the possession of e-cigarette products for the purpose of sale. While this might be similar to bans introduced through the federal Therapeutic Goods Act, the state government claims that having these offences in South Australian legislation will maximise the role of enforcement officers in this state and see funds from the penalties returned to the state Treasury.

The government allocated $16 million to create a dedicated task force within Consumer and Business Services (CBS), shifting the enforcement duties and responsibilities away from SA Health and from SAPOL. However, despite the member for Enfield's contribution in the house just a couple of weeks ago, which I suggest went close to reflecting on legislation before the house, the opposition would say the jury is out on whether this government has truly achieved its objective to crack down hard on the illegal sale by the transfer of this enforcement duty to CBS. In a media release from May, the government stated:

From July 1, CBS will take on the licensing functions currently undertaken through SA Health, with responsibility for assessing new licence applications, ensuring existing licensees are complying with the law and investigating any reports of illegal sales.

CBS will assume responsibility for licensing of tobacco and vapes, and enforcement relating to their sale and supply, with approximately 20 additional full-time equivalent employees recruited to cover everything from licence applications, to responding to consumers and inspecting premises.

If this is in response to some of the failures we have seen at the federal level to crush this sinister and dangerous black market then perhaps our state is going to need more than $16 million allocated to it. The federal Coalition has announced and committed $250 million towards a law enforcement package, including an illegal tobacco and vaping task force, which would be led by the Australian Federal Police, should they win at the next federal election.

This is in contrast to Minister Butler, the federal Minister for Health, who has ruled out our most experienced law enforcement officers by stating recently that Labor 'are not going to use the police'. I raise this because in my own community there are concerns from police officers throughout the region. We all who live in our country towns are very acutely aware of the presence of shops and retail spaces that are trading in these products, with suggestions of breaches against the act.

What has filtered back to me is a frustration from our local police force that certainly the signal from the federal government, and at the state level as well with CBS being involved, is that the enforcement, the circumspection, the observation and the tracking of the sale of these items in our communities is now going to be the business not of SA Health and not of SAPOL but of Consumer and Business Services. We hope CBS demonstrates its ability to not just crack down on city premises but that that $16 million extends to the regions.

Last year, we debated the Tobacco and E-Cigarette Products (Tobacco Product Prohibitions) Amendment Bill 2023. The bill mainly amended section 30 to section 33 based on restrictions on the retail sale of tobacco products and e-cigarette products, their packaging and laws around the possession of certain tobacco products. The act now prohibits the supply or sale of tobacco products in South Australia that do not meet the prescribed plain packaging and health warning requirements under commonwealth legislation, which includes the requirements of the commonwealth's Tobacco Plain Packaging Act 2011.

The act also prohibits the sale or supply of tobacco products that are prohibited goods or have not had the required excise duty paid as per the commonwealth Customs Act 1901 and Excise Act 1901. Finally, it prohibits measures to curb smoking and vaping that include banning non-prescription e-cigarette imports, regulating flavours, packaging and nicotine concentrations and promoting public awareness campaigns.

This current amendment bill now aims to refine tobacco control policies by removing references to sleeping or living areas in prisons or detention centres, introducing greater criteria for tobacco merchants and allowing the minister to impose conditions on licences. It also introduces a new offence prohibiting tobacco sales by minors—an important point—and vending machines. The act also includes a smoking ban for covered public transport areas, allowing 'smoking permitted' signs in hospitality venues and establishing powers for authorised officers to comply.

This proposed legislation also includes new smoke-free and vape-free areas within 10 metres of children's education and childcare centres and five metres of non-residential building entrances and public hospitals (where the opposition has evidence of noncompliance already, so I suspect some changes will need to be made in that area). Health facilities will be impacted, as well as outdoor public swimming facilities, major sports or events facilities, playing and viewing areas during organised sporting events for under 18 year olds, on beaches within 50 metres of patrol flags and also under or within five metres of jetties.

The amendment bill has incorporated recommendations from public law expert Dr Chris Reynolds, who I mentioned earlier, and those recommendations include:

modifications to align with current tobacco control policy directives;

defining 'residential premises' such that jails and detention facilities are covered under the current smoke-free legislation;

tighter requirements for licence holders who sell tobacco products;

modifications to the licence requirements to allow the minister to set requirements in line with the goals of the act;

the wholesale tobacco licence being reinstated;

the introduction of a new crime that forbids minors from supplying or selling tobacco products;

tobacco goods not being allowed in vending machines going forward;

the smoking restriction in covered public transportation places being amended;

permitting 'smoking permitted' signs in establishments catering to hospitality;

the establishment of the authority to issue compliance notices by designated officials;

changing the confidentiality provision governing information exchanges between SA Health and other organisations;

extended judicial authority to limit, halt or revoke a tobacco vendor's authority; and

of great concern, this bill seeking to insert a new section for the establishment of controlled purchase operations, whereby people under the age of 18 will be given some undetermined operational powers, which we intend to explore in detail in committee and through the opposition's amendment.

The minister's second reading speech makes no reference to the amendment to this clause, and I draw particular attention to it. The minister's speech makes no reference, either delivered in person or read directly into Hansard, of an amendment which now is clearly set to authorise a person under the age of 18 to be a controlled purchase officer. While we the opposition do not oppose the intentions of this bill to crack down on the illicit trade of tobacco and e-cigarette products, in my portfolio role and in my role as a local MP, tracking very closely parents' concerns about the exposure young people currently have to these toxic products, I am concerned about the youthful workforce the government imagines might be available to the state.

New section 69B(1) in this bill allows the minister to authorise a person to be a controlled purchase officer, including a person under the age of 18 years, who is able to take any action specified by the minister in the notice of authorisation. New section 69C(2) provides:

A controlled purchase officer who is under the age of 18 years must give to the authorised officer supervising the controlled purchase operation anything obtained by the officer as a result of the operation.

It is important to note, to state the obvious, that it is against the law for anyone to give cigarettes or vapes to people aged under 18. The section I have just mentioned raises ethical concerns, I think, and I call on the government to justify through the committee stage its approach to using children for what can only be described as a sting operation. The Minister for Health and Wellbeing was recently quoted by the ABC as saying:

This is essentially a sting operation where we can send in kids to see if retailers will sell tobacco or vapes to young kids—and then we can prosecute—

he suggests retailers—

if they've broken the law. That's going to be another tool in the armoury for our enforcement officers to be able to take action against people doing the wrong thing.

SA's consumer affairs commissioner calls the practice 'test purchasing' and says it has been around for years, but he would not expand on that method. Is it the case then that the government, being unable to fund more than 24 FTEs in their capacity for crackdowns and enforcement, has found a cheaper option and plans to send children in like some modern-day Artful Dodger? I wonder.

The Premier takes the view that his government would recruit children thoughtfully and in a way that invites consent from appropriate people. I have looked very carefully, but none of those words appear in the bill. There are in fact no details about how this will work. It is just a thought bubble.

The Premier says that the objective of the proposal was to prevent children from becoming addicted to vaping, but I would argue strongly that this legislation is in fact meant to do that. We are the adults. Is the government really suggesting that children under the age of 18 should protect themselves from this toxic addictive industry, or have they run out of options?

This week, and in recent weeks, we have seen the government running away from scrutiny, muzzling the opposition's duty in a previous sitting week to inquire and interrogate legislation. Those bills in the last sitting week were guillotined, and conversations and debate were censored, filtered and cut short. I hope that at the start of a fresh week we will see due process being given to bills of this nature where at the heart—

The ACTING SPEAKER (Mr Brown): Member for Frome, I do remind you it is disorderly to reflect on a vote of the house.

Ms PRATT: Thank you, Mr Speaker. At the heart of this bill is intention across both sides of the chamber to deliver outcomes that will contribute to a crackdown on illicit trade and enforcement of fines that will penalise those who are taking advantage of young people.

I take this moment to list questions that may not make it to committee but which I think are very relevant to the sections that I have referenced regarding new sections 69B and 69C, in relation to the minister being able to authorise a person under the age of 18 to become a controlled purchase officer. These questions are legitimate in the fact that the current bill, the amendment bill, is silent on the scheme, the device, the mechanism for how this strategy will actually be implemented or deployed.

I look forward to the government's response to validate and justify its inclusion in the first place. To the minister and the government as a whole: what is the minimum age for recruitment of this young person? The bill says under the age of 18, but it could extend all the way back to nine or 10. I suggest that the government is not considering the employment of a nine year old in a sting operation, but there is a lot of information missing.

Can a child under the age of criminal responsibility in fact, in the Premier's words, be a tool in the armoury of government? I beg your pardon; that might have been the minister's words, but I still suggest that while we are debating elsewhere as a nation the age of criminal responsibility we are looking at a workforce of minors to do the work of adults and government.

How is the government going to recruit? Are ads going to be placed on Seek? Who is going to make that selection? Will there be a regional recruitment process? Will these young people under the age of 18 be paid and how much? Are they going to need a tax file number, or will they be paid in Spotify gift vouchers or in cash? Are they going to get a budget for wearing undercover clothes?

Who is going to give consent for this young person to participate in this role? Can children and young people under the guardianship of the CEO of the Department for Child Protection apply or be considered? What safety and welfare provisions are in place to protect them? Will they qualify for the employment assessment program? Will WorkCover apply?

I pause halfway because in no way do I mean to suggest that these questions I am putting to the chamber are flippant or to be seen as dismissive. I am deeply concerned that there is no information available to the public or this house to understand what the government means by a suggestion that an under-18 year old can be employed or utilised by the bureaucracy in covert sting operations.

Has the government consulted with the Guardian for Children and Young People or the Commissioner for Aboriginal Children and Young People? Will these young people under the age of 18—controlled purchase officers—qualify for legal representation by the Crown if anything goes wrong during that covert operation? We have seen some very questionable criminal activity taking place in the city of Adelaide in relation to arson attacks on premises, with the suggestion that these businesses and these premises are tied to the illicit trade of tobacco and vapes. This is not a safe industry for young people to be associating with.

Was the Cancer Council consulted on this amendment? Will children identified as having used vapes be targeted particularly for recruitment, and are they at risk of therefore developing an addiction we are trying to avoid? Is a young person under the age of 18 who has been found guilty of any offence eligible to become a controlled purchase officer? What steps would be taken to determine whether a person under the age of 18 years is actually deemed a fit and proper person as per new section 5A?

In the house in recent weeks the Minister for Consumer and Business Affairs reported:

Inspectors are now out enforcing compliance, and CBS has conducted more than 200 inspections, and confiscated more than 230,000 cigarettes, 606 kilograms of pouch tobacco, 138 kilograms of shisha tobacco, and over 3,500 vapes. Since CBS were tasked with these new compliance and enforcement activities, we have had almost $650,000 worth of illicit tobacco and vaping products taken off our streets.

If this measure has already been taken by this government why does the Premier need kindergarten cops? The amendment itself is dependent on instructions from the minister of the day which appear to be unlimited. The legislation, the current amendment bill, is silent on any provisions that guide the parliament or the courts to administer or interpret this astounding covert tactic. There is no scheme, there is no device and there is no mechanism or instruction as to how a minor will be recruited to this Beverly Hills Cop operation.

A briefing from parliamentary counsel confirms that there is no known precedent for any act that would authorise a minor to participate in a similar covert controlled operation. While I have not discovered a legislative precedent where any under-age children would be employed in this way, it has been put to me that there is a hypothetical scenario where in an emergency situation this might be considered for a tactical response, which I understand. However, the principle remains that our laws should not facilitate anyone to commit a worse offence to catch a lesser offence.

This government has failed to outline any scheme by which this legislative device could be considered or accepted. There are too many unknowns relating to consent, safety provisions, awards, risk and welfare. It does not even stipulate a minimum age limit, leaving the possibility for children under the age of criminal responsibility to be recruited.

It is currently against the law for anyone to sell cigarettes or vapes to people under 18, but in a double standard, the government are considering sending children into businesses, unsafe businesses, to check if vapes and illegal tobacco are being sold. The only comments the government have officially made about this amendment are to be found in the media. I conclude my remarks.

Ms HUTCHESSON (Waite) (12:00): I have spoken about my thoughts and attitudes towards smoking and vaping in this place before, knowing firsthand the lifelong impact that these harmful practices can have. Watching my father slowly die from COPD last year and over the preceding five years, I cannot explain in words how strongly I feel about it.

I cannot bear to see young people with a vape in their hand. Having replaced cigarettes, and from what I can see being attractive to a much younger audience than cigarettes, it is frightening. I cannot stand to hear people trying to justify that vapes are not as bad as cigarettes. It is clear that they are and possibly worse. It is disgusting that cigarette companies and others are marketing vapes at kids with bright colours, patterns, and with fruity flavours. It is disgraceful and they should be ashamed of themselves.

When kids are little, we lock up the cupboards and make sure poisons are put away in hard to reach places. Things like medications have a bitter taste to deter kids. Chemicals like disinfectant; weedkiller; batteries; arsenic; bug sprays, which is known to damage DNA; chlorine and pool chemicals: we put them away as we know they are harmful and poisonous.

Those chemicals are formaldehyde, acrolein, mercury, arsenic, benzene and chlorine. This is the cocktail of what the fluid is that is in vapes. It is what our kids, and more broadly adults, are ingesting when they vape. They are the chemicals that cigarette companies and others are marketing to our kids. They are handing them poison.

It is clear that we need to lock those chemicals away. It is clear that as a government we need to lock those chemicals away, and we have. We are now strengthening the padlock and increasing the penalty of opening that cupboard and strengthening the penalties for the criminals who try to hand our kids the keys.

Researchers keep learning more about e-cigarettes every month, but we already know the harms of vaping can include nicotine addiction, breathlessness and symptoms of nicotine poisoning such as vomiting, nausea and diarrhoea. Kids are ending up in hospital, in some cases incredibly sick and even dying from ingesting these poisons. Enough is enough. Our government is committed to taking strong action to halt this serious health problem and to protect the health of South Australian young people and children.

As I mentioned, we have already taken steps to stamp out the use of vapes in young people and to penalise those who target our kids. To date, we have run hard-hitting media advertising campaigns about vaping across radio, outdoor and digital platforms, including Instagram, TikTok and YouTube. We have been supporting schools with an education campaign, resources and staff training aimed at preventing children taking up vaping and helping those who want to quit. Our schools have had to install vape sensors in the bathrooms. The students have to check in when they go to the toilet and teachers are back on toilet duty at lunchtime. It is a very sad situation.

We are not taking this anymore. We have introduced new vape and smoke-free areas that commenced on 1 March 2024, banning vaping and smoking in a variety of public outdoor areas, including our schools, childcare settings and under-18 sporting events and imposing tougher licence conditions on retailers to reduce the illegal sales of tobacco and vapes.

However, there is still more to do and it is good to see that we are not the only jurisdiction taking this on. The federal government is also tackling this issue head on and it is why we need to make these amendments to this bill.

The Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill 2024 seeks to amend the act to align South Australian legislation with commonwealth legislation as part of the national vaping legislative reforms passed by the Australian parliament in June 2024. This includes creating an offence for the sale and supply of non-therapeutic vaping products and prohibited nicotine products. The bill also seeks to:

ban the supply of vapes to any person under 18 years old, even by prescription;

increase penalties up to $1.5 million for some breaches;

introduce a ban on vending machine sales of tobacco products in public areas; and

establish a new authority to ban novel products that are marketed as an alternative to vapes, including nicotine pouches.

It goes further, creating a smoke-free and vape-free buffer zone for enclosed public transport areas and looking to update licensing and enforcement provisions to allow for greater capacity to enforce breaches of the law.

Vapes are poison and they have no place in our pockets, or indeed in the mouths of our kids. It is not just vapes, though, that we are cracking down on; the increasing prevalence of illicit tobacco being sold across Australia is also a concern. Cost-of-living pressures see smokers looking for cheaper alternatives—alternatives that are not controlled and alternatives for which we have no idea of what is in them. It is why our government has committed a further $16 million over the next four years to tackle this growing trade in illicit tobacco as well as to take action against anyone who thinks they can still sell e-cigarette products to our children and young people.

From 1 July 2024, Consumer and Business Services assumed responsibility for the licensing and enforcement functions related to illegal sales of e-cigarettes and illicit tobacco. They are now responsible for assessing new licence applications and ensuring existing licensees are complying with the law and investigating and prosecuting offenders. This tougher compliance approach is necessary to tackle the criminal activities that are occurring and is more closely aligned with their current compliance work.

The bill includes enforcement powers and processes that are consistent with those used by Consumer and Business Services for other state laws. It is responsible for, and also introduces, nation-leading penalties for selling, supplying and commercial possession of illicit tobacco products. They are the new cop on the beat.

The time to act against this scourge is now, and I am very pleased that we are going in hard. We need to do more than create harsher penalties, though. We need to work with our communities: work on preventative measures, educate them and develop evidence-based programs and policies to keep them healthy. Can I just add that you can report any business or individual suspected of selling nicotine vaping products. Please go to the SA Health reporting form.

This is important legislation to ensure we protect young South Australians against the supply of illicit tobacco products and vaping products and to crack down on this incredibly important public health issue to ensure the health and wellbeing of our South Australian children and young people.

We know the impact of smoking. I know the impact of smoking. My dad knew the impact that his years of smoking caused: he took his last breath knowing. My mum now knows the impact of knowing. We are learning more about the impact of vaping. Let's not have future fathers and mothers taking their last breath knowing. I commend the bill to the house.

Ms THOMPSON (Davenport) (12:07): I, too, rise to speak to the Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill 2024. Despite all the evidence, tobacco smoking remains the leading cause of preventable death and disease in Australia. Today, less than 9 per cent of South Australians smoke, which is a welcome development when you consider that a majority of Australians smoked not all that long ago and that exposure to second-hand smoke was routine. But, of those 9-odd per cent of people who choose to smoke today, it remains true that about two in three of them will die as a result of that decision, and that is a horrifying prospect.

Through government action and legislation, including world-leading plain packaging laws introduced at a federal level, we have made significant progress. As new products enter the market, though, in particular devices that capture the interest of children and young adults, we have to be so vigilant. Beneath the bright packaging and the bubblegum flavours lie chlorine, which causes lung damage; benzene, which you find in bug spray and which is known to damage DNA; and heavy metals like mercury and others.

Research released in December 2023 confirmed that the percentage of secondary students reporting vaping increased from 4 per cent in 2017 to 16 per cent now. That is an unacceptable increase in the number of young people choosing to ingest those toxins, many of whom will go on to suffer from nicotine addiction and, potentially, symptoms of nicotine poisoning.

We are not in a position to sit on our hands knowing that health outcomes of young South Australians are compromised by the availability of e-cigarettes and vapes, and that is why we have taken such drastic action. Already we have run extensive advertising campaigns exposing the dangers of vaping and supported schools in delivering student education and staff training. We have introduced new vape and smoke-free areas in public settings and imposed tougher conditions on retailers to reduce illegal sales. That is quite the undertaking, but our work is not done yet.

The Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill 2024 seeks to align South Australia's legislation with reforms passed by federal parliament earlier this year. We want to ensure South Australia's approach to harm minimisation is consistent with that of the country, and we do that by prescribing the sale and supply of non-therapeutic vaping products and prohibited nicotine products as an offence.

The bill also increases penalties for breaches, up to $1.5 million in some instances; places a ban on vending machine sales in public areas; creates smoke and vape-free buffers for enclosed public transport areas; and strengthens enforcement provisions to see that breaches are adequately addressed. Supporting this legislation is $16 million committed by the Malinauskas Labor government to tackle illicit tobacco trading, a firm warning to anyone who thinks the provision of e-cigarette products to children will not be met by the full force of the law.

From July 2024, Consumer and Business Services also assumed responsibility for licensing and enforcement related to illegal e-cigarette and tobacco sales, meaning CBS is now working to ensure compliance and prosecute offenders. This tougher compliance approach is necessary to tackle criminal activities and stamp out illicit tobacco sales, and it is already working. Since 1 July, nearly $300,000 worth of illicit tobacco and vapes has been seized in raids, with more than 200 inspections having been carried out in conjunction with the Australian Border Force. That is more than 153,000 cigarettes, 177 kilograms of tobacco by weight, and 135 kilograms of shisha.

These raids are continuing, and I would encourage anyone to report illegal tobacco and vape dealers to CBS via its website. While there is no doubting the importance of thorough enforcement, our want to drive down the prevalence of smoking and vaping requires more than just a heavy hand. That is why we are establishing the independent Preventative Health SA to develop evidence-based programs and policies that keep South Australians healthy, with smoking and vaping a key priority.

This legislation will bolster already significant efforts by government to crack down on the distribution of illicit tobacco, e-cigarettes and vapes, but just as importantly it indicates that we will pull any regulatory lever to support the long-term health and safety of not just children and young people but all South Australians. I commend the bill to the house.

The Hon. A. MICHAELS (Enfield—Minister for Small and Family Business, Minister for Consumer and Business Affairs, Minister for Arts) (12:12): I rise today to support the Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill 2024. This bill is a crucial step towards reducing smoking and curbing the rising and very worrying trend of vaping, particularly amongst our young people. Tobacco smoking remains the leading preventable cause of disease and death in Australia. There are about 190,000 current smokers in South Australia, and about two out of three of those people, if they do not quit, will die as a direct result of smoking.

Smoking affects every South Australian, whether you are a smoker or are exposed to smoking. Curbing this habit is everyone's responsibility. We have come a long way from the times when a majority of people smoked or were exposed to second-hand smoke as a normal part of daily life. In today's community, far fewer South Australians are smoking and we expect public places to be smoke free.

In recent years, we have seen an alarming trend with a rise in the use of e-cigarettes or vapes. The use of vapes is a growing trend both in South Australia and nationally, particularly amongst our children and young people. It is particularly concerning to read that around 25 per cent of secondary school age students have used a vape, with about 15 per cent using one in the past month, up from 2 per cent in only 2017. That is a substantial rise.

This government will not stand by and watch a large proportion of our young people become hooked on dangerous products like vapes and e-cigarettes. The Malinauskas government has been actively involved in the national vaping reforms that started this year. These reforms have led to a ban on the importation, manufacture, sale and supply of non-therapeutic e-cigarette products in Australia.

We have also seen an alarming trend in the increased sale of illegal tobacco and vape products. The sale of illegal tobacco and vape products is becoming increasingly blatant and potentially provides income for serious and organised crime. With this bill, we aim to further strengthen our tobacco and vaping laws and improve the enforceability of these laws in South Australia. The bill introduces its own ban on the sale, supply and possession of e-cigarette products in South Australia.

The Malinauskas government is also cracking down on illegal tobacco and vape products in conjunction with the Albanese federal government. New national legislation came into effect on 1 July 2024 to shut down the non-therapeutic retail industry by making the sale and supply of such vapes by retailers unlawful. I emphasise that South Australia remains committed to a national enforcement approach and will continue to work with law enforcement agencies in other states and nationally to develop and implement a national vaping enforcement framework to eliminate unlawful vaping in our community.

As the minister who is now responsible for the licensing of retailers of tobacco and e-cigarettes, I am pleased that this bill introduces new fines that are the toughest amongst all states in our country with its amendments to the tobacco act. Our government wants to send a clear message that we are serious about cracking down on people selling illegal e-cigarettes or tobacco.

As of 1 July, the Premier has tasked me as minister and my agency with enforcing licensing and enforcement activities for the sale of illegal tobacco and vape products in South Australia. Since I assumed that responsibility, CBS has been ramping up their enforcement, including onboarding 22 additional FTEs to cover everything from licensing applications to consumer inquiries and inspections, with an additional $16 million of funding.

Inspectors are now out in force with compliance action. CBS has conducted more than 220 inspections and confiscated nearly 300,000 cigarettes, more than half a tonne of pouch tobacco, over 100 kilograms of shisha tobacco and over three and a half thousand vapes. Since CBS was tasked with these new compliance and enforcement activities, over $700,000 worth of illegal tobacco and vape products has been taken off our streets.

Currently, CBS has the ability to impose on-the-spot expiation fines of up to $1,200, and for serious and/or repeated breaches penalties range from $10,000 to $50,000 depending on the offence, but more work needs to be done to stamp out this insidious crime. We are committed to driving this illicit trade out of South Australia. We need to impose significant penalties to ensure that businesses cannot simply pay fines and continue illegally selling the very next day.

Some of the new penalties for selling tobacco without a merchant licence include a maximum $750,000 for the first offence and $1.1 million for a second offence. Selling a tobacco product to a minor can result in a penalty of up to $1.5 million under these new amendments. These penalties are significantly higher than the current range of between $20,000 and $40,000.

The trade of illicit tobacco and vapes is putting the lives of ordinary citizens at risk. In Victoria, there are regular reports of shops selling illicit tobacco being firebombed as organised crime gangs seek to push out their competition. The threat is such that Victoria Police have written to their state's landlords to advise them of the risks of leasing their shopfronts to tobacconists. Thankfully, we have not seen an escalation of violence in South Australia like that which has been experienced in Victoria and is creating a serious risk to the safety of people in the vicinity of these tobacco shops. That is why we are taking these strong measures to stamp out the illicit tobacco trade to ensure we do not see the escalation of violence that has been witnessed over the border—and we are going further.

While CBS has seized significant amounts of illicit tobacco products and intends to take appropriate enforcement action, this action takes time, and during that intervening time a shop can just restock and open up to the public again. One way of addressing this is for CBS to repeatedly conduct inspections at the same premises, seizing tobacco on each occasion. However, this approach is resource intensive and may lead to an increase in aggression that could therefore risk the safety of our authorised officers. Instead, this bill, with a government amendment, will enable stores to be issued with interim closure orders. These closure orders may be issued to a retail or wholesale premises, irrespective of whether they possess a tobacco merchant licence.

This is our message to dodgy operators: selling tobacco without a licence or to our children illegally will result in substantial financial penalties and shop closures. It is everyone's responsibility to ensure that our children and our young people do not take up smoking or vaping, or the next harmful trend that this relentless industry tries to introduce. By supporting this bill, we are supporting South Australian children and young people, ensuring we eliminate the supply chains for illicit tobacco products and vapes, and any future emerging nicotine products.

The Malinauskas government is committed to being at the coalface of tackling this significant public health threat posed by illicit tobacco and vapes and the criminals who sell them. We are moving to a smoke-free and vape-free future for our young people, and we are taking the fight directly to those dodgy sellers because, as South Australians, we do not welcome these kinds of businesses. With that, I commend this bill to the house.

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (12:20): I thank all the members of the parliament who have contributed to this very important piece of legislation, particularly my colleague, the Minister for Small and Family Business and Minister for Consumer and Business Affairs, with whom we are working in terms of the enforcement of this legislation through Consumer and Business Services, but also members on both sides.

This is important legislation to address the challenges that we are facing from a public health perspective, both in terms of tobacco and also the emerging threat in terms of vaping or e-cigarettes. These products obviously contain a huge amount of nicotine on the whole, and they are highly attractive to young people. We have seen a near doubling of the number of young people just in the space of one year in South Australia who are vaping, which is extremely concerning. Hence, the state government and the federal government are working together to take world-leading action in terms of stamping out vaping.

Obviously, there are a number of amendments that we have moved and also some amendments that the opposition have moved, which we will get to in the upcoming committee stage. I do want to address briefly the issue on which there was some thunderous opposition from the Liberal Party in the second reading debate in relation to controlled operations.

Controlled operations have taken place in South Australia for many years, they take place in other states of the country and have done for many years, and they have been taking place in other countries for many years, so to suddenly have this epiphany that these are somehow disastrous is staggering to me. Also staggering to me is what the alternative would be, that we should not undertake enforcement of not selling to minors, that we should be allowing that potential for legal action to happen without appropriate enforcement, or what the alternative in relation to that enforcement would be.

The truth is, a lot of this act came about following recommendations that were made in a review of the act from Dr Chris Reynolds, who is one of the foremost public health experts in South Australia. He recommended that we needed to strengthen the legislation in this area, and that is what we are seeking to do. The legislation drafting that we are proposing here is very, very similar to the legislation that has been in place for nearly two decades, I am advised, in Western Australia.

The idea that the opposition is putting the straw man argument around of nine or 10 year olds being part of controlled operations is just ridiculous. Having an eight year old myself, I do not think you would want to employ them as any part of government operations to begin with. Let alone that, clearly what has been in place here in South Australia and what has been in place in other states and around the world are operations where usually 16 or 17 year olds, working with government agencies, are identifying people who are breaking the law: people who are selling to minors a product that is highly addictive and highly harmful to their health.

I am disappointed that that does not have the support of the opposition. I hope that it has the support of the parliament, and I look forward to properly pursuing that in the committee stage because it does have the support of public health experts like Dr Chris Reynolds, it does have the support of public health experts at SAHMRI and it does have the support of other states and other countries around the world. I think the alternative of not allowing the authorities the ability to conduct those control operations means that we will have less ability, very minuscule ability, to be able to detect people who are selling to people under the age of 18, and I think that that is a significant policy problem.

I would like to thank everybody involved who helped to put this legislation together, particularly the teams in Preventive Health SA, the Department for Health and Wellbeing, and Consumer and Business Services who have all worked together collaboratively in relation to this bill. Specifically, I acknowledge Marina Bowshall, Dr Clinton Cenko, Narelle Pearks, Professor Nicola Spurrier, Dr Chris Lease, Anita Benovic, Naomi Burgess, Ashley Crawford, Emily Sims and Joe Labbozzetta for their work in the preparation of the bill. I acknowledge Dylan Anesbury in my office as well. I also thank public health organisations and associations including the Australian Medical Association, the Public Health Association of Australia, the Cancer Council and others for their support of the legislation.

This is important legislation. We want the parliament to support it to give us important new tools in the armoury in terms of protecting the health of the population and avoiding the dangers of what we can see as a long-term impact that we have had in terms of tobacco and an emerging impact in terms of vaping.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms PRATT: I want to thank everyone for their contributions to this point, in the house as well as—as the minister previously mentioned—key stakeholders and the department itself. The opposition has filed an amendment and does not have questions at clause 1. We will be moving our amendments at clause 39.

Clause passed.

Clauses 2 to 38 passed.

Clause 39.

Ms PRATT: I move:

Amendment No 1 [Pratt–1]—

Page 32, lines 19 and 20 [clause 39, inserted section 69B(1)]—Delete 'including a person' and substitute:

not being a person

Amendment No 2 [Pratt–1]—

Page 32, lines 38 to 41 [clause 39, inserted section 69C(2)]—Delete inserted subsection (2)

The opposition, in moving these amendments, has reflected on the intent and approach through second reading speeches. I thank the minister for addressing it in part. I think it will circumvent quite a lot of questions today and allow us to explore, with the minister and advisers, some key details that we consider are missing.

I reflect on some of the comments the minister just made, where he talked about controlled operations taking place over many, many years in this country and overseas. My reflection in listening to that was: have any of those controlled operations included the use of young people under the age of 18? The minister and the government need to accept that the opposition's view, with public contributions, is that the amendment bill, I would argue, does not go far enough in justifying or explaining exactly why this strategy is required. By the minister's own suggestion, the government is really only talking about young people aged 16 to 17, but that is not at all clear through this clause.

I think all the contributions today have reflected on our deep concern that young people have had access and are now influenced, and have serious health complications, by virtue of their use of e-cigarettes. We are all working together to achieve outcomes with this bill that start to crack down, limit the illicit trade and sales, improve the health opportunities for young people and create relief for parents who are very worried about them, but the interpretation of 69B, 'controlled purchase officer', lends itself to the suggestions that were made in earnest during my second reading speech about who, how many, how they would be recruited, what is the intent and what is the protective mechanism that would support a 16 or 17-year-old person in this way, and for the minister to use the word 'clearly' is as obtuse as this clause, because it is not clear and I think that it should be.

I ask now of the minister, in relation to the clause we are seeking to amend: can the minister explain further the justification of a 16 or 17 year old being employed as a controlled purchase officer and what is the mechanism that sits behind that recruitment?

The ACTING CHAIR (Mr Brown): Minister, I might also point out to you that you do need to formally move your amendments to this clause at some stage. You do not have to do it now, but you need to do it at some stage.

The Hon. C.J. PICTON: This is their amendment.

The ACTING CHAIR (Mr Brown): Yes, but, as I say, you will need to move your own at some stage too.

The Hon. C.J. PICTON: Yes, but we only deal with one amendment at a time.

The ACTING CHAIR (Mr Brown): Not necessarily. I am not saying you need to, I am just reminding you. Go ahead.

The Hon. C.J. PICTON: Between confusion in relation to moving multiple amendments at the same time, and also grappling with being labelled as 'obtuse' by the member for Frome, I am struggling to contain myself.

I reiterate what I said in terms of the second reading speech. I am surprised that this has become such a focal point, because this does not have the same level of controversy in other states or around the world or even here when this happened in South Australia previously. As I said, the originating element of this was the review done by Professor Christopher Reynolds, who recommended that this needed to be updated in the legislation. That then went out for public consultation as part of our consultation we did on the bill. I can refer to what was in our report following the consultation that took place:

3 Controlled Purchase Operations.

This is a long-standing issue, and though controversial (often loosely—and wrongly—described as 'entrapment') it is an important way in which compliance can be measured and s38A can be enforced, since an underage sale rarely prompts a complaint which makes conventional policing difficult. The 2019 Review of the Tobacco Products Regulation Act recommended the introduction of provisions to regulate and allow controlled purchase operations, providing the necessary safeguards that the community would expect were in place. There were few comments on this proposal, though one respondent supported it, and it is consistent with the many responses calling for better enforcement, since controlled purchase operations offer a way of achieving this.

Controlled purchase provisions exist elsewhere in Australia; in ss 94-97 of the Tobacco Products Control Act 2006 (WA) and also in Part 6A (Compliance Testing) of the Tobacco and Other Smoking Products Act 1927 (ACT). These could provide a model for the drafter to consider when amending the SA Act.

That is exactly what happened. We did use the Western Australian act as assistance in terms of the drafting of what we have proposed in terms of what forms now clause 39 in relation to this legislation.

Not allowing minors to participate in these operations would very significantly impact on the ability to enforce the law relating to the sales to minors. In effect, if retailers are selling tobacco, e-cigarettes or other prohibited products, such as a nicotine pouch to a minor, it would be very difficult to enforce that law without a chain of evidence. The participation of minors in the controlled purchase operations enables a collection of a chain of evidence that is crucial to a successful prosecution for expiation.

The research tells us that the younger a person starts smoking the more likely they will become a heavier, more dependent smoker. To prevent more young people from taking up smoking, it is vital to have a compliance operation protocol for enforcing the law around selling to minors. These operations are a useful part of the armoury of tools available to enforcement.

These operations have been available to our enforcement teams since the early 2000s and have been safely and effectively utilised by all interstate jurisdictions, with the exception of Queensland. It is an approach utilised in overseas jurisdictions. Both Western Australia and Tasmania have controlled purchase operations embedded into their acts, and the wording of the clause in this bill is very similar to Western Australia.

Consumer and Business Services will be further developing the procedures for these operations in accordance with best practice procedure manuals developed in other states. Any minor involved will be closely supervised and supported by an authorised officer and they will be entering the standard retail shops, such as newsagents, supermarkets, service stations and other retail shops—locations which young people routinely frequent.

Authorised officers would conduct a risk assessment for each store they attend before a minor enters. The minor will appear in every way to be a standard customer and, therefore, there is no reason to believe that the vendor will treat the purchaser different to any other customer who enters the store, including other young people. Minors will also be completely honest with vendors if asked a question about their age.

When a controlled purchase officer conducts their duties in line with a valid notice of authorisation, they are protected from legal repercussions under this act and any other relevant laws. The protection extends not only to the officer themselves but also the authorised officers, the minister and anyone else engaged in the operation, including the participating minors.

No-one involved will be deemed to have committed an offence or held liable for the actions of others during the operation. As I said, controlled purchase operations have been included in this bill according to the recommendations from public health expert Dr Chris Reynolds, who reviewed the legislation. I understand that review was actually under the previous government. He concluded the best approach is to amend the act in order to provide a formal structure for the controlled purchase operations that will both authorise them in legislation and spell out the safeguards.

This is something that has happened in South Australia, but without this safeguard in terms of legislation. It has happened in other states, including a number that have legislation very similar to what we are seeking to do. It is a purchase that would happen in the same way as somebody going into a newsagent or a supermarket or a petrol station.

But if we do not do this, if we say we are not going to allow this sort of enforcement to happen, then it is almost impossible to imagine the circumstance in which we would be able to enforce the legislation around selling to somebody under the age of 18. Who is going to complain about it? The person under the age of 18 buying cigarettes is not going to ring Consumer and Business Services and complain about it, the vendor who has broken the law is not going to complain about it. Unless we have people stationed in every supermarket, in every convenience store and every newsagent 24 hours a day and then checking people's IDs after they have been sold, there is just no way of enforcing that.

This is necessary. It is safe and effective, and it is important for the enforcement of these important public health provisions. Therefore, the government will be opposing these amendments.

The committee divided on the amendments:

Ayes 12

Noes 24

Majority 12

AYES

NOES

PAIRS

Amendments thus negatived.

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

Amendment No 1 [HealthWellbeing–1]—

Page 32, after line 41—Insert:

Part 6AA—Closure orders

69CA—Interpretation

In this Part—

closure order means—

(a) an interim closure order; or

(b) a long term closure order;

interim closure order—see section 69CB;

long term closure order—see section 69CC;

mobile premises means premises constituting a vehicle, building or other structure ordinarily moved from place to place;

prescribed product means—

(a) a prescribed tobacco product within the meaning of section 33(2); or

(b) a prohibited product.

69CB—Interim closure order

(1) The Minister may, by notice in writing, order that specified premises be closed (an interim closure order) if the Minister reasonably suspects that—

(a) prescribed products are being, or are likely to be, sold or supplied at the premises as part of a business being carried on at the premises; or

(b) tobacco products or e-cigarette products are being, or are likely to be, unlawfully sold or supplied at the premises as part of a business being carried on at the premises.

(2) The Minister may, by notice in writing, revoke an interim closure order.

(3) A notice under this section must be—

(a) given to the person apparently in charge of the premises (if any); or

(b) posted in a conspicuous place—

(i) in the case of premises other than mobile premises—at the entrance to the premises; or

(ii) in the case of mobile premises—

(A) on the mobile premises; or

(B) at the entrance to premises that are connected to the business carried on from the mobile premises.

(4) The interim closure order has effect from the time specified in the order until—

(a) 72 hours after the time specified in the order; or

(b) the order is revoked by the Minister,

whichever is the earlier.

(5) No more than 1 interim closure order may be made for the same premises in a period of 7 days.

69CC—Long term closure order

(1) A Magistrate may, on the application of the Minister, order that specified premises be closed for a specified period of not more than 6 months (a long term closure order) if the Magistrate is satisfied that—

(a) prescribed products have been, or are likely to be, sold or supplied at the premises as part of a business activity; or

(b) tobacco products or e-cigarette products have been, or are likely to be, unlawfully sold or supplied at the premises as part of a business activity.

(2) An application may be made regardless of whether an interim closure order is, or has been, in effect in relation to the premises under section 69CB.

(3) An application under subsection (1) must be given to the owner of the premises, unless it is not reasonably practicable to do so.

(4) An order made under this section must be—

(a) given to the owner of the premises, unless it is not reasonably practicable to do so; and

(b) posted in a conspicuous place—

(i) in the case of premises other than mobile premises—at the entrance to the premises; or

(ii) in the case of mobile premises—

(A) on the mobile premises; or

(B) at the entrance to premises that are connected to the business carried on at the mobile premises.

69CD—Tobacco or e-cigarette products not to be sold or supplied at closed premises

A person must not, while a closure order is in effect in relation to premises—

(a) sell or supply tobacco products, e-cigarette products or prohibited products at the premises; or

(b) carry on a business of selling tobacco products, e-cigarette products or prohibited products at the premises.

Maximum penalty:

(a) in the case of a body corporate—

(i) for a first offence—$750,000;

(ii) for a second or subsequent offence—$1,100,000;

(b) in the case of an individual—

(i) for a first offence—$350,000;

(ii) for a second or subsequent offence—$700,000.

Expiation fee:

(a) in the case of a body corporate—$20,000;

(b) in the case of an individual—$5,000.

Amendment No 2 [HealthWellbeing–1]—

Page 36, line 11 [clause 39, inserted section 69I(1)]—After 'Part 2' insert ', Part 6AA'

Amendments carried; clause as amended passed.

Clauses 40 and 41 passed.

Clause 42.

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

Amendment No 3 [HealthWellbeing–1]—

Page 37, lines 15 and 16 [clause 42, inserted section 73(2)(c)]—Delete paragraph (c)

Amendment carried; clause as amended passed.

Remaining clauses (43 to 53), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (12:47): I move:

That this bill be now read a third time.

Bill read a third time and passed.