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- 14 November 2002
Public Health Amendment (Juvenile Smoking) Bill (No 2)
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Page: 6768
Second Reading
Debate resumed from 31 October.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.15 p.m.]: As I stated when this bill was last debated, this bill treats tobacco in the same way that alcohol is treated. It is a step in the right direction, albeit a very small step. The Government should get on with the main game and inject money into the New South Wales Quit campaign and ensure that indoor air is entirely smoke-free. I was disappointed that although the workplace relations Minister attended a meeting of workplace relations Ministers last Friday, at which the possibility of Australian indoor air becoming totally smoke-free was discussed, I did not see any publicity about what was going to be done as a result of the meeting. I gather that the issue has been sent back to the health Ministers. It is 52 years since smoking was shown to cause lung cancer. I do not know why we are pussyfooting around when approximately 45 Australians die a day as a result of tobacco—every two days as many people die in Australia as died in the Bali bombings. In spite of that, we still push the issue away for months. That is nothing short of a disgrace.
I notice that among the political donations to major political parties for the 1999 election campaign Philip Morris gave Labor $53,000, but gave only $5,000 to the Liberal Party—a pretty naked indication of which political party the company thought was going to win. Perhaps Philip Morris thought that the Liberal Party was the responsibility of British American Tobacco because that party seems to be influenced by BAT's chairman, Nick Greiner. Rothmans had $20,000 each way—$20,000 for the Labor Party and $20,000 for the Liberal Party. BAT cannot be said to have been left out. It is co-sponsoring a Star City debate between the Queensland Premier, Peter Beattie, and the New South Wales Premier, Bob Carr, tonight. Presumably a nod will be as good as a wink as they make money and the alcohol flows. Does that mean that no action will be taken on the issue of indoor smoking, particularly in casinos? Victoria has had the courage to declare smoke-free environments in casinos, but will New South Wales have the courage to do that?
I am concerned that the Premier will attend a tobacco-sponsored event in the heartland of resistance to indoor smoking control. If casinos were a smoke-free environment it would have a massive effect on the number of people who gamble at casinos, but at least it would reduce the tobacco consumption of gamblers. Such a move would have a tremendous influence on smokers' ability to quit, on the conventions of society which are immensely influential in categorising behaviour as sensible or not sensible, and on the non-smokers who have smoking inflicted on them. Last night I had dinner at the Nippon Club, but I could hardly sit there because the air was so vitiated by tobacco smoke. Those major issues must be dealt with. This bill is a very small step in the right direction. I support the bill because it does not criminalise smokers. I do not believe necessarily that criminalising practices minimises social harm. In its most simplistic form, the idea is that if something is criminal the social harm it causes will be reduced. If making a practice criminal makes it more harmful as a result of economic effects and forcing the practice underground, which is what happened with hard drugs and marijuana, members of Parliament should take a close look at the social harm caused by criminalising practices.
A ban on smoking indoors is a simple step and involves almost no cost to government. I believe a smoke-free environment in casinos will help gamblers, yet it is regarded as a problem by TABCORP and other companies involved in gambling because addicted smokers may not put as much money into poker machines. That might be a detriment for shareholders—wouldn't that be awful? The principal tenet of tobacco industry morality is that money matters and people do not. It is time that the Government stood up for the people and did the right thing by them. I support this bill and I urge all honourable members to support it. I also urge honourable members not to let the Government off the hook by accepting token legislation while it refuses to deal with the major problems in society caused by tobacco.
The Hon. IAN COHEN [3.20 p.m.]: The Greens have serious concerns about a number of provisions in the Public Health Amendment (Juvenile Smoking) Bill 2002 (No 2). I acknowledge the intention of the Hon. David Oldfield in introducing this bill, which is aimed at reducing the use of tobacco products and non-tobacco smoking products by persons under the age of 18 years. I listened with interest to the contribution of the Hon. Dr Arthur Chesterfield-Evans to debate on this bill. While the honourable member and I have similar views in relation to this issue, I ask him and other honourable members to listen to another perspective. The bill specifies that a person under the age of 18 must not smoke or purchase a tobacco product or non-tobacco smoking product—an ideal situation in the opinion of many honourable members and the Greens. It would be preferable if tobacco products were not so readily available or such a large part of our culture. For many years I have been a strong anti-tobacco and Billboard-Utilising Graffitists Against Unhealthy Products [BUGA-UP] activist.
The Hon. Dr Brian Pezzutti: I didn't know that.
The Hon. IAN COHEN: I have said many times in this House that I am an anti-tobacco activist. The Hon. Dr Brian Pezzutti must have selective hearing. I have worked with him for a period of eight years and I am disappointed that he does not listen more carefully to my speeches. The Greens feel strongly about this issue, which I do not think denigrates the sentiments expressed by the Hon. David Oldfield, who introduced this bill.
[Interruption]
Reverend the Hon. Gordon Moyes seems to forget that we are dealing with a product that is legal and accessible. We are trying to find ways to minimise the harm that is being caused by this product. This issue is somewhat different to the cannabis issue to which Reverend the Hon. Gordon Moyes irreverently referred, which I believe will only confuse what I think is a serious debate. This legislation will quasi-criminalise essentially what is a social and health issue. The Greens are concerned about the effect of contravening this legislation. Young people who presently offend and who are given a fine or a community service order cannot be warned or cautioned under the Young Offenders Act. Young people who in future are found in possession of tobacco or cigarettes will be caught under the provisions of the Young Offenders Act—an issue of great concern to the Greens.
The Greens are worried about young people and Aboriginal people getting dragged into the criminal justice system through the power of the police to confiscate tobacco products. If a police officer gives a young person a warning or a caution, that young person could be charged with offensive language and he or she could resist arrest. I understand that the Hon. David Oldfield proposes to move amendments to correct that anomaly. Young people will be dragged into the criminal justice system essentially over something that is a health and social issue. There is evidence to show that these quasi-criminal powers are used disproportionately against young people from non-English speaking backgrounds and indigenous people.
Members of the Police Force now have move-on powers to disempower certain sections of the community that have undue attention focused on them. The Ombudsman's review of police and public safety legislation found that, in relation to the move-on powers, 22 per cent of directions were given to Aboriginal people, 50 per cent of directions were given to people under the age of 17 years, and 80 per cent of directions were given to people under the age of 25. The Greens are concerned that this legislation will target—as do the move-on powers—those who tend to hang out in parks, public places and other areas. People from lower socioeconomic backgrounds, for cultural or other reasons, tend to spend a lot of time in public places. This additional power will enable police to harass young people and indigenous people. These kinds of powers rarely, if ever, are used even-handedly across the population.
Is there any evidence to show that prosecuting underage people who are found drinking in public places has led to a decrease in those people drinking? I very much doubt it. Children who are able to do these things behind closed doors—either with the sanction of their parents or because their parents do not know about it—will not be caught by this legislation. Yet they are doing the same thing as the young person on the street. That is why the Greens believe that this legislation is unfair. Education is clearly the answer to this problem. We are moving towards prohibition for a limited but important section of our population: our youth. Education will win the day on this issue. We must make it clear, through appropriately targeted advertising that appeals to young people, that it is not cool to smoke and that smoking is damaging to one's health. Some of the early anti-tobacco advertisements referred to a smoker's breath smelling like a garbage bin. That sort of advertising can have an impact on young people.
The Hon. Dr Brian Pezzutti: It gives you wrinkles.
The Hon. IAN COHEN: The Hon. Dr Brian Pezzutti, who is a smoker, made the point that smoking gives people wrinkles. That is not something about which young people would be concerned, so advertising of that nature would not have quite the same impact. I am sure that the advertising industry could come up with an effective advertising campaign—which the Greens would support—to lower the incidence of tobacco use amongst young people. We should inform young people of the devastation that is caused in developing countries through the promotion by multinational companies of tobacco products. A third of the world's forests are destroyed to enable the flue drying of tobacco products. Multinational companies prefer tobacco products to be flue dried with timber as it adds to the taste of the final product. All those things could have a positive impact on young people and encourage them not to start smoking or to give up smoking if they have already started. The Greens believe that that is a much more positive direction to follow. The draconian measures proposed in this legislation might appear to some to be mild. Honourable members would be aware that mild tobacco products are promoted. We all know about that type of advertising.
[Interruption]
I am glad that the Hon. Dr Arthur Chesterfield-Evans agrees with the misdirected concept of mild tobacco products. The bill provides for a fine to be given if a person who is believed to be under the age of 18 is smoking cigarettes or purchasing cigarettes for someone under 18 and he or she refuses to state his or her name and address, provides a false name and address, fails to produce evidence of age, refuses to give information, or gives false information relating to the identity of a person who supplied the cigarettes. In this respect, if the person is under 18 years of age, the bill creates an offence punishable by a fine.
The Hon. David Oldfield: They are all coming out.
The Hon. IAN COHEN: The Hon. David Oldfield has just advised me that those provisions will all be removed from the bill. However, the Greens are still concerned about quasi-criminalising what is essentially a social and health issue. It is not something that the Greens will support. The bill also provides a fine for anyone who purchases tobacco products for minors, and that applies to the minors themselves. The final clause specifies that if a person uses false identification to buy cigarettes, and the person is under the age of 18, that person can be fined 10 penalty, which is $1,100. That is a very serious fine for a young person, especially one of school age.
The Hon. John Jobling: It would be a serious fine for anyone.
The Hon. IAN COHEN: I acknowledge the comment of the Hon. John Jobling that $1,100 would be a serious fine for anyone, and that may well be the case. For school-age kids it is very serious, and is out of all proportion with the gravity of the crime, which affects only the person who is smoking. I think it is terrible that young people smoke, but I believe it would be totally inappropriate to introduce such a heavy fine. In summary, the Greens argue that the bill should not criminalise what is essentially a health and social problem. Young people who smoke would be brought to the attention of police. Unfortunately, I did not have the opportunity to talk to the Police Association, but I am sure that what is proposed is not the sort of job that the Police Association would like added to the weight of responsibilities of its members on the beat.
Police should not have to oversee young people smoking. This would further erode the respect that young people have for police. The Greens do not support this bill and have major concerns with it. The Greens suggest that the Government's time, energy and money would be far better spent on appropriate, well-targeted anti-tobacco smoking campaigns to encourage young people to stop smoking. If members support the bill, understandably on a superficial interpretation they will be voting against tobacco smoking. Earlier Reverend the Hon. Dr Gordon Moyes interjected, referring to the Greens' attitude towards to cannabis smoking. There is no doubt that cannabis smoking has its downsides, emotionally and psychologically, but it has other aspects and I do not seek to criminalise its use. The Greens will not take that in the wrong direction. As with drug consumption, particularly with young people, the resolution lies in education. Legal sanction has been proved not to work with drugs and it will not work with cigarette smoking. That will succeed in only creating more communication problems across the community. I repeat: tobacco smoking is a social and health issue, not a criminal issue. The Greens oppose the bill.
The Hon. Dr BRIAN PEZZUTTI [3.33 p.m.]: When presented with this bill some time ago the Coalition was not keen to support it in any way. We have now been presented with a number of amendments, some proposed by One Nation and others proposed by the Government. We are now even less supportive of it.
The Hon. Richard Jones: Why?
The Hon. Dr BRIAN PEZZUTTI: Because it is a bit of a stunt. Initially it was proposed that it be an offence for someone under the age of 18 to smoke at all. The effect of that would have been to criminalise 12 to 15 per cent of people under the age of 18 in New South Wales. Clearly that is a ridiculous proposition. One Nation is proposing an amendment to delete that provision. That is like recognising Red China! When presented with the bill, the Coalition thought that was a bit stupid, because the advice we have from the Cancer Council—
The Hon. David Oldfield: You have mixed up the bills.
The Hon. Dr BRIAN PEZZUTTI: I am talking about the Public Health Amendment (Juvenile Smoking) Bill, is that not correct?
The Hon. David Oldfield: You are talking about the first bill; the relevant bill is Public Health Amendment (Juvenile Smoking) Bill (No 2).
The Hon. Dr BRIAN PEZZUTTI: I have the second bill.
The Hon. David Oldfield: But when you were talking about the criminalisation aspects you were referring to the first bill.
The Hon. Dr BRIAN PEZZUTTI: No, the bill I have states:
A person under the age of 18 must not smoke a tobacco product or non-tobacco smoking product or purchase a tobacco product …
(2) A person who contravenes subsection 1 is not guilty of an offence, but may be given a caution.
The Hon. David Oldfield: Exactly. So where is the criminalisation?
The Hon. Dr BRIAN PEZZUTTI: Well, what about three cautions and you are out? We are not talking about a mere tap on the wrist. This is a formal process of cautioning. In a way it criminalises people under the age of 18 who smoke, and that is how the Coalition read it.
The Hon. David Oldfield: It does not criminalise them.
The Hon. Dr BRIAN PEZZUTTI: Well, for whatever reason the Hon. David Oldfield has decided to delete that provision. He too realised how silly it was. However, the bill provides that police may seize tobacco or non-tobacco smoking products. That is all very well, but can anyone see police walking down Canterbury Road, coming across a couple of kids who are smoking cigarettes and saying, "Give me your smokes."
The Hon. David Oldfield: They do it for kids who are drinking, Brian.
The Hon. Dr BRIAN PEZZUTTI: Exactly, and that is a good point. The Coalition believes that all the Hon. David Oldfield has done is to adopt the provisions of the alcohol prohibition legislation, inserting the word "tobacco" for the word "alcohol".
The Hon. Richard Jones: What's wrong with that?
The Hon. Dr BRIAN PEZZUTTI: The two situations are completely different. The reason for alcohol prohibition is that alcohol not only gets kids into strife; it can actually kill them.
The Hon. David Oldfield: You mean they cannot kill themselves smoking?
The Hon. Dr BRIAN PEZZUTTI: They do not kill themselves by smoking until some years later. If a young person were to drink a significant amount of alcohol, he or she could die immediately. It happens regularly. They get hypoglycaemic, they fit, they inhale, they die. That is what happens. That is why the Act was written in that way, in the strongest possible terms, to prohibit the sale and consumption of alcohol by young people. They are particularly vulnerable to the pharmacological impact of alcohol. I realise that a couple of cigarettes may be harmful to the health of young people, but smoking the cigarettes today will not kill them today. For whatever reason, the Hon. David Oldfield has deleted that aspect from the bill. He must have realised that it was pretty silly.
The Hon. Richard Jones: It might have been pragmatism.
The Hon. Dr BRIAN PEZZUTTI: Well, whatever it takes. Subsection (3) of new section 58 states that tobacco and non-tobacco products may be seized from a person, even though the person is under the age of criminal responsibility—and that is 10 or 12 years of age. The Hon. David Oldfield will seek to delete proposed subsections (7) and (8). They provided that a police officer who reasonably suspected that a person under the age of 18 was smoking could take the name and address of the person and ask him or her to go to a police station at a reasonable time. The Coalition took umbrage at that section. Obviously, the Hon. David Oldfield realised that such a provision would get right up everyone's nose and work against stopping young people from smoking. Young people would have been driven away from law-abiding behaviour if an officer with a jack-boot attitude could require them to give up their names and addresses and go to a police station, et cetera. The Hon. David Oldfield will seek to delete that provision in Committee.
The Hon. David Oldfield: Are you telling me that you are concerned that I have taken that out of the bill?
The Hon. Dr BRIAN PEZZUTTI: No. Coalition members saw only the bill; I was not aware of the Hon. David Oldfield's foreshadowed amendments until I entered the Chamber today. The Opposition decided—we work as a team; we consult each other and we consult our constituents—that this is not good legislation. The Hon. David Oldfield introduced the Public Health Amendment (Juvenile Smoking) Bill 2002 (No 2) but then realised at the last moment that it had serious problems and is now seeking to amend it. Subsection (9) of new section 58 states:
The regulations may make provision for or with respect to … the procedure to be followed as regards the seizure of tobacco products.
That is terrific. Subsection (10) states:
A person who sends a person under the age of 18 years to premises where tobacco products or non-tobacco smoking products are sold for the purpose of purchasing any such product is guilty of an offence.
That is the only new provision. It is already an offence for a shopkeeper to sell a tobacco product to persons under 18 years: I think the fine for that offence is $10,000 or perhaps it is $5,000. In any event, it is an offence for a shopkeeper to sell a tobacco product to a person under the age of 18 years. That is why we have proof-of-age cards and the like. The only brand-new provision introduced in this brand-new bill is that relating to the offence of sending a person under the age of 18 years to buy a tobacco product. Anyone who sells tobacco to a person under 18 years is guilty of an offence—that is quite proper. But under this bill parents who send their son or daughter to the shops to buy them some smokes—
The Hon. David Oldfield: The Government will amend that provision; it will be deleted.
The Hon. Dr BRIAN PEZZUTTI: The Government's amendment does not affect that provision.
The Hon. David Oldfield: Yes, it does.
The Hon. Dr BRIAN PEZZUTTI: The Opposition will almost certainly support any amendment of the Government to delete that provision. So we are left with provisions that allow a tobacco product to be seized by the police and procedures that ensure people do not sell tobacco products to their mates. New section 58A is about purchasing tobacco products or non-tobacco smoking products on behalf of minors. That is the only provision with any meat that will remain in the bill. It states:
A person who purchases, on behalf of a person under the age of 18 years, a tobacco product or non-tobacco smoking product from premises where such products are sold is guilty of an offence.
So if parents send their 12-, 13- or 14-year-old to the shops to buy their smokes, the shopkeeper who sells cigarettes to the child will be fined $5,000. Neither the child nor the parents will be criminalised in that case. But if mum buys smokes for her 16-year-old daughter, she will be guilty of an offence that carries a $2,000 fine. However, it is a defence to prosecution for that offence if the person on whose behalf the tobacco product was purchased is over the age of 14. Young people generally start smoking between 14 and 18 years, not before 14.
The Hon. David Oldfield: Between 12 and 16 years of age.
The Hon. Dr BRIAN PEZZUTTI: I accept that, but most young people start smoking after they turn 14. In the example that I have given, the mother would say, "My daughter is over 14; go away" and there would be no offence and no fine. The bill should state that it is an offence to buy tobacco products for persons aged under 14 years. Why not say that, for heaven's sake? Why not simply say it is an offence for someone over the age of 18 to buy tobacco products for somebody under the age of 14? There is no problem with that statement—it fits with the bill's first pronouncement, "Thou shalt not smoke under the age of 18". But instead the bill states boldly that a person who buys a tobacco product for someone under the age of 18 is guilty of an offence and will be fined $2,000 unless the recipient of the tobacco product is over the age of 14. The bill has been watered down and demolished. The Coalition did not like the bill it was shown. We thought it was pretty hopeless and a bit of a stunt. The bill offers another defence against prosecution if:
… at or before the time the relevant product was purchased there was produced to the defendant documentary evidence that … the person was at least 18 years of age.
So if a 12 -year-old can produce a card that states, "I am over 18" there is—
The Hon. David Oldfield: You're missing the point.
The Hon. Dr BRIAN PEZZUTTI: No, I am not. That is the only part of the bill remaining that contains anything new, and all it says is, "Thou shalt not buy tobacco products for anybody under the age of 14." That is an application of the very old Crimes Act provision relating to the offence of having sex with minors. What is left? The Government plans to amend the bill to remove the new next section—new section 60. And that is it! The Opposition cannot support this legislation. It is poorly drafted.
The Hon. John Jobling: It will create a whole raft of bureaucracy.
The Hon. Dr BRIAN PEZZUTTI: Indeed. The bill raised many expectations and then failed to fulfil them. It is without doubt nothing more than a stunt and will do absolutely nothing to reduce juvenile smoking, which is said to be the main aim of a bill that is entitled the Public Health Amendment (Juvenile Smoking) Bill (No 2). The Cancer Council has advised that the bill will do absolutely nothing to reduce the incidence of juvenile smoking. We need public health education programs targeted specifically at juveniles. In the past few years we have reduced dramatically—and Reverend the Hon. Fred Nile has been very helpful in this regard—the number of men under the age of 18 who smoke. However, it is worrying that the number of female smokers over the age of 18 is increasing dramatically. That is a real shame.
The Hon. Richard Jones: Why do you think that is?
The Hon. Dr BRIAN PEZZUTTI: I really do not know. The message is out there that smoking has particularly deleterious health effects for young women, especially if they fall pregnant. Many socioeconomic changes affect young women. Society has changed a great deal. For some reason in the late 1980s young men became more health conscious and the number of male smokers under the age of 18 decreased—that trend was repeated in the United Sates of America. However, more and more women aged 15, 16, 17 and 18 began to smoke. It is common to see them standing smoking on the footpaths of Sydney streets.
The Hon. David Oldfield: So do you think women have let themselves go, Brian?
The Hon. Dr BRIAN PEZZUTTI: No, I am not saying that. It is just something that happened. The Opposition looked forward to considering a bill that would reduce the number of juvenile smokers but this bill will be of no help in that regard. Anybody who attended the launch by John Fahey and others of the initiative "Cutting through the smoke" will know that organisations such as the Cellblock Youth Health Centre, the Central Coast Youth Health Service, the Cancer Council, the American Cancer Society and Sydney university advise that we desperately need an adolescent smoking dependency program, a public education program and a strong, hard-hitting anti-smoking message delivered to young people by young people. The Opposition will not support this bill, and we will consider the amendments in Committee.
The Hon. RICHARD JONES [3.48 p.m.]: I cannot support the Public Health Amendment (Juvenile Smoking) Bill as it stands.
The Hon. Dr Brian Pezzutti: Of course you can't; it is a nonsense.
The Hon. RICHARD JONES: It is not a nonsense; it is an attempt by the Hon. David Oldfield to address the problem of teenage addiction to the most dangerous drug in society. It is an honest effort, if a little draconian. I agree with the Hon. Ian Cohen that we do not want to criminalise young people for undertaking an activity in which adults can indulge freely. As one of the original tobacco campaigners in 1965, 1966 and 1967 I have wrestled with the problem of cigarette smoking, a practice that killed both my parents and many of their friends, who died in their 40s, 50s, 60s and sometimes younger. A whole generation died early. Fortunately, that does not happen now as very few older adults smoke. Smokers start to get addicted as teenagers at 12, 13 or 14 years old and then most of them give it up.
The Hon. Dr Brian Pezzutti: They usually give it up when they are about 25.
The Hon. RICHARD JONES: Yes, but tobacco is a pernicious and addictive drug. I have not tried heroin, but I understand that it is more difficult to give up tobacco than it is to get off heroin or any other drug. I have known some very strong people who have tried to give up smoking for many years but they have not been able to. This bill is a valiant effort to deal with this appalling drug, tobacco, which kills approximately 18,000 people every year in Australia, approximately 50 people a day. That is not necessarily a definitive figure but it does represent a lot of people. Smoking kills more people in Australia than the total number killed by drink, drugs, murder, suicide, road crashes, rail crashes, air crashes, poisoning, drowning, fires, falls, lightening, electrocution, snakes, spiders and sharks—events which make headlines in the newspapers. About two people every hour of every day die from smoking. That fact should make headlines, but it does not. Of every 1,000 young Australian males who smoke, statistics show that on average one will be murdered, 15 will be killed on the road and 250 will be killed prematurely by tobacco.
[Debate interrupted.]
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