Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TOBACCO PLAIN PACKAGING AMENDMENT Bill 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Rural Health and the Minister for Sport,
Senator the Hon Bridget McKenzie)
TOBACCO PLAIN PACKAGING AMENDMENT Bill 2018
OUTLINE
The purpose of the Bill is to widen the scope of persons that can be appointed as
authorised officers under subsection 81(1) of the Tobacco Plain Packaging Act 2011
(the Act).
Under subsection 81(1) of the Act, the Secretary of the Department of Health
(Secretary) may appoint the following persons as authorised officers:
a. a person who is appointed or engaged under the Public Service Act 1999 (PS
Act);
b. a member or special member of the Australian Federal Police.
Under subsection 81(2) of the Act, the Secretary may appoint these persons as
authorised officers under subsection 81(1) of the Act only if the Secretary is satisfied
that the person has suitable qualifications, training or experience.
The proposed Bill would enable other persons with suitable qualifications, training or
experience in addition to those currently listed in subsection 81(1) of the Act, to be
appointed as authorised officers by the Secretary if needed and agreed. This would
extend the persons who the Secretary may appoint as authorised officers to:
a. a person appointed or engaged other than under the PS Act, by the
Commonwealth or a Commonwealth entity (within the meaning of the Public
Governance, Performance and Accountability Act 2013);
b. a person appointed or employed by a state or territory with responsibilities in
relation to health matters or compliance and enforcement in tobacco control
matters;
c. state and territory police officers; and
d. local government officials with responsibilities in relation to health matters or
compliance and enforcement in tobacco control matters.
This amendment is primarily to respond to potential organisational and administrative
changes which may occur in the future, as well as providing more flexible
arrangements to respond to potential non-compliance with the Act.
Currently, under the Act, the National Measurement Institute (NMI), a division of the
Commonwealth Department of Industry, Innovation and Science undertakes
compliance and enforcement activities on behalf of the Department of Health.
Specifically, the minor amendment is to address the potential for the NMI to have a
change in structure leading to officers being employed under alternative arrangements
whereby they would no longer be engaged under the PS Act.
State and territory officers (including police officers) may only be appointed with
agreement of the state and territory concerned. The inclusion of relevant state and
territory health or police officers and local government officers would provide
flexibility and cooperation to respond to non-compliance with the Act should it be
needed and agreed. For example, relevant state and/or territory health officers, if
consent is given by their jurisdiction, may be appointed to respond to localised areas
of non-compliance to assist with inspections and enforcement activity as appropriate.
1
Potential breaches of the Act in remote areas could be actioned in a more efficient
way as it may be possible to use someone already in or close to the local area.
The Bill does not change any substantive elements of the Act including the tobacco
plain packaging requirements. The Bill also does not change any other obligations
under the Act or any offence provisions.
Tobacco use is a leading cause of preventable and premature death and disability in
Australia, and contributes to and compounds existing health and social inequalities. In
2011, tobacco use killed almost 19,000 people in Australia and was responsible for
9.0% of the total burden of disease and injury, making it the most burdensome risk
factor. The most recent available estimates show that the social and economic costs of
smoking (including health costs) in Australia were $31.5 billion in 2004-05.
Although the number of daily smokers in Australia has fallen by more than half a
million in the last decade, approximately three million Australians still smoke. The
Government is committed to reducing the daily national smoking rate.
Plain packaging is a key part of the Government's suite of tobacco control measures.
The Act prevents tobacco advertising and promotion on tobacco products and tobacco
product packaging in order to:
reduce the attractiveness and appeal of tobacco products to consumers,
particularly young people;
increase the noticeability and effectiveness of mandated health warnings;
reduce the ability of the tobacco product and its packaging to mislead
consumers about the harms of smoking; and
through the achievement of these aims in the long term, as part of a
comprehensive suite of tobacco control measures, contribute to efforts to
reduce smoking rates.
The Bill will allow increased flexibility on the authorised officer arrangements under
the Act by providing a wider range of persons who can be appointed as authorised
officers to undertake compliance and enforcement activities under the legislation.
A five-month consultation process on the proposed amendment was undertaken.
Information was provided on the proposed amendment and comments were sought
from each relevant state and territory health department, state and territory police and
jurisdictional local government associations. At the conclusion of consultation, no
agencies opposed the amendment. Some agencies expressed initial concern in relation
to the potential for their officers to be appointed as authorised officers and how this
may affect their resourcing or their strategic priorities. All agencies were assured that
the Bill imposes no obligation. Any appointment would only be proposed if there was
a need for such an arrangement and would be subject to there being a formal
agreement in place.
Financial Impact Statement
It is not expected that the amendment will result in any further financial impact on the
Commonwealth above the current costs associated with tobacco plain packaging
compliance and enforcement activities undertaken by the Department of Health.
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Tobacco Plain Packaging Amendment Bill 2018
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to widen the scope of persons that can be appointed as
authorised officers under subsection 81(1) of the Tobacco Plain Packaging Act 2011
(the Act).
Under subsection 81(1) of the Act, the Secretary of the Department of Health
(Secretary) may appoint the following persons as authorised officers:
c. a person who is appointed or engaged under the Public Service Act 1999 (PS
Act);
d. a member or special member of the Australian Federal Police.
Under subsection 81(2) of the Act, the Secretary may appoint these persons as
authorised officers under subsection 81(1) of the Act only if the Secretary is satisfied
that the person has suitable qualifications, training or experience.
The Bill would enable other persons with suitable qualifications, training or
experience in addition to those currently listed in subsection 81(1) of the Act, to be
appointed as authorised officers by the Secretary. This would extend the kinds of
persons who the Secretary may appoint as authorised officers to:
a person appointed or engaged other than under the PS Act, by the
Commonwealth or a Commonwealth entity (within the meaning of the Public
Governance, Performance and Accountability Act 2013);
a person appointed or employed by a state or territory with responsibilities in
relation to health matters or compliance and enforcement in tobacco control
matters;
state and territory police officers; and
local government officials with responsibilities in relation to health matters or
compliance and enforcement in tobacco control matters.
This amendment is proposed to respond to potential organisational and administrative
changes which may occur in the future, as well as providing more flexible
arrangements to respond to potential non-compliance with the Act.
3
For example, relevant state and/or territory health officers may be able to be
appointed to respond to localised areas of non-compliance to assist with inspections
and enforcement activity as appropriate.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
The purpose of the Bill is to expand the categories of persons who may be appointed
as 'authorised officers' under the Act. This is an administrative amendment to ensure
more flexibility in the appointment of authorised officers under the Act. The new
categories of persons who may be appointed as 'authorised officers' are
Commonwealth officers not appointed under the PS Act, state or territory government
officers, state and territory police officers, or local government officials. It is still a
requirement that any person appointed as an authorised officer has suitable
qualifications, training or experience.
The Bill does not change any substantive elements of the Act including the tobacco
plain packaging requirements. The Bill also does not change any offence provisions of
the Act or other obligations which apply to individuals. It is intended that existing
Commonwealth privacy requirements will apply regardless of the type of officer
appointed as an authorised officer. The Bill therefore does not engage and cannot
limit any of the applicable human rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator the Hon Bridget McKenzie, Minister for Rural Health and the Minister
for Sport
4
TOBACCO PLAIN PACKAGING AMENDMENT Bill 2018
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the Tobacco Plain
Packaging Amendment Act 2018.
Clause 2 - Commencement
This clause provides that the Bill will commence on the day after this Act receives the
Royal Assent.
Clause 3 - Schedules
This clause provides that each Act that is specified in a Schedule to this Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms.
Schedule 1 - Amendments
Item 1 After paragraph 81(1)(a)
Item 1 inserts a provision allowing a person appointed or engaged otherwise than
under the Public Service Act 1999, by the Commonwealth or a Commonwealth entity
(within the meaning of the Public Governance, Performance and Accountability Act
2013), to be appointed as an authorised officer.
This clause is primarily to respond to potential organisational and administrative
changes which may occur in the future, by ensuring the current agency which
undertakes compliance and enforcement activities on behalf of the Department of
Health will be able to continue to provide these services if it undergoes organisational
and administrative changes. This clause will also provide more flexible arrangements
to respond to potential non-compliance with the Act in the future.
Item 2 At the end of subsection 81(1)
Item 2 inserts a provision allowing, a person appointed or employed by a state or
territory or a person appointed or employed by a local governing body established by
or under a law of a state or territory, with responsibilities for health matters or
compliance and enforcement with tobacco control matters, to be appointed as an
authorised officer. Item 2 also inserts a provision allowing a member of the police
force or police service of a state or territory to be appointed as an authorised officer.
This clause will provide more flexible arrangements to respond to potential
non-compliance with the Act. For example, relevant state and/or territory health
officers, if consent is given by their jurisdiction, may be appointed to respond to
localised areas of non-compliance or in remote areas to assist with inspections and
enforcement activity as appropriate.
This clause will expand the range of persons who can undertake compliance and
enforcement activities under the Act (including potential exercise of coercive powers).
Consistent with Chapter 7 of A Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, to become authorised officers these
persons must still be appointed individually by the Secretary, and the Secretary must
5
be satisfied that any person appointed has suitable qualifications, training or
experience. Although the range of the kinds of potential authorised officers will
expand as a result of the Bill, the method of appointment provides a safeguard that
any authorised officers appointed will meet certain requirements as to qualifications,
training or experience as identified by the Secretary. Typically, the Secretary is
satisfied that authorised officers either have formal qualifications relating to
government compliance or investigation, or relevant experience in the field. All
authorised officers receive tobacco plain packaging compliance training.
Item 3 After subsection 81(2)
Item 3 provides that a person of the kind listed in Item 2 may only be appointed as an
authorised officer with the agreement of the state or territory concerned.
This provision ensures that the appointment of state, territory and local government
officers and police officers will only be by agreement.
6