Public Health (Tobacco and Other Products) Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 223 (15 November 2023)

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Purpose	This bill seeks to consolidate Commonwealth tobacco regulation into one legislation package to streamline the operation of the legal framework. The bill will be supported by the Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 13 September 2023
Bill status	Before the Senate.

Immunity from civil liability^[21]

2.28 Clause 183 of the bill seeks to provide that a protected person, which includes the minister, the secretary, an authorised officer or a person acting under an authorised officer's direction or authority^[22], is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of anything done by the protected person in good faith in performance of the bill.

2.29 An authorised officer would be granted monitoring and investigation powers^[23], as well as the power to require information or documents^[24]. These powers could include using force against things in executing a warrant^[25].

2.30 In Scrutiny Digest 12 of 2023, the committee requested the Minister for Health and Aged Care’s (the minister) detailed advice as to why it is considered necessary and appropriate to confer immunity from civil liability on the minister, secretary, authorised officers and persons acting under authorised officers. ^[26]

Minister for Health and Aged Care’s response^[27]

2.31 The minister advised that the overarching purpose of clause 183 is to protect the minister, secretary, authorised officers and persons acting under the direction or authority of authorised officers against personal civil liability for acts or omissions done in good faith, as this supports efficiency in decision making. The minister also advised that this immunity relates to individuals and an affected person may still seek a remedy from the Commonwealth when applicable. The minister advised that remedies are also available under the Scheme for Compensation for Detriment caused by Defective Administration.

2.32 Finally, the minister advised that there is ‘[a] well-established body of evidence that demonstrates that the tobacco industry has operated [...] with the intention of subverting the role of governments in developing and implementing public health policies to combat the tobacco epidemic, [which includes a history of litigious activity].’^[28] The minister advised that conferral of immunity from civil liability when performing functions and powers in good faith prevents the ability for civil proceedings to be utilised to undermine or put at risk actions taken by protected persons.

Committee comment

2.34 The committee welcomes the additional context provided by the minister particularly in relation to the history of the tobacco industry operating with the intention of subverting public health regulatory schemes including through litigious activity. The committee also welcomes the minister’s confirmation that the bill does not confer immunity on the Commonwealth.

2.35 In light of the above information, the committee makes no further comment on this matter.

Reversal of the evidential burden of proof^[29]

2.36 A number of provisions in the bill seek to create offences which have offence-specific defences which reverse the evidential burden of proof. These defences are provided by the following subclauses: 19(3), 42(3), 93(2), 94(2), 95(4), 96(4), 99(4), 100(2), 103(3), 104(3), 107(2), 108(2), 109(4), 110(4), 113(4), 114(2), 117(3), 118(3), 120(2), 127(3) and 128(3).

2.37 Broadly, these offences are contained in Chapter 3 of the bill and relate to the sale, supplying, possession, purchasing, packaging or manufacturing of tobacco products that are not compliant with retail packaging requirements, or that are prohibited or are otherwise non-compliant. The proposed defences provided by the subclauses above broadly relate to personal use or conduct that is in the course of compliance and enforcement activities.

2.38 In Scrutiny Digest 12 of 2023, the committee requested the minister’s detailed justification as to why it is proposed to use offence-specific defences for the defences listed in subclauses 19(3) and 42(3). The committee also requested the minister’s justification as to the requirement to reverse the evidential burden of proof in relation to the other categories of defences under Chapter 3 of the bill. ^[30]

Minister for Health and Aged Care’s response^[31]

2.39 The minister advised that the approach adopted for proposed subclauses 19(3) and 42(3) as offence-specific defences is consistent with the approach for permitted publications established by the Tobacco Advertising Prohibition Act 1992. However, the approach adopted in the bill is intended to result in more areas being treated as permitted publications through the use of offence-specific defences rather than falling outside of the definition of advertising or publishing. The minister also advised that the provisions have been drafted with consideration given to balancing the needs of effective law enforcement and the presumption of innocence as it would be overly onerous for the prosecution to need to discount the possibility of a permitted publication exception.

2.40 The minister further advised that the exception for permitted publications reflect that the matter, or relevant facts and evidence, may be peculiarly the defendant’s knowledge. This may include evidence of mailing receipts, sent items, address lists or other types of trade communications that were sent only to tobacco distribution entities and not to members of the public.

2.41 In relation to the proposed common exceptions provided for offences under Chapter 3 of the bill, the minister advised that these provisions adopted a similar approach of reversing the evidential burden of proof for certain categories of defences as applied under the Tobacco Plain Packaging Act 2011. The minister also provided advice in relation to the nature of the evidence or material that a defendant would need to adduce in order to rely on the common exceptions to offences under Chapter 3. These categories included exceptions for:

Committee comment

2.43 The committee reiterates that offence-specific defences that reverse the evidential burden of proof, which ordinarily rests with the prosecution, should only be utilised where the evidence needed to be adduced is peculiarly within the defendant’s knowledge. However, the committee welcomes the clarity provided by the minister in relation to the offence-specific defences under Chapters 2 and 3 of the bill.

2.44 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to the offence-specific defences under Chapters 2 and 3 of the bill be tabled in the Parliament as soon as practicable. The committee notes the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

Reversal of the legal burden of proof
Broad scope of offence provision(s)^[32]

2.45 The bill seeks to impose three rebuttable presumptions. These are provided by clause 17, relating to a rebuttable presumption of offer for retail sale; subclause 20(4), relating to a rebuttable presumption for when material is presumed to be a tobacco advertisement; and subclause 43(4), relating to when material is presumed to an e-cigarette advertisement.

2.46 Further, under subclauses 20(4)(c) and 43(4)(c), the prosecution would be able to presume that material containing a trade mark, design, colour, logo, get-up or work that is 'evocative of, or closely associated with, a registered trade mark or design that is used, or has been used by any person at any time'^[33] in relation to tobacco or e-cigarette products is a tobacco or e-cigarette advertisement. The committee considered that this term could conceivably cover a broad range of material and is not sufficiently specific as to what is evocative of or closely associated with a registered trademark or design.

2.47 Subclauses 19(1) and 42(1) seek to create offences which relate to the prohibition on publishing tobacco and e-cigarette advertisements.

2.48 Subclauses 19(9) and 42(9) seek to create exceptions to these offences where:

2.49 In Scrutiny Digest 12 of 2023, the committee requested the minister’s advice as to why it is proposed to reverse the legal, rather than the evidential burden of proof in relation to clause 17 and subclauses 19(9), 20(4), 42(9) and 43(4).

2.50 The committee also requested the minister’s detailed advice as to the types of material expected to be captured by subclauses 20(4)(c) and 43(4)(c) as well as how it is anticipated a defendant would be able to rebut a presumption that has arisen due to the operation of subclauses 20(4)(c) and 43(4)(c).^[34]

Minister for Health and Aged Care’s response^[35]

2.51 The minister advised that the proposed reverse onus provisions are appropriate as they relate to elements which would be extremely difficult for the prosecution to prove and are peculiar to the defendant’s knowledge. Further, the nature of the regulatory regime in this area will at times be dependant on the operation of rebuttable presumption.

2.52 In relation to clause 17, the minister advised that the circumstances in which the reversed burden of proof could apply are narrow. The presumption facilitates prosecutions in circumstances where it is reasonable to presume tobacco products are for retail, such as in a shop or a wholesale facility.

2.53 The presumption would also be limited to only one element of the offence, and would prevent prosecutions from being erroneously held up by having to prove the intention to sell goods for retail purposes. It would also remove the possibility of the defendant raising doubt by asserting that the product is not for retail sale in circumstances where that is highly improbable.

2.54 In relation to subclauses 19(9) and 42(9), the minister advised it would be difficult to prove an individual has received a direct or indirect benefit for publishing a tobacco advertisement and that as a matter of effective administration, it is more appropriate that the burden be on the individual.

2.55 In relation to subclauses 20(4) and 43(4), the minister advised the presumption facilitates prosecutions in circumstances where it would otherwise be overly technical for the prosecution to prove that an item, such as a trademark, was promoting tobacco or e-cigarettes.

2.56 The presumption would also only be limited to one element of the offence. Further, the minister advised that the inclusion of these subclauses is to ‘address attempts to subvert advertising prohibitions by utilising things such as logos which look like, and are therefore recognisable as, tobacco product trademarks but depart from the specific trademark.’^[36] The minister provided two examples of a tobacco product company utilising branding similar to its trademark by sponsoring another company in order to flout existing prohibitions on advertising.

2.57 The minister also advised in relation to subclauses 20(4) and 43(4) that the approach to rebut the presumption would likely be equivalent to how evidence is adduced in an intellectual property or copyright cases, such that there may need to be evidence from focus groups or consumers as to the perceived ‘promotional’ nature of the item. A focus group survey could support the view that the use of the trademark on that product was not having the effect of promoting tobacco or e-cigarettes and rather that it might be being utilised with the opposite effect.^[37]

2.58 Finally, the minister advised that the requirement for a defendant to need to rebut the presumption is balanced against the consideration that it would be unproductive for the prosecution to need to establish that such things as trademarks that are clearly evocative of tobacco insignia are promoting tobacco. This kind of material is generally recognised as advertising for the purposes of the bill as these are the kinds of items that are already restricted or prohibited from being included on tobacco packaging.^[38]

Committee comment

2.60 The committee welcomes the clarity provided by the minister in relation to tobacco product companies attempting to subvert advertising prohibitions through the use of logos, trademarks or other brandings that are similar to or may be evocative of tobacco products.

2.61 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to the reversed legal burdens of proof be tabled in the Parliament as soon as practicable. The committee notes the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

Broad delegation of administrative powers^[39]

2.62 Subclauses 154(11) and 156(10) of the bill seek to provide that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties under Parts 2 and 3 of the Regulatory Powers Act 2014.^[40] Persons assisting would be able to exercise these powers and functions in relation to evidential material that relates to an offence against the bill, a civil penalty provision of the bill or an offence against the Crimes Act 1914 or the Criminal Code 1995. In addition, they would be able to exercise all monitoring and investigation powers that authorised officers are empowered to.

2.63 Subclause 150(2) seeks to provide that an authorised officer may only be appointed if the secretary is satisfied that the person has suitable qualifications, training or experience to properly perform the functions or exercise the powers of an authorised officer.^[41]

2.64 In Scrutiny Digest 12 of 2023, the committee requested the minister’s advice as to why it is necessary to confer monitoring and investigation powers on any person to assist an authorised officer and what requirements a person assisting will be subject to prior to their appointment.^[42]

Minister for Health and Aged Care’s response^[43]

2.65 The minister advised that there may be a number of reasons why an authorised person may seek assistance from another person, such as for workplace health and safety reasons, for administrative and operational assistance or for other technical specialist skills that are relevant and necessary for conduct monitoring or investigation.

2.66 The minister advised it would not be appropriate to require authorised or specific training or qualifications of a person assisting as there may be times where the function of the assisting person is not directly related to the analysis of products for compliance with tobacco product analysis but are critical nonetheless. For example, the use of a locksmith, data forensics analyst, or police and other law enforcement officers may be needed but would not need training or qualification in relation to the bill’s provisions.

Committee comment

2.68 In light of the above, the committee makes no further comment on this matter.

^[21] Clause 183. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[26] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (9 August 2023) pp. 36–37.

^[27] The minister responded to the committee's comments in a letter dated 9 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 14 of 2023.

^[29] Subclauses 19(3), 42(3), 93(2), 94(2), 95(4), 96(4), 99(4), 100(2), 103(3), 104(3), 107(2), 108(2), 109(4), 110(4), 113(4), 114(2), 117(3), 118(3), 120(2), 127(3) and 128(3). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[30] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (9 August 2023) pp. 37–39.

^[31] The minister responded to the committee's comments in a letter dated 9 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 14 of 2023.

^[32] Clause 17, subclauses 19(9), 20(4), 42(9), 43(4). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[34] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (9 August 2023) pp. 40–43.

^[35] The minister responded to the committee's comments in a letter dated 9 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 14 of 2023.

^[39] Subclauses 154(11) and 156(10). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

^[42] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (9 August 2023) pp. 43–44.

^[43] The minister responded to the committee's comments in a letter dated 9 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 14 of 2023.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests