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The Public Health Amendment (Tobaccofree Generation) Bill 2014 was tabled in the Tasmanian Parliament in November 2014 by an Independent MP Hon. Ivan Dean. The Bill proposes to phase out the sale of tobacco products to any person born after the year 2000. The Bill is a measure to curtail supply; smoking would not be criminalised and there would be no penalties for using or possessing tobacco. The Bill was referred to a Parliamentary Committee in March 2015. It has been debated and scrutinised for well over a year. The committee was asked to look at the workability and practicality of the Bill.

The Committee, brought down its reportin July 2016, making the following key findings:

There does not appear to be any significant legal impediment to the operation of the Bill in delivering the policy intent.

The Parliament should take a measured and cautious approach in considering a Bill which could limit or ‘extinguish’ fundamental rights relating to age, equality and liberty.

The Bill raises some practical legal issues in relation to online sales and the impact of the Bill on tourism/tourists. wholesale jerseys from china The proposer of the Bill may wish to give consideration to amendment of the Bill to avoid negative impacts on tourism.

Should the Bill be supported, appropriate education programs would be required to effectively implement the Bill. This would incur a cost and would be a matter for the Government of the day.”

A number of submissions were made including one from Lois Ireland,a retailer, who said:

“I made a conscious decision to stop gaining a profit from sales of a product that I knew to be highly addictive and that was causing long term health issues with those who I knew personally as members of my community. I knew they would go elsewhere to purchase their cigarettes but I did not wish to be further implicated in their poor health choices.

As a result, I fully endorse any moves that make it more difficult for young people to take up/continue smoking, despite any effects such measures may have on businesses. To be honest I’d be happy to see a ban on all sales think how much lower our hospital costs would be!”

Other submissions were made by the tobacco industry and their front organisations including the Alliance of Australian retailers (AAR) which was set up to lobby against plain packaging but seems to have extended its reach. The UK University of Bath website has exposed AAR as a tobacco industry front organisation.

The Cancer Council of Tasmania (CCT) carried out two surveys of public opinion on smoking matters including questions on TFG. The CCT survey shows that 75% of Tasmanians support the idea of a tobacco free generation, an increase on previous surveys.

WILL prevent the sale of tobacco products to persons born since the year 2000, that is, members of the tobacco free generation.

NOT prevent members of the tobacco free generation from smoking, or attempting to purchase tobacco products. Members of the tobacco free generation would not incur any penalties for smoking.

The Tasmanian Anti Discrimination Commissionerhas written to the Parliament to advise that the Bill does not constitute unlawful discrimination.

A number of lawyers and an international human rights expert also provided reports and advice to the Committee. Dr. Gogarty from the University of Tasmania said there was no legal impediment to the Bill, but expressed concerns about age discrimination and liberty. A comprehensive response and rebuttal to Dr. Gogarty’s advice was provided by Barrister Neil Francey, who says that Dr. Gogarty abandons a strict legal approach and adopts an “extreme libertarian” approach.

Ethicist Dr van der Eijk added, relating to the absence of a right to smoke. “It is highly unlikely that, given the toxic and addictive nature of smoking, it can be defended as liberty right children’s rights.” Also, “Smoking can also not be defended as a privacy right.”

Eminent international Professor of Law, and Professor of Public Policy and Urban Affairs in Boston USA, Professor W. Parmet also commented,

“Critically there is no fundamental right to exercise all of one choices without any, even indirect, legal hurdles. If that were the case, cigarette taxes, which also make It harder for some people to exercise their choice to smoke by raising the cost of cigarettes would also violate individual’s fundamental rights. Indeed, all public health laws would violate someone fundamental right, as all impose some road blocks on individual choice. This proposal has been met with a deluge of criticism in Tasmania, as all major local health groups support the TFG proposal and there is immense community support. Professor Simon Chapman criticised the raising of smoking age to 21 proposal as a “symbolic political gesture”.

The TFG Bill may be debated in the Legislative Council in August 2016. However, the conservative Liberal governmentremain opposed to the TFG, and have implemented no new initiatives on tobacco control since being elected over two years ago.

The decision on 19 May 2016 by the High Court of Justice of England and Wales to dismiss the legal challenges brought by the four multinational tobacco companies against the UK tobacco plain packaging legislation was a major blow to the industry. The 386 page ruling addresses a wide range of legal claims and evidence; together with lessons learned from the industry failed attempts to overturn Australia 2012 plain packaging legislation, it provides an important resource for countries planning to introduce similar laws.

The McCabe Centre for Law and Cancer, a joint initiative of Cancer Council Victoria and the Union for International Cancer Control, has prepared a paper on the UK decision which draws out eight key aspects likely to be of widest relevance to litigation and policy development in other jurisidictions. Included in the aspects of the ruling which are explored and analysed are: the intent and limits of the laws, the conflicting interests of the tobacco industry and public health, the complementary nature of comprehensive tobacco control measures, and the relevance of the World Health Organisation Framework Convention on Tobacco Control.

Some notheworthy points in the analysis:

Court points out that tobacco companies overstate the restrictive effects and implications of standardised packaging legislation (page 4)

Court noted that the interests at stake in the most irreconcilable of ways (page 4)

Court notes that not all rights and interests are of equal value or worth. The protection of public health is one of the highest of all public interests. Health is a fundamental right (page 5)