Bills

Tobacco Products Regulation (E-Cigarettes and Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 October 2018.)

The Hon. S.G. WADE (Minister for Health and Wellbeing) (11:02): I thank honourable members for their contributions to the second reading debate. This bill is being introduced by the government to address the lack of regulation of e-cigarettes in South Australia. The bill aligns with the recommendations of the Select Committee on E-Cigarettes and the positions of leading public health bodies, including the National Health and Medical Research Council, on the need for governments to act to regulate e-cigarettes. It will also bring the e-cigarette legislation in South Australia in line with interstate legislation.

The fact that South Australia is the last state in Australia to regulate e-cigarettes is a stark demonstration of the former Labor government's low priority on public health. Even after receiving a bipartisan select committee report in February 2016, they left office two years later without legislating in this area. The bill also introduces a range of administrative enhancements to ensure that the legislation is up to date and to improve the functioning of the legislation.

These amendments emanate from an independent review of South Australian tobacco control legislation that was completed in 2017. The review was commissioned by SA Health and conducted by Dr Chris Reynolds, an expert in public health legislation in South Australia. These administrative changes are important to ensure that South Australia's tobacco legislation continues to be a key mechanism for reducing the harms of tobacco use in our community.

It is pleasing to note that rates of tobacco use among the entire population, including young people, have fallen in recent decades. In 2007, 23 per cent of people aged 15 to 29 were current smokers. By 2017, 10 years later, that figure had reduced to 14.7 per cent. These reductions have come as a result of public health measures aimed at reducing smoking, including the establishment of more smoke-free areas, bans on tobacco advertising and excise tax increases for tobacco products.

To ensure that we continue this downward trend, we are undertaking legislative reform as a key part of the government's approach to improving the health of the community. The sale, advertising and promotion of e-cigarettes has the potential to undermine the gains we have made in this area by creating a gateway for young people to develop nicotine dependence and progress to tobacco smoking. The South Australian government is not prepared to leave the door open to that possibility.

This bill establishes a regulatory regime for e-cigarettes that aligns with the way that tobacco products are regulated. It also balances adult access to these products with the protection of public health, including safeguarding our young people. These safeguards include bans on selling e-cigarettes to minors, bans on the sale of e-cigarettes from vending machines and temporary stalls and advertising bans on e-cigarettes, including the removal of retail displays of e-cigarettes. It will also protect people from exposure to e-cigarette vapour in smoke-free areas.

The changes in the bill will be communicated to South Australian e-cigarette retailers and peak bodies, as well as to existing tobacco licence holders. Information will also be made available on the SA Health website to explain the new requirements. Recognising that e-cigarette retailers will be required to make changes to their business operations, a six-month transition period will be provided for retail displays and the ban on internet sales. This will assist with compliance and is also consistent with previous legislative changes for tobacco retail regulations.

Under this bill, shisha tobacco has been included in the definition of a tobacco product. Shisha tobacco is smoked through a water pipe and usually contains tobacco sweetened with fruit or molasses sugar, giving it a fruity aroma. The Tobacco Products Regulation Act 1997 already incorporates shisha under the definition of tobacco product in the act. Consequently, offences relating to tobacco products, such as smoking in a smoke-free area or selling tobacco to minors, also extend to shisha products.

The government is including a specific definition for shisha tobacco to make it clear to those businesses involved in the sale or use of shisha that the tobacco legislation does extend to these products. Clear legislative protections against the sale of shisha to minors and the use of shisha in smoke-free areas support both compliance and enforcement.

The Hon. Connie Bonaros, in her second reading speech, asked about health promotion in relation to shisha. In 2018, SA Health communicated information to the public through social media on the harms associated with the use of shisha products and the passive inhaling of shisha smoke. The information on shisha products was posted for four weeks, and monitoring data shows that it was an engaging way to communicate this information to the public. Given the success of their social media initiative, the government is considering another phase of social media activity on this topic in the near future.

Currently, the bill includes new penalty levels that have been adjusted according to CPI, as an administrative change to ensure that the penalties are aligned to the cost of living. Again, the former Labor government made no changes to these penalties in 16 years, undermining their impact. The government made it clear in the second reading that it is doing a full policy reassessment of penalty levels in consultation with the public. These issues require consideration of a range of factors to determine the appropriate levels, including the seriousness of the offence, the deterrent value of the penalty, as well as levels for similar offences in South Australia and interstate.

One cannot assume that the penalties in the tobacco legislation in South Australia automatically should apply to the tobacco legislation. If liquor is sold or supplied to a minor on a licensed premises, the maximum penalty for the licensee for the first offence is $20,000 and for a second or subsequent offence is $40,000. This applies to the licensee, the corporation and the responsible person. In any other case, it is $5,000. The expiation fee is $1,200.

However, the alcohol legislation has a different regulatory framework, including restrictions on the age of the vendor and which areas within licensed areas a minor can enter. This is a very different regulatory framework to tobacco, which is sold from a range of venues, including supermarkets, service stations and delicatessens. In early 2019, the government will consult publicly on penalty levels across the legislation so that all these factors can be considered to ensure the penalties are an appropriate deterrent.

In respect to questions from honourable members regarding the issue of expiation notices and fines over the past five years, I propose to provide information on the penalty provisions during the committee stage.

In relation to section 38A(1), the sale and supply of tobacco products to children, SA Health enforcement officers conduct controlled purchase operations to test tobacco retailers' compliance with sales to minors. In the last five years, 19 expiations were issued for the sale of tobacco products to minors. In the past two financial years, between July 2016 and June 2018, seven expiations were issued, and since July 2018 there has been one expiation issued for this offence.

I turn now to the recommendations of the select committee. Recommendation 3 of the select committee final report recommended the prohibition of the sale of e-cigarette peripherals that may specifically appeal to minors, such as sweet and confectionery-flavoured e-liquids. The Hon. Connie Bonaros raised this issue during the second reading stage. The government supports the aim of the select committee's recommendations to reduce the appeal of these products to children, including flavoured products. We have received advice that this is best addressed at the national level. My department has discussed with the commonwealth government the recommendations from the report that have implications or are best addressed at the national level. We will also be raising this particular matter further with the commonwealth government in appropriate national fora.

The government also supports recommendations 17 to 19 of the select committee's final report which relate to research on the harms of e-cigarette products and falls principally within the remit of the commonwealth government. The issue of e-cigarette research to strengthen evidence in this area continues to be the subject of discussion with the commonwealth. The National Health and Medical Research Council funding of 10 grants committing over $8.5 million for research into e-cigarette's since 2011 reflects the commitment of the commonwealth government and research bodies to grow the body of research available to inform e-cigarette policy.

Honourable members sought an update on the government's progress towards achieving a smoke-free prison system. I am pleased to advise the council that the Adelaide Women's Prison will be smoke-free by 28 February 2019. The transition to a smoke-free environment forms part of a rolling program of smoking bans which will occur across the South Australian prison system commencing in 2019. A timetable is currently being worked through to achieve full implementation by 2020.

Tobacco smoking is the leading cause of preventable disease and death in Australia, and in the lead-up to the 2018 election the government made a commitment to eliminate staff and prisoner exposure to environmental tobacco smoke. There is a strong focus on ensuring that adequate support is put in place to help prisoners and staff to quit smoking, including counselling and nicotine replacement therapy. That is why the Marshall Liberal government has committed $6.2 million over the next four years in the 2018-19 state budget to provide counselling support and nicotine therapies to assist with the transition. We will be drawing on the experience at the Remand Centre to ensure that the process is implemented in a structured and planned way with minimal risk.

I would like to take this opportunity to thank parliamentary counsel and the staff of Drug and Alcohol Services South Australia for their assistance with this bill. I would also like to thank the members of the Select Committee on E-Cigarettes for their work in examining potential legislative and regulatory controls that could be applied to e-cigarettes. It is important that we continue to protect the community from the harms of smoking, and I thank all honourable members who have supported this significant initiative and facilitated its passage through this council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I was not sure that I was going to raise some of these issues, but seeing the minister saw fit in his second reading speech to make political points about the urgency and speed at which this had moved, I think I will ask a couple of questions. Did the minister receive correspondence from the shadow health minister, the member for Kaurna, seeking an update as to the status of whether this bill would be reintroduced?

The Hon. S.G. WADE: I think it is a bit cute of the Leader of the Opposition to take offence at my political comments. They were brief and to the point and less expansive than his own. I would make the point that the former Labor government put us in the situation where we are the last state in Australia to be legislating in this area, so it does not seem to me a great focus on e-cigarette legislation.

The government received a bipartisan select committee report in February 2016 and yet did not take legislative action such that the bill was passed by the time it was voted out of office in March. The fact that the Labor opposition wants to try to camouflage their embarrassment at their lack of action over 16 years by putting into the new parliament legislation they could not be bothered giving priority to in the previous parliament is a matter for them.

The Hon. K.J. MAHER: My question was: did the minister receive correspondence from the member for Kaurna, the shadow health minister, and why did the minister not reply to that correspondence?

The Hon. S.G. WADE: I will take that on notice. My recollection is that there was correspondence.

The Hon. K.J. MAHER: Is it the minister's recollection that he opted to not provide any sort of response whatsoever to that correspondence?

The Hon. S.G. WADE: I would have thought the Leader of the Opposition would not want to continue this point. I would like him to address why his former government failed to address this area such that we are the last state in Australia—the last state—to be legislating in this area.

The Hon. K.J. MAHER: Can the minister confirm that the bill that is currently before the chamber is substantially similar to the private members' bill that the member for Kaurna introduced out of frustration at not receiving any response whatsoever from the health minister?

The Hon. S.G. WADE: I can confirm that South Australia is the last jurisdiction in Australia to deal with e-cigarette legislation. I can confirm that the former government, by the time it was voted out in March this year, had wasted two years following a select committee report, and we are only now addressing this matter. I can assure you that I have no embarrassment that the former Labor government muddled in this area for 16 years and we have this legislation at this point seven months into our term.

The Hon. K.J. MAHER: In opposition now, the Labor opposition introduced a private members' bill that has effectively been copied by the government. If this was such a priority, as the health minister now says, in his time in opposition why did he sit on his hands and do nothing about it?

The Hon. S.G. WADE: I dispute the fact that this is a photocopy of the former government's bill. It deals with a range of matters, including shisha and the recommendations of the Reynolds review.

The Hon. K.J. MAHER: The minister has mentioned the Reynolds review. Does this bill include the recommendations of the Reynolds review?

The Hon. S.G. WADE: I refer the honourable member to my second reading explanation, which made it clear that it only deals with part of the Reynolds review recommendations. That is because this government believes in the value of consultation. There are a number of recommendations in the Reynolds review that, in our view, do require consultation. That is what we have committed to. I made a public statement, I think, in the last month or two that the remaining Reynolds review recommendations have already commenced with targeted consultation. The more public formal consultation will take place in early 2019.

The Hon. K.J. MAHER: On that and the number of recommendations from the Reynolds review and the consultation, perhaps the minister can explain some of the recommendations of the Reynolds review that they have failed to take up; firstly, significantly increasing the penalty for the sale or supply of tobacco products to children. Why was that not included in this bill? Who is the consultation occurring with on that particular aspect of the Reynolds review?

The Hon. S.G. WADE: I will need to consult the record, but I would turn the question back on the Leader of the Opposition. Considering the Reynolds review was released in early 2017, and my understanding is the then government's e-cigarettes bill was tabled later in 2017, why didn't you?

The Hon. K.J. MAHER: I thank the minister for a statement rather than a question to me.

The Hon. S.G. WADE: It is an answer, actually.

The Hon. K.J. MAHER: It is an awfully strange thing, when he is in government now. In terms of the Reynolds review, the minister previously said they have elected not to proceed with some of the recommendations because they wanted to do further consultation on specific recommendations. Who is the minister intending to consult with on the recommendation of the review to suspend or cancel a retailer's licence on being found guilty of the sale or supply of tobacco products to children?

The Hon. S.G. WADE: As I indicated earlier, the government has continued to have a two-stage consultation for, shall we say, the next tobacco products bill. The stage 1 consultation will focus on industry and health organisations, and the second stage will be a public consultation, including a communication strategy through SA Health.

The Hon. K.J. MAHER: I thank the minister for his answer. What industry and what health organisations does the minister speak of?

The Hon. S.G. WADE: My expectation is that the health organisations would include the Cancer Council, the Heart Foundation, SAHMRI, and the like. My expectation in relation to industry would include groups such as Business SA, the Restaurant and Catering Industry Association of SA, Clubs SA, the Australian Retailers Association, and the like.

The Hon. K.J. MAHER: In terms of the Reynolds recommendation to involve SAPOL more directly in the enforcement of the act, which of those groups needs consultation to implement that part?

The Hon. S.G. WADE: In terms of that part of the legislation, we would be particularly keen to talk to the Local Government Association, which is part of the enforcement framework.

The Hon. K.J. MAHER: Is the minister a little embarrassed that he has brought in a bill which it seems has only been half consulted on and requires a whole lot more work?

The Hon. S.G. WADE: I do not know whether the shadow minister wants to take the next two hours continuing political bickering.

The Hon. K.J. Maher interjecting:

The Hon. S.G. WADE: I would remind the honourable member that he started it. In his second reading contribution he engaged in politics. I needed to correct the record, which I did. I would remind the honourable member that the previous government progressed legislation after the Reynolds review had been released. They did not consult on the Reynolds review and incorporate it in the bill. We are going to do it diligently.

We did not want to leave the South Australian community without e-cigarettes regulation while a full consultation process was undertaken. Some straightforward elements of the Reynolds review that did not require consultation, in our view, were incorporated into this bill that is now before the council. There are other matters that we believe would benefit from consultation, and they are the ones that we are taking to this two-stage approach.

I think it is again somewhat hypocritical of the Leader of the Opposition to criticise the government for consulting, considering that yesterday in question time he was criticising the honourable Minister for Human Services on exactly that point.

The CHAIR: The Hon. Ms Bonaros. A new topic?

The Hon. C. BONAROS: Yes.

The Hon. S.G. Wade interjecting:

The Hon. C. BONAROS: No, I will focus on my own line of questioning, thank you. I will start by firstly thanking the minister for providing detailed responses to many of the questions that we have put on notice. In relation to one of those questions, though, I know that you did cover it off, but I did miss a little bit of that explanation. In relation to the penalty provisions listed on pages 14 and 15 of the bill, can you run through again how many expiation notices and fines have been issued in relation to any of the penalty provisions over the past five years, two years and 12 months, please?

The Hon. S.G. WADE: If I may, I will both quote what was in my summing-up and also provide some additional information. In my summing-up, I mentioned that in the last five years, 19 expiations have been issued for the sale of tobacco products to minors. In the past two years, between July 2016 and June 2018, seven expiations were issued, and since July 2018 there has been one expiation issued for this offence.

Moving now to more broadly: over the last five years, that is 2013-2018, SA Health has issued 43 expiation notices. There were 18 for section 38A(1), which is sales to minors. There is a one-person discrepancy there because that includes one in the last six months. The figures I am giving you now are financial years, and the previous ones were since that time.

Returning to the last five financial years' data, there have been eight expiations for section 6, one expiation for section 30(4), one expiation for section 38A(5), one expiation for section 40(1), one expiation for section 46(2), 12 expiations for section 46(3) and one expiation for section 46(4).

Then we turn the page and we find that over the past two financial years, 2016-17 and 2017-18, the following expiations were issued: seven expiations for section 38A(1), four expiations for section 6, one expiation for section 30(4), one expiation for section 46(2) and four expiations for section 46(3).

Over the past financial year, 2017-18, the following expiations were issued: seven expiations for section 38A(1), three expiations for section 6 and four expiations for section 46(3). In addition to the enforcement activities of SA Health, South Australia Police has issued the following expiations for section 48(1): in 2015-16, 66; 2016-17, 60; 2017-18, 60.

The Hon. C. BONAROS: Thank you for that extensive answer. In relation to the comments that you made regarding the campaign by the government in relation to e-cigarettes and shisha, you said there was an advertising campaign around shisha smoking in particular, that it was the government's intention to have a further such campaign. Is that likely to include any policies and procedures aimed at protecting staff and passers-by? As we know, there are a number of these outlets in Hindley Street; you walk past, and there are people smoking water pipes at the tables. Given that these things have the same effect as smoking between one to 200 cigarettes, I would have thought, then, that it would be appropriate for any such campaign to include potential dangers to passers-by in terms of passive smoking.

The Hon. S.G. WADE: I thank the honourable member for her question. Shisha smoking is banned from use in outdoor dining areas, and all of the restrictions on the use of shisha in smoke-free areas are the same as the restrictions on the smoking of other tobacco products. Additionally, by including the definition of shisha explicitly in the bill, a clear message will be sent to business proprietors and the public that shisha is harmful and is restricted in smoke-free areas; the point being that even the legislation itself is educative.

In June 2018, SA Health communicated information to the public about the harms associated with the use of shisha and the passive inhaling of shisha smoke. This occurred as part of SA Health's social media activities. Information on shisha products was promoted for four weeks, and monitoring data shows that it was an engaging way to communicate this information to the public. Given the success of this social media initiative, the government is currently considering another phase of social media activity on this topic in the near future.

I thank the honourable member for bringing to the attention of the government the initiative in New South Wales. I think it was in relation to the southern Sydney area. We will certainly be looking at that and other initiatives that might be underway in Australia and overseas. I think it is also fair to make the point that even our enforcement activities have an educative function. Health-authorised officers, police, local government officers, as they talk to businesses, customers, smokers and bystanders, will also make people aware of the health risks. The government certainly agrees with the honourable member that, whether it is tobacco products or e-cigarettes, we need to continue to reinforce the health risks of these products.

The Hon. C. BONAROS: Moving on to the issue of flavoured e-liquids, the minister in his second reading summing-up indicated that this might be a matter that is better dealt with at the national level. I am trying to confirm how it was that we were able to deal with flavoured cigarettes at a state level but we are saying that this is best dealt with at the federal level.

The Hon. S.G. WADE: I thank the honourable member for her question. It is one that I asked the officers earlier so they were on notice from both of us. The advice I am given is that, in relation to these cigarettes, the regulation of flavoured cigarettes was done on a state-by-state basis, each state acting on their own. In the context of e-cigarettes, the Crown Law advice is that it would be more legally robust if states were to act cooperatively at the national level. I make the observation that, whilst we are the last state to regulate this area, there is one more jurisdiction which is yet to legislate, that being the Northern Territory.

To be honest with you, I have not checked whether the Northern Territory is intending to legislate in this area but, if you like, we almost have a national network of state-based legislation. It is my intention that through the fora that I have access to such as—I might get the names wrong but I give you the idea—the Ministerial Drug and Alcohol Forum, the food standards authority and the COAG Health Council are all fora that I believe are interested in tobacco and e-cigarette legislation. But also at my officer level, SA Health has already had discussions with the commonwealth department about regulation in this area, so the government strongly supports the need to include flavoured e-cigarettes in a nationally consistent and complementary framework.

The Hon. C. BONAROS: Can I take it from that response then that, if the federal government does not move in that direction, there will be further consideration or a commitment at least from this government to move in that direction in isolation?

The Hon. S.G. WADE: I thank the honourable member for the question. Let me just make it clear: I was not suggesting that we were going to have national commonwealth legislation. It is a bit like the APRA legislation where you have complementary state legislation and regulation. I am sure this parliament would want to see the governments of Australia moving on this sooner rather than later. I suppose the point that I would make is that the advice that we are being given from Crown Law is that it is a better, more robust system, but if it is not something that the jurisdictions move on, I would not be surprised if parliaments say, 'Well, we'll go for a less robust regime in the meantime.' But, it is certainly our preference, if you like, now that we are almost closing the loop, to make sure that we have a robust national scheme.

The Hon. C. BONAROS: I take it from that response also then that we would be open to considering not only the flavoured e-cigarettes but also the animated ones? There are characters that come with these things, so they are specifically designed to attract minors. I think you can get on with diamantes and animated characters and the like, so I take it from that response they would be included in that class.

The Hon. S.G. WADE: The honourable member's question was educative. I now know that we can have Disney e-cigarette containers. Yes, it would be our intention to regulate those elements as well. We need to do whatever we can to discourage both tobacco and e-cigarette use by minors.

The Hon. C. BONAROS: Can I move on to the implementation of this legislation and perhaps point out to the minister that overnight I received several messages from people who are not disgruntled members of the public in relation to the move by this parliament to legislate in this space. One thing I have said to people who have contacted me is that it is extremely important that we work with those who are in this retail space, because their business model is effectively going to be dismantled overnight and they are going to be subject to a licensing regime and a regulated industry.

What consultation has occurred with those retailers, and how much time are we actually intending to give them to come up to speed with the legislation, given especially that they are not going to be able to have these items available for display any longer in their stores? They are going to have to meet the signage requirements and whatnot. Also, what is the commencement period for this legislation?

The Hon. S.G. WADE: I thank the honourable member for her question and through you, Mr Chair, I will answer it but also take your counsel and avoid distractions that might be political. I will just make the point that the Select Committee on E-Cigarettes tabled its report in February 2016, so I think it is reasonable for this parliament to say that retailers have been on notice for 2½ years that that is the intention of this parliament.

In terms of the passage of this particular piece of legislation, let me advise that recognising that e-cigarette retailers will be required to make changes to their business operations, a six-month transition period is proposed for retail displays and the ban on internet sales. This will assist with compliance and is also consistent with previous legislative changes for tobacco retail regulations.

The introduction date for the new bill, once enacted, will depend on when the bill is passed, but given the strong support of the parliament, evidenced in the discussion in this parliament, I do not expect it to be delayed. However, it is likely the new legislation will come into operation in the first quarter of 2019, and the retail display and online sales requirements will come in six months after that.

The Hon. C. BONAROS: Can I take it from that response then that retailers will have access to a grace period from any penalties in that six-month period?

The Hon. S.G. WADE: Yes, no enforcement penalties will be applied during that period.

The Hon. C. BONAROS: And in that time what has the government arranged in terms of actually working with that industry to ensure that they are up to speed—and I know what you have just said in relation to the committee, but I suppose it is a little bit different when there is a regulatory framework they know they now have to comply with. So what are we doing in terms of communicating with those retailers to ensure that they know what the new rules will be?

The Hon. S.G. WADE: I thank the honourable member for the question. The regulatory changes will be communicated to South Australian e-cigarette retailers and peak bodies with a mail-out informing these retailers of the new laws and how to comply with them. Additionally, a mail-out to existing tobacco licence holders will occur to provide information on the new regulations relevant to their operations. Information will also be available on the SA Health website to explain the new requirements. We as a government will be keen to engage industry and retailers to make sure the transition is as smooth as it can be, consistent with the clear intent of this parliament.

The Hon. C. BONAROS: I am not sure if the minster has perhaps touched on this already, but in relation to the recommendations of the select committee that I have referred to and the research on e-cigarettes, has the government done anything to progress those recommendations? This is recommendations 17 to 19 of the select committee's final report.

The Hon. S.G. WADE: If I could reaffirm the statements I made in my second reading summing-up, the government supports recommendations 17 to 19 of the select committee's final report, which relate to research on the harms of e-cigarette products. Medical research principally falls within the remit of the commonwealth government, and the issue of e-cigarette research to strengthen evidence in this area continues to be the subject of discussion between SA Health and the commonwealth. The National Health and Medical Research Council has funded 10 grants since 2011, committing over $8.5 million for research into e-cigarettes. Research funding bodies continue to grow the body of research available to inform e-cigarette policy.

The Hon. C. BONAROS: I have one final question. In relation to the dangers of smoking, we know that smoking kills and that 50 per cent of smokers have an increased risk of being killed by smoking. In particular, we have statistics for people in the 15 to 29 age bracket who are smoking. The number for them is up to 14.3 per cent, higher than the previous year, which was 12.3 per cent. What is the government going to do to combat the increase in smoking, particularly amongst our young people?

The Hon. S.G. WADE: I thank the honourable member for her question. Suffering from chronic optimism, I would like to preface my remarks by saying that I think it is important for us to celebrate long-term progress. The fact that we have made progress over a considerable amount of time—governments of both flavours supported by crossbenchers of many colours—should encourage us to continue to be vigilant in strengthening the regime over time. In that context, let me affirm that there have been long-term declines in smoking prevalence in South Australia. This has been a result of consistent public health messages aimed at reducing smoking.

The government has noted the result of the 2017 survey for monitoring smoking prevalence in South Australia, which indicates that, amongst those aged 15 to 29, smoking prevalence was statistically similar to 2016 but did show an increase. We need to monitor it to see whether this is a long-term trend. In the meantime, we will continue to make sure that our communication and education programs are as robust as they can be. To ensure that we continue a downward trend, we are undertaking legislative reform as part of the government's approach to improving the health of the community. Obviously, this legislation is part of that.

The Hon. K.J. MAHER: The honourable member mentioned that health organisations and industry groups would be part of the targeted consultation. Will tobacco companies be consulted?

The Hon. S.G. WADE: The government has no intention of consulting tobacco companies as part of the consultation.

The Hon. K.J. MAHER: Have tobacco companies made any representations to the minister or to the Liberal Party in relation to tobacco reform?

The Hon. S.G. WADE: The Liberal Party can speak for itself, but I would be surprised if tobacco companies had not made representations. I have met with representatives of the vaping industry, but I will take on notice whether there have been any representations.

The Hon. K.J. MAHER: Has the South Australian branch of the Liberal Party accepted donations from any tobacco companies?

The Hon. S.G. WADE: I do not think that I am responsible for the Liberal Party of Australia (South Australian Division), and I do not have any awareness of their relationships in that regard.

The Hon. K.J. MAHER: Will the minister take that question on notice and bring back a reply, please?

The Hon. S.G. WADE: As I have said, Mr Chair, I am not responsible for the Liberal Party of Australia.

The Hon. K.J. MAHER: I will ask once again. The minister has said that he would be very surprised if there was not consultation with representatives of the tobacco industry in relation to this. This goes to a pretty fundamental area of how we operate and the influences that occur in politics. Will the minister take on notice the question as to whether the South Australian branch of the Liberal Party has accepted donations from tobacco companies?

The Hon. S.G. WADE: The honourable member is conflating answers I gave. I said I would take on notice representations to me as the Minister for Health and Wellbeing. For that matter, I am happy to broaden that to include the department. I certainly am accountable for what representations the government has received from tobacco companies. I am happy to take that on notice, but if the honourable member has questions for the Liberal Party of Australia, I suggest that he makes those inquiries of them.

The Hon. K.J. MAHER: I have a final question on this area, Mr Chairman. Just to be very clear, the minister is saying that he will refuse to make inquiries as to whether his party has accepted donations from the industry which he is seeking to regulate. Is that what he is saying?

The Hon. S.G. WADE: I thank the honourable member for giving me the opportunity to laud—

Members interjecting:

The CHAIR: Order! I cannot hear the minister.

The Hon. S.G. WADE: —Robert Menzies. One of Robert Menzies' key principles in the establishment of the Liberal Party of Australia was that there would be a clear separation between the parliamentary party and the organisational wing. In our view, that is a 1940s or 1950s early initiative to address the need for probity in public policy.

The Hon. K.J. Maher: I bet this makes tomorrow's papers, your refusal to say that—

The Hon. S.G. WADE: I do not know.

The CHAIR: This is not a conversation. This is a question and answer forum in committee.

The Hon. K.J. Maher interjecting:

The CHAIR: Order, Leader of the Opposition!

The Hon. C. BONAROS: I ask a question in relation to enforcement issues. Again, I am not sure if the minister has touched on this previously, but does the government intend to increase the number of officers available? What does it intend to do to ensure that there is effective compliance and enforcement in this space?

The Hon. S.G. WADE: I thank the honourable member for her question. I understand the Reynolds review highlights that there are 1.5 FTE public servants dedicated to tobacco enforcement. Adding to that, I am advised that there are 14 officers who have the capacity to support. In other words, they have the legal authority. I stress that compliance and enforcement is a shared responsibility. I am thinking of recent public concerns raised about a hotel in the CBD that was drawn to the attention of the public because they were promoting what was a durry. I had to find out what a durry was but apparently it is a cigarette.

I think it was actually a non-government organisation that first highlighted in the public domain that the legislation was being breached. The advice that was provided to me was that both police and SA Health were very quick to educate the business about the requirements of the legislation, and on my understanding a breach did not occur on that occasion.

Clause passed.

Clause 2.

The Hon. K.J. MAHER: I know this matter was briefly traversed in clause 1 when the Hon. Connie Bonaros asked about how the act will come into force but, for clarity, can the minister indicate the exact date that this new regulation will come into force and the stepped-out time frame for the implementation?

The Hon. S.G. WADE: I thank the honourable member for his question. It is hoped that the legislation will be proclaimed as soon as possible. The rate limiting factor is likely to be the communication program: communication with the sectors that are going to be affected, and also the drafting of the regulations. It is our expectation that enforcement will start in the first quarter, allowing for the fact that the transition elements will require another six months.

Clause passed.

Clauses 3 to 6 passed.

Clause 7.

The Hon. K.J. MAHER: At the briefings on this bill, it was suggested that shisha products have always fallen under the definition of tobacco products under this act. Can the minister confirm that that is his understanding?

The Hon. S.G. WADE: I am advised that that has been the ongoing view of government.

The Hon. K.J. MAHER: Just to confirm, is it the minister's understanding that shisha vendors have always been regulated according to the requirements for serving food around tobacco products?

The Hon. S.G. WADE: I am advised yes.

The Hon. K.J. MAHER: Is the minister aware of any instances of breaches of rules around serving food around tobacco products in relation to shisha products?

The Hon. S.G. WADE: I am advised to take that on notice. I do not have the information with me.

The Hon. K.J. MAHER: I would be grateful. When the minister is taking that on notice, can he indicate what he means by coming back with a response?

The Hon. S.G. WADE: I would suggest we provide the information between the houses.

The Hon. K.J. MAHER: I thank the minister for that. That seems a very sensible way to go. There might be others that are taken on notice and provided between the houses. I wonder also about whether there has been any consultation on these current changes with shisha vendors—I am thinking of those we see around Hindley Street.

The Hon. S.G. WADE: I might make some comments and then the honourable member might clarify whether there are any outstanding queries that are left. I just want to restate that shisha tobacco is already covered, in the government's view, by the Tobacco Products Regulation Act 1997. It is covered, in our view, under the definition of tobacco product. Consequently, offences relating to tobacco products, such as smoking in a smoke-free area or selling tobacco to minors, also extend to shisha products. So, in that sense, it would be almost counterintuitive to talk to them about this legislation expanding to them, because they are already covered. The reason why we are putting in a specific definition is to make it clearer to the community and to retailers that offences related to tobacco products apply.

The SA Health enforcement team has undertaken a range of actions in an attempt to increase the compliance of shisha businesses with the tobacco laws. Along with numerous meetings of business owners, they have already undertaken over 40 inspections of shisha bars between 2016 and 2018. The information I have been provided actually does indicate that those inspections have resulted in three expiation notices being issued, as well as issuing multiple directives to make changes to improve compliance. Whilst, as I understand it, we have not specifically engaged shisha businesses in relation to these changes, what we have already been doing makes it clear that we believe it applies to them.

Clause passed.

Clauses 8 to 17 passed.

Clause 18.

The CHAIR: Ms Bonaros, you have filed two amendments: the first amendment, No. 1, Bonaros-1, is at clause 18.

The Hon. C. BONAROS: I indicated during the second reading that I would not be moving those amendments. Can I, for the record again, confirm that the reason I will not be moving those amendments is that amendments have been filed by the opposition that increase the penalties around selling to minors even further than what we proposed, and we will be supporting those amendments, as opposed to our own.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 8, after line 26—Insert:

(1a) Section 38A(1), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

(a) in the case of a responsible person who is the proprietor of a business—

(i) for a first offence—$20,000;

(ii) for a second or subsequent offence—$40,000; or

(b) in any other case—$5,000.

(1b) Section 38A(1), expiation fee provision—delete the expiation fee provision and substitute:

Expiation fee: $1,200.

This amendment seeks to raise the penalty provisions for the sale of tobacco products to minors, and it does so to place them in line with the penalties for the sale of alcohol to minors. The opposition believes that the sale of cigarettes to minors is harmful and addictive and should be afforded the same maximum penalty as for alcohol. So, given that, the penalty would increase the government's proposed maximum penalty of $10,000 to $20,000 for a first offence, and a maximum of $40,000 for secondary or subsequent offences, for proprietors of a business.

For anyone who is not a proprietor of the business who provides tobacco products to children, an expiation fee of $1,200 would apply. We believe such a penalty sends a clear message to vendors that selling tobacco to children is a serious offence and should not be taken lightly, and brings it into line with what the penalty regime is for alcohol.

The Hon. S.G. WADE: Can I ask the Leader of the Opposition who the opposition consulted with on this amendment?

The Hon. K.J. MAHER: The member for Kaurna is the shadow health minister and has conduct of this bill, so I am happy to take that on notice.

The Hon. S.G. WADE: The government supports the principle of ensuring that penalty levels in the tobacco legislation provide a strong deterrent against committing offences, particularly the offence of selling tobacco to minors. However, it is important that the levels are consistent with a clear rationale and that there is a consistent approach across the legislation.

Currently, the bill increases penalties based on CPI as an administrative amendment, which aims to ensure penalties are updated according to the cost of living, since they have not changed since 1997. I note the fact that since 1997 the Labor Party has formed government for 16 of those years and took no action to maintain the real impact of enforcement. It is our government's view that any further increases need to be considered on an offence level and align with levels in the rest of the legislation, and whether it is commensurate with the seriousness of the relevant offence.

Rather than introduce a new penalty for businesses and individuals for just one offence in the act, the government intends, as it has already made clear in the second reading stage, to consult publicly on penalty levels across the legislation and to bring in another bill. Consultation has already commenced ahead of that broader consultation process on the legislation to be conducted in early 2019.

It is the government's view that making changes at this stage pre-empts that consultation and denies the opportunity for health organisations, industry and the public more broadly to express their view. The fact that the opposition cannot tell us who they consulted I think highlights the fact that this is a parliamentary response rather than a health response.

The Hon. T.A. FRANKS: For the sake of clarity at this point, the Greens indicate that we are sympathetic to the government's intentions to further consult on this matter, while reserving our position to consider higher penalties at a later date.

The committee divided on the amendment:

Ayes 9

Noes 8

Majority 1

Amendment thus carried; clause as amended passed.

Clauses 19 to 33 passed.

Schedule 1 passed.

Schedule 2.

The Hon. K.J. MAHER: I have a question on schedule 2 before moving my amendment. Is the minister able to confirm whether he or the department considered raising any of the penalties, not just the ones we referred to, above what is in this current bill?

The Hon. S.G. WADE: Yes.

The Hon. K.J. MAHER: Which penalties did the minister consider raising in the bill that did not appear as raised in the bill?

The Hon. S.G. WADE: Unlike the opposition, this government's intention is to consult with the community both in stage 1 and stage 2 and come back with a fully considered bill. I am not going to pre-empt that consultation now.

The Hon. K.J. MAHER: Will the minister confirm that he and his department wanted higher penalties but were overruled and vetoed somewhere along the cabinet process?

The Hon. S.G. WADE: As the honourable member knows, I am certainly not going to go into cabinet deliberations. My understanding is that the basic stage 1 and stage 2 legislative reform approach was that it was recommended by the department.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 14 [Schedule 2, item relating to penalty provision for section 38A(1)]—Delete the item relating to the penalty provision for section 38A(1)

This is consequential on the previous amendment for the raising of penalties for selling tobacco to minors having passed.

The Hon. S.G. WADE: I am advised that this amendment is consequential, and the government therefore supports it.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (12:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.