Public Health Amendment (Prevention of Sale on Smoking Products to Under-age Persons) Bill 2018

Ms WEBB (Nelson) – Mr President, I am going to join my colleagues in acknowledging the significant work undertaken to date by the member for Windermere on this bill, and on this issue more broadly over many years. 

I share his passion for better health outcomes for the Tasmanian community, and acknowledge the importance of lowering smoking rates dramatically to help achieve this. 

I am aligned with a deep concern about the levels of tobacco smoking in our Tasmanian community, and the devastating health impacts caused by that activity. 

I recognise and express my appreciation for the representations we have received, in particular from medical and health professionals on this issue and this bill.  They have made informative and compelling representations to us.  While I do not personally have a history of smoking, I had family members whose health has been ruined by it and their lives cut short.  I agree with and recognise the urgency of this issue and I want to see much greater effort and resources devoted to addressing it.

For these reasons, I find consideration of this bill a real challenge. It is with difficulty I say I am not going to be supporting its progression.  When I look at the efforts we have made today to reduce smoking rates in Australia across recent decades, we see a range of approaches that have actually met with considerable success.  A far lower proportion of Australians are smokers today than 50 years ago.  Those approaches have included, but are not limited to, broad public education campaigns, targeted education campaigns, restrictions on where people can smoke in public places and in cars, price signals through raising the rate of taxation applied to this product, increased availability of nicotine replacement products, funded quit campaigns, restrictions on advertising, restrictions on visibility at point of sale, and raising the legal age of purchase to adulthood to align with other legal drugs, such as alcohol and introduction of plain packaging, just to name some.

It has not been any one approach that has delivered a silver bullet, but rather this range of approaches brought to bear in concert.  However, as much as we can point to the success over recent decades, it is clear further progress, particularly in some demographics, has stalled.  This points to an important aspect of the picture of tobacco use.  While it is a clear cause of physical health problems, in itself it is also a symptom of social, health and economic problems.  The residual level of smoking in our adult population and the pattern of uptake and use in young people has a clear social radiant.

Here in Tasmania, we have a social radiant across all of our poor health outcomes.  This is a situation that needs to be addressed in its entirety, including policies that address broader root causes such as poverty and inadequate access to health care, dental care, inadequate mental health care, inadequate alcohol and other drugs services.  I note that policies and programs to effectively address these root causes would subsequently work to address not only the smoking rates, but also every other driver of poor health outcomes in the state.

As described in a Menzies Institute study:

Smoking continues to be more prevalent in areas that are socio-economically disadvantaged.  Australia’s Health Tracker, which uses data from the National Health Survey reported that Australia’s highest adult smoking rates are found in the Tasmanians suburbs of Bridgewater, Gagebrook (39 per cent); and Risdon Vale (34.4 per cent).  All these areas have a socio-economic indexes for areas (SEIFA), decibel number of one when ranked, indicating high levels of disadvantage.  The number of adolescences who should be attending school, but are not are also more apparent in areas of socio-economically disadvantaged.

I agree with the member for Windermere that in Tasmania we must take greater notice of our disadvantaged communities when framing and developing preventative health responses.  However, I do not regard the proposed T21 bill as preferable or likely effective action to take in breaking those cycles.  I see it as sitting quite separately to the demographic reality of continued high smoking rates.  Thinking about the T21 bill and those most likely to respond to this approach, I do not think it will be those very communities and demographic cohorts that remain most affected by tobacco addiction.

I have asked myself on considering this bill:  why not just try anyway?  That is a very valid thing.  Why would not we just try anyway?  Generally, complex entrenched problems need a suite of solutions brought to bear on them; in many cases, innovative new approaches can be added to the mix with good effect to try to shift outcomes.  Having worked in the community sector and in social policy research advocacy, I am familiar with making the case that all available levers should be pulled when it comes to wicked problems.  The exception to that is when consideration must also be given to other consequences of a policy or program, beyond an additional to the intended impact and outcome – consequences or considerations that weigh against the potential value of giving it a try.  In the case of T21, I believe there are significant and fundamental consequences and implications to be considered when weighing up the potential value of its adoption in the Tasmanian context.

For me, the biggest hurdle in relation to this bill remains the fact that it clearly contravenes the principle of non-discrimination, of treating adult Tasmanians equally.  This bill asks us to treat one group of adults differently based on a single characteristic, their age.  It would impose a ban on purchasing a legal product only on Tasmanian adults aged between 18 and 21.  We should not lightly set aside the fundamental principle of non-discrimination.  While they are not constitutionally mandated, this bill infringes a number of civil rights.  These implied rights are something we should continue to strive for and work hard to uphold.  I point to the Commonwealth Age Discrimination Act 2004, section 14, which prohibits treating a person less favourably because of their age.  Section 28 prohibits refusing to sell or make goods available because of age.  The International Convention of Civil and Political Rights, Article 2, No. 1, and Article 26 prohibits distinction bases on status, which includes age.  The common law and constitutional law systems are premised on the rule of law which denotes equality before the law or the equal subjection of all classes of the ordinary law.

Beyond this, the concept of personal liberty remains and forms a great part of modern property rights, freedom of speech and freedom of association.  The limitation of these freedoms and rights should not be taken lightly and should be taken with the utmost caution.  While such principles are not set in stone and it is within our power as legislators to extinguish certain civil rights, this should only occur as a result of an exceptionally strong argument with a guaranteed outcome, with a narrow focus.  The T21 bill does not meet that standard.  To enact it would present a potentially problematic precedent.  For these reasons I remain unconvinced this bill should progress to legislation.

In Tasmania, we have various ages of consent – this has been discussed by others – various ages of consent and permission in regard to a range of activities.  However, there is no precedent for broadly preventing access to a legal product above the age of 18 years, which we recognise as being the achievement of adulthood. 

To put another way, there are examples where we extend access and permission below the age of 18 years, but none where we broadly restrict it above that age.  Some of these have already been listed, but I point to a few – the age of sexual consent, 12, 15, 17, depending on the circumstances; the age at which marriage can occur, 18 or 16, with court permission; compulsory education, to 17 currently, soon to be 18; the time you can get a social media profile is 13; you can join the defence force at 17; criminal responsibility kicks in at 10; drinking alcohol comes in at 18; a provisional driving licence at 17, et cetera.  What I note, and again I stress –

Mr Dean – How many of those are addictive, once you start you cannot give it up?  Isn’t there a significant difference in this?

Ms WEBB – I am not addressing that in my speech.  I know it is a point the member raised and I thank him for raising it. 

My focus here is that this is a very fundamental proposal to restrict access to a legal product to one category of adults.  We have no precedent for doing that.

I accept and agree with the indisputable evidence of overwhelming harm caused by tobacco products.  I understand the compelling medical evidence for aiming to minimise or cease the uptake of smoking by people in their teens and early adulthood, and the benefits to individuals and our broader community if we can be successful in doing that.  The T21 bill has been on the Tasmanian Parliament Notice Paper since November 2018.  During that time an enormous amount of work has been completed.  I am grateful for the most recent research from the Menzies Institute for Medical Research and others in providing us with important information, in-depth analysis and a good evidence base that relates to broadly smoking among young people in Tasmania.

I am confident this research, which has been relevant for us to consider in relation to this bill is also broadly relevant and remains a valuable evidence base to inform future programs and policies.  I look forward to the opportunity for it to do so.

I acknowledge the widespread support expressed for this legislation in polling and by some constituents in my electorate, as well as across the whole state of Tasmania.  It demonstrates the public’s genuine concern about the level of tobacco use in this state, the health impacts it has on our community and the public’s desire to see greater action from government to address this.  If these concerns, the support that is there, the work that has been done were the only considerations in relation to this bill, it would be a straightforward decision to support it, but in my view it is not the case.  I appreciate that others will hold different views, but I can only bring to bear my careful consideration on the matter.

I again state that my disinclination to support this bill in particular is not due to a lack of appreciation of the serious impacts smoking has on our state or our shared desire to see greater action.  I note that the current Government has previously articulated targets related to reducing smoking rates but then did not effectively invest time and effort in achieving them and so failed to meet them. 

I note the current Government has made further commitments in relation to smoking cessation programs to be rolled out in Tasmanian schools to build on the Smoke Free Young People Strategy which is already in progress, but we know that the delivery of those commitments is not guaranteed.  Even if delivered, they are certainly not what we could regard as our best efforts sufficient to the need.

Given the significant challenge presented in our state in particular, I encourage the Government to embrace a more ambitious and bolder approach, to give greater consideration to and investment in not just setting targets or make commitments, but delivering them, actually achieving them.  Also, in this pre-election year I encourage the Opposition similarly to adopt ambitious policy in this area to take to the election as a positive indication the priority of health to the Tasmanian community.

I briefly note a few matters that have played no role at all in my decision not to support this bill.  I want to put these matters on the record. 

I do not give any credence to arguments from industries that profit from the sale of tobacco products.  I find the issues raised by those industry groups largely spurious and the evidence they present fairly uncompelling.  Let me be clear:  I regard the tobacco industry as repugnant.  It is quite simply an industry that profits from killing people and causes great suffering.  It would be an excellent result ultimately to see the tobacco industry go bust through our successful efforts to minimise smoking in our community.

Members will not be surprised to hear me draw a parallel here to the poker machine industry in this country, in this state.  Another legal but addictive and devastatingly harmful product that, to date, we have failed to deliver effective regulation to appropriately protect members of our community.  I am acutely aware of the uphill battle to progress good policy and legislation related to curbing harm to individuals and communities from demonstrably harmful, highly lucrative products backed by politically powerful industry groups.

With my background in campaigning for poker machine reform, I am the very last person in this place who is likely to have any truck whatsoever with the kind of manipulative, intimidatory, misleading and misdirecting tactics employed by industries such as the tobacco industry or the poker machine industry as they attempt to maintain their lucrative stranglehold on a vulnerable customer base and is predicated on causing them harm.

Mr Dean – That is exactly the same with this bill.  It seeks to protect the vulnerable people, kids.

Ms WEBB – Again, I will not go into detail on that.  I have expressed my concern about this bill being fundamentally discriminatory.

Mr Dean – That is not what the anti-discrimination commissioner says.

Ms WEBB – I will continue with my contribution.  In regard to the concerns of the Tasmanian retail businesses that sell tobacco products, I believe there is an opportunity to encourage and incentivise these businesses to move away from tobacco products, particularly as those most reliant on them are disproportionately clustered in low socio-economic areas.  While this would be vehemently opposed no doubt by the tobacco industry, businesses shift and change all the time and it is our policy choice and regulatory challenge to manage and shape that and assist it in ways that are pro-community.

In conclusion, I think we have dropped the ball on tobacco policy and smoking cessation efforts in this state and while I am not supportive of this particular T21 bill, I believe we have available to us a raft of options for action and investment that do not present the civil liberties and discrimination issues I regard as inherent in this bill.  Building on the considerable efforts over many years by the member for Windermere in bringing this issue to the forefront of public conversation, policy consideration and research focus, I hope we are able to act and make meaningful investments in achieving further progress for our state.

Read Meg’s Motion speech for the T21 Bill