Legislative Council Fifty-Fifth Parliament, First Session (55-1) 55 1 Parliament of South Australia Legislative Council published Bills Statutes Amendment (Tobacco and E-Cigarette Products - Closure Orders and Offences) Bill Statutes Amendment (Tobacco and E-Cigarette Products - Closure Orders and Offences) Bill Statutes Amendment (Tobacco and E-Cigarette Products - Closure Orders and Offences) Bill Second Reading Second Reading The Hon. K.J. MAHER Legislative Council Minister for Aboriginal Affairs Attorney-General Minister for Industrial Relations and Public Sector Special Minister of State The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:53): I move: That this bill be now read a second time. I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them. Leave granted. I rise today to introduce the Statutes Amendment (Tobacco and E-Cigarette Products – Closure Orders and Offences) Bill 2025. This Government has demonstrated its strong commitment to tackling illicit tobacco and e-cigarette sales in South Australia. Through recent amendments to the Tobacco and E-Cigarette Products Act 1997, the Government introduced nation-leading powers and penalties in 2024, to make a big impact on this illegal industry. These include increasing the penalty levels from an upper limit of $75,000 previously, to now up to $1.5 million. In addition, these new laws allow the issuing of a closure order on a premises so that Authorised Officers, and the courts, can immediately close down this form of unlawful activity. The new powers and penalties ensure that there are very significant implications for selling these products, and that the fine levels are no longer 'just the cost of doing business'. These new measures have already been used by both Consumer and Business Services and South Australia Police to seize illicit products across the State. As at 13 February 2025, approximately $12.5 million worth of illicit products had been seized by our enforcement teams. This includes more than 10 million cigarettes, more than 4 tonnes of tobacco, more than 400kg of shisha and more than 55,000 vapes. These seizures have occurred between July and February 2025–less than an eight-month period. Since new laws started on 13 December 2024 to 6 March 2025 the Minister for Consumer and Business Affairs has issued 9 interim closure orders and successfully applied to the courts for one long-term closure order. As part of Operation Eclipse, South Australia Police is sharing intelligence with Consumer and Business Services to assist them with their enforcement work, as well as liaising with Victoria Police and other law enforcement agencies. Shared intelligence between law enforcement agencies has identified that up to 75 per cent of the illicit trade of tobacco and e-cigarette products in Australia is being controlled by organised crime groups. As a result, the Commissioner for Police has requested additional powers to tackle this issue in South Australia and this Government is willing and prepared to provide our enforcement agencies with the tools they need to disrupt and end illicit tobacco trade in this state. The Statutes Amendment (Tobacco and E-Cigarette Products–Closure Orders and Offences) Bill 2025 seeks to amend both the Tobacco and E-Cigarette Products Act 1997 and the Retail and Commercial Leases Act 1995. The amendments to the Tobacco and E-Cigarette Products Act 1997 will: Provide additional powers for police, similar to those in the Tattooing Industry Control Act 2005, that provide police the power to undertake additional searches in premises suspected of selling illicit products, to include searches for drugs, weapons and explosives. Introduce greater penalties for those in possession of, or supplying, commercial quantities of illicit tobacco and e-cigarette products, with fines up to $6.6 million. Create a provision for information relating to the closure of unlicensed premises to be made publicly available. Provide greater clarification for information-sharing between our enforcement agencies, as well as their ability to disclose information relating to illicit activity to interested parties such as the owner of a premises or their agent. The Bill will also create an offence for a person, who being the owner or having the control or management of a premises, causes or permits another to engage in prohibited conduct, such as the sale of illicit products, on that premises. An example of this might be a situation where a premises is leased by a criminal enterprise to tenants as part of an illicit activity. It is important to note that in this context causing or permitting an offence must be a positive act and would not apply in instances where landlords only become aware of such conduct. It would clearly need to be a situation where this person knowingly causes or permits another to engage in prohibited conduct on the premises. This provision is not targeting innocent 'mum and dad' lessors, property managers or real estate agents; the intent is to focus on disrupting organised crime operations. To support these new provisions, amendments to the Retail and Commercial Leases Act 1995 are also included in this Bill, which will allow a lessor to terminate a retail shop leases if a long-term closure order under section 69CC (Long-term closure order) of the Tobacco and E-Cigarette Products Act 1997 is in effect. A provision has also been included to allow for the parties of a lease to apply to the Magistrates Court to do anything necessary or desirable (as the Court thinks fit) to resolve disputes which arise from a long-term closure order. For example, as some lessors may find themselves 'out-of-pocket' because of a long-term closure order, this provision will allow for them to apply for compensation including (but not limited to) for the loss of rent, costs associated with potential failure to 'make good' on the requirements of a lease and the 'clawing back' of incentives of long-term lease arrangements. Despite the declining rates of smoking, tobacco remains a leading cause of death and disease in Australia, and it is estimated to cost the South Australian economy over $2 billion each year. Australia has some of the toughest requirements for tobacco products in the world—including plain packaging, health warnings, restrictions on flavours, and pricing. These measures have played a big part in driving down smoking rates and preventing the uptake of smoking by non-smokers, particularly younger people. In recent years, our attention has also turned to e-cigarettes, or vapes, which had rapidly increased in South Australia and across the country, especially among children and young people. The South Australian Government was an active player in the national vaping reforms as well as taking other strong actions against this serious health problem, including: running hard-hitting media advertising campaigns about vaping, across radio, outdoor and digital platforms, including Instagram, TikTok and YouTube; supporting schools with an education campaign, resources and staff training aimed at preventing children taking up vaping and helping those who want to quit; introducing new vape and smoke free areas that commenced on 1 March 2024—banning vaping and smoking in a variety of public outdoor areas including at our schools and childcare settings, and under 18 sporting events; and imposing tougher licence conditions on retailers to reduce the illegal sales of tobacco and vapes. Pleasingly recently released research from the South Australian Health and Medical Research Institute (SAHMRI) showed vape use among young South Australians has significantly reduced thanks to Australia's world leading vaping laws. The research found 2024 vaping rates among 15 to 29-year-olds reduced by around a third to 10.8%, when compared to 2023 (15.1%). Vaping rates among the 30 to 59 age group also dropped by around half from 6.7% in 2023 to 3.6% in 2024, while overall, vaping rates for people aged 15 and above were reduced by more than a third, 6.7% in 2023 to 4.3% in 2024. This comes as the Minister for Education has reported that suspensions relating to vaping at South Australian schools has dropped by a staggering 50%. In Term 1 of 2023 there were 388 suspensions compared to 186 in Term 1 of 2024. A trend of greater than 50% has continued throughout terms 2 and 3 of 2024 compared to 2023. This latest data shows the Federal and State Government's vaping reforms are working to prevent a new generation from becoming addicted to nicotine. However, the illicit tobacco and vaping products currently available in our community have the potential to reverse these successes. Therefore, this illicit tobacco trade is not only a law enforcement and compliance issue but also a public health issue. These measures support the Government's investment in evidence-based initiatives such as public health campaigns, delivery of quitting services and reducing the community's exposure to second hand smoke, including through recent smoke-free and vape-free laws introduced in early 2024. The Government remains committed to achieving the ambitious target of achieving a daily smoking prevalence of 6% by 2027 and this Bill is another step to support our work in meeting this target. The sale of illicit tobacco and e-cigarettes products is not a 'victimless crime'. Smoking and vaping causes harm to the whole community, not just the individuals who choose to smoke or vape. This includes the reports of firebombing we have seen, that have spread from interstate into South Australia. Additionally, there are very real harms associated with using these products—particularly through the development of high levels of nicotine dependence by young South Australians, and the very serious associated health risks. I would like to thank the Commissioner for Police for his ongoing support and the suggested amendments which have initiated the development of this Bill, further disrupting the trade of illicit tobacco and e-cigarette products for the benefit of all South Australians. I would also like to thank Preventive Health SA for their work in preparing this bill along with Consumer and Business Services and SA Police. I commend this Bill to the chamber. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement These clauses are formal. Part 2—Amendment of Retail and Commercial Leases Act 1995 3—Insertion of section 47 This clause inserts a new section as follows: 47—Long term closure order The proposed section provides inserts the following provisions to be taken to form part of a retail shop lease if a long term closure order under section 69CC of the Tobacco and E-Cigarette Products Act 1997 is in effect in relation to the premises to which the lease applies: the lessor or the lessee may terminate the lease because of the long term closure order by giving not less than 28 days written notice to the other (or such shorter period as agreed between the parties); if a dispute arises between the parties to the retail shop lease as a consequence of the long term closure order, the Magistrates Court may, on application by a party to the lease, make such orders (including orders for the payment of compensation) or do anything necessary or desirable as the Court thinks fit to resolve the dispute. 4—Saving and transitional provisions This clause provides saving and transitional provisions to allow amendments in this Part to apply in relation to— retail shop leases irrespective of when the lease was entered into; and long term closure orders irrespective of whether the order was made before or after the commencement of the amendments. Part 3—Amendment of Tobacco and E-Cigarette Products Act 1997 5—Amendment of section 33—Possession of certain tobacco products This amendment makes a technical amendment to the wording of the provision for consistency with other offence provisions in the Act. 6—Amendment of section 39B—Offence relating to possession of e-cigarette products This amendment makes a technical amendment to the wording of the provision for consistency with other offence provisions in the Act. 7—Insertion of Part 3 Division 6 This clauses inserts a new Part 3 Division 6 as follows: Division 6—Miscellaneous 45A—Possession and supply of certain quantities of prescribed product The proposed section sets out 2 new offences if a person who, without lawful excuse: has possession of a commercial quantity or a large commercial quantity of a prescribed product; or supplies to another person a commercial quantity or a large commercial quantity of a prescribed product. Higher penalties apply for the offence in relation to possession or supply of a large commercial quantity as opposed to possession or supply of a commercial quantity. Differing penalties apply for each offence depending on whether the offence is committed by a body corporate or an individual, with higher penalties applying if a second or subsequent offence is committed. The quantity of a product that constitutes a commercial quantity or a large commercial quantity is to be prescribed in the regulations. A prescribed product is defined as— an e-cigarette product; or a prescribed tobacco product within the meaning of section 33(2) of the Act; or a prohibited product within the meaning of section 39C of the Act. 45B—Offence related to engaging in prohibited conduct on premises The proposed section creates a new offence if a person who, being the owner of premises or having the management or control of premises, knowingly causes or permits another to engage in prohibited conduct on the premises. Differing penalties apply for each offence depending on whether the offence is committed by a body corporate or an individual, with higher penalties applying if a second or subsequent offence is committed. Prohibited conduct is defined as conduct constituting an offence against certain provisions of the Act listed in the proposed Schedule A1. 8—Insertion of section 66AA This clause inserts a new section as follows: 66AA—Further powers of police officers The proposed section sets out a number of additional powers that may be exercised by police officers in relation to premises that an officer reasonably suspects are being used for the purposes of, or in connection with, the unlawful sale of tobacco products or e-cigarette products. These include the power to carry out general drug detection under the Controlled Substances Act 1984 and random weapon and explosive searches. 9—Amendment of section 69—Powers in relation to seized records or things This amendment inserts a new paragraph into the section to provide a power to take and test a sample of any thing seized in accordance with Part 5 of the Act. 10—Amendment of section 69CC—Long term closure order Subclauses (1) and (2) make a number of technical amendments to insert references to the Magistrates Court consistent with other references in the section. Subclause (2) amends section 69CC(3) to allow the owner of premises in relation to which an application for long term closure order has been made to apply to the Court to be a party to proceedings in relation to the application. Subclause (4) inserts a new subsection which gives power to the Court, on application by the owner of premises in relation to which a long term closure order is in effect, to make an order amending or revoking the long term closure order, with the Minister being a party to the proceedings in relation to such an application. 11—Insertion of section 69CE and 69CF This clause inserts new sections as follows: 69CE—Certain information relating to closure orders may be made publicly available The proposed section allows the Minister to make certain information in relation to a closure order publicly available in the manner determined by the Minister. 69CF—Protection from liability The proposed provision provides that despite section 86A of the Act, the Crown incurs no liability for a decision of the Minister, or by any person acting on behalf of the Minister, to exercise or not to exercise powers under Part 6A. 12—Amendment of section 78—Disclosure of information This clause inserts 2 new subsections. Proposed subsection (2a) authorises the disclosure of information by an authorised officer in relation to premises in respect of which a closure order is in effect or that the authorised person reasonably suspects are being used in connection with the offence against the Act to— the owner or occupier of the premises; or an agent of the owner or occupier of the premises; or another prescribed person. Proposed subsection (2b) provides that despite section 86A of the Act, the Crown incurs no liability for a decision of the Minister, or by any person acting on behalf of the Minister, to disclose information of a kind authorised under proposed subsection (2a). 13—Insertion of section 78A This clause inserts a new section as follows: 78A—Commissioner of Police may provide information to Minister The proposed section provides that, without limiting any other Act or law that requires or authorises the Commissioner of Police to disclose information, the Commissioner of Police may disclose to the Minister any information on any matter relevant to the operation or enforcement of this Act. 14—Insertion of Schedule A1 This clause inserts a new Schedule as follows: Schedule A1—Prohibited conduct The proposed schedule lists the offences constituting prohibited conduct for the purposes of the offence provision in proposed section 45B. 15—Transitional provisions This clause makes transitional provisions consequent on amendments in the measure. Debate adjourned on motion of Hon. B.R. Hood.