Ms PATTEN (Northern Metropolitan) — I rise today to speak about the Tobacco Amendment Bill 2016. The Australian Sex Party believes that governments should treat adults as adults and children as children. I think this bill in some ways goes towards treating children as children, but I do not think it goes many places in treating adults as adults.
I understand the outdoor smoking issues. I am not going to discuss that part of the bill. I believe that we all have common sense and, as Mr Melhem said, we all are sensitive to this. If members of this house were to be outside smoking a cigar, they would do it so as not to cause offence to anyone else. I think we have all grown to be polite in that way and polite in our behaviour, not only with smoking but with a whole range of issues.
I particularly want to go to part 4 of the bill, which is around what the bill calls e-cigarettes. For a start, these are not cigarettes. These products contain no nicotine, these products contain no tobacco and, frankly, these products look far more like an old walkman or an old cassette player than they do a cigarette, so in my contribution I would actually like to call them personal vaporisers because that is what they are. I appreciate Ms Wooldridge’s contribution, because she did raise a wide range of submissions that we have all received from a broad range of community organisations and medical associations.
It was a long time ago now that we had our first briefing on the Tobacco Amendment Bill. I know the government is frustrated by the time it takes us to go from that initial briefing when the bill is normally guillotined in the other house to the time we get our briefing on the bill. I as a crossbencher got an excellent briefing from the department, but I was somewhat surprised when the department handed out material from Cancer Council Victoria and Quit Victoria as the evidence for this bill. There was nothing from the Royal Australasian College of Physicians; there was nothing from any other organisation. I am somewhat troubled by the government handing out information from a non-government organisation as the grounds for arguing their case. I would like to see the government arguing their case on its own merits.
The fundamental problem with this bill is that we are talking about a product that contains no nicotine and no tobacco, and yet this bill will treat it as a tobacco product. This bill says, ‘For the purposes of the Tobacco Act, e-cigarettes or personal vaporisers that contain no nicotine and no tobacco will be treated as tobacco products’. I do not get that; it does not make any sense to me. I have learnt a lot in this place about the vagaries of legislation and how we somehow need to fit things into certain boxes, but a product that contains no tobacco is now, for the purposes of the Tobacco Act 1987, to be treated as a tobacco product. I think this is actually a world first. I am old enough to remember Claytons — ‘It’s a Claytons’. I remember the ‘I can’t believe it’s not butter’ ads. This is exactly the same thing. This is not a tobacco product; this is not a nicotine product — yet we are going to treat it as one.
And we will go a little bit further: we are actually going to defy the fundamentals of physics and science in this bill. I think this is probably a first for this house. We are going to call ‘vaporising’ smoking. I know we all have personal devices if we want to look up what smoking is. Smoking is the ignition of a product. You have to combust something to make smoke. That is Physics 101. These products are vaporisers; these products create steam. It is not smoke. It might look to the uneducated person like smoke, but we are all educated in this place and we understand that smoke is not steam. What comes out of our kettle is not smoke. Our water is not on fire when we are boiling the kettle. I assure you: our water is not on fire when we boil our kettle; it is steaming. That is what e-cigarettes are doing: they are steaming. This is not ignition.
Fundamentally to now say that vaporising is smoking is completely flawed. We discussed this just some months ago when we debated the Access to Medical Cannabis Bill 2015. We said, ‘All right, for the Access to Medical Cannabis Bill we will understand that smoking does not include vaporising’. We said that very clearly in section 40(3) of the Access to Medicinal Cannabis Act 2016. It says that smoking does not include vaporising — but today it does. This definition is not only at odds with the basics of science; it is at odds with every other jurisdiction that has introduced legislation in this area. New South Wales, for example, introduced such legislation barely a few months ago. In fact I wish that we had looked at their legislation, because again they specifically noted that vaping is not the same as smoking — and it is not. So the term is completely flawed.
I also want to again reiterate that we are talking about products that contain no nicotine and no tobacco. I know Ms Hartland mentioned the Australian Competition and Consumer Commission (ACCC) in speaking about products that the ACCC found were illegally containing nicotine. That is against the law; it is illegal to sell a product that contains nicotine unless it is a cigarette or a cigar or a tobacco product. They are fine. If you sell a product that is not tobacco that contains nicotine in this country, it is currently illegal. In Victoria it is currently illegal, and we have plenty of laws to clamp down on that. This bill does not add to that.
I think the second-reading speech and certainly Ms Wooldridge’s, Ms Hartland’s and Mr Melhem’s contributions talked about how this bill was a cautious bill against harmful products and they said that the science was out and that ‘Until the science is in, we will take a very cautious approach’. I understand that, and I guess innately governments must be conservative. I am not conservative — and frankly the Greens, I think, are being very conservative on this — but I take a harm minimisation approach. In the 1990s we knew heroin was not good for people, but we knew that giving them clean needles was good. We knew that people taking heroin was not good, but we knew that using a harm minimisation approach was good, and the Royal College of Physicians strongly supports my position.
I met with the cancer council and I met with Quit, and I put to them, ‘If I was to hand you a cigarette or a vaporiser, which one would you take?’.
Ms Lovell — None.
Ms PATTEN — Thank you; you may take none. If you had no choice, you would take the one you knew had less harm, and we know that vaporising has less harm than combustible smoke. We know that, but this bill does not recognise this at all.
In saying this, I then go to my great concern with this bill. I am interested in the government’s amendments to this bill that do look at the situation of retailers, because we are treating a non-tobacco, non-nicotine product as a tobacco/nicotine product. We are saying that a vaporiser — or, as it is erroneously called in this legislation, an e-cigarette — should be treated the same as a tobacco product and therefore if you want to sell this product, you must sell it like you were selling a cigar. You must sell it from inside a white cupboard — you cannot display it, you cannot discuss it and you cannot talk about it. Under this bill, while in certain circumstances retailers will be able to verbally discuss the product, they will not be allowed to display it except for opening the cupboard to show the product that contains no nicotine and contains no tobacco. They will be able to do that at the request of the customer.
I know that you have all received a number of emails from people, and I know Ms Hartland criticised some of the emails that she had received, saying that the people who sent them obviously did not understand the situation and that they needed to get their facts and probably their spelling correct, going by this. But I got some really heartfelt emails from people who said, ‘Look, I’ve been trying to give up smoking, and nothing has worked for me, and I have found that these products have worked for me’. That was what I heard. I did not see a concerted campaign, actually; I saw a whole bunch of people writing a whole bunch of different emails, telling me their personal stories about how that had helped them.
Business interrupted pursuant to standing orders.
Sitting extended pursuant to standing orders.
Ms PATTEN — Currently in Victoria we have a number of businesses that are displaying these products, discussing these products and talking to their customers about these products, and this bill in its current form will actually prevent them from doing that. To make matters even worse, the only place you will be able to openly display, discuss and demonstrate these products will be in a tobacconist — in a specialist tobacconist store — where 80 per cent of their product is tobacco. These will be the places where someone wanting a product that is possibly going to help them quit smoking will acquire them: tobacconists. This just does not make sense.
We want people to learn the correct way to use these devices. Again, may I just say these devices are devices that you plug into 240 volts, and then you put them into your mouth. I would say that from a safety perspective I would like people to have some information about how to use these products safely. I do not want people just buying them online and buying them in an unregulated market.
I would support this bill if it went to regulating these products, ensuring that the juices that these products use were regulated and that we knew the ingredients of these products — unlike the tobacco products that we openly sell. We have no idea of the ingredients in a cigarette. Apart from the tobacco, we have no idea of the chemicals in it. We have no idea of the e-cigarette juices, and this bill will not give us any more information about that. This bill will not enable us to regulate and inform and educate and control and ensure these devices are as safe as possible.
I will say it again: 240 volts is what we charge these products with, and then we put them in our mouths. This is a product that we need to provide safety for, and I would have hoped that this bill would have gone this way. The Australian Competition and Consumer Commission (ACCC) has highlighted that this is a completely unregulated market. Ms Hartland and Ms Wooldridge both noted that the ACCC had found a lot of unregulated product out there that contained not only nicotine but a whole bunch of dangerous substances. This bill does not help us in regulating that.
As I say, all of our inboxes have received responses from so many people talking about this. I just want to capture one:
We are simply people who have been unable to quit smoking except by vaping. We have been shut out of discussions. We are not opposed to sensible, proportionate regulation, but this heavy-handed blunt bill is not sensible or proportionate. Unintended consequences will be the result of not having a proper consultation that includes the main stakeholders, who are us, the users, as well as tobacco control and public health experts who have a more open-minded view.
I note that Ms Hartland did speak about a UK study, but Ms Wooldridge and I have both read the Royal Australasian College of Physicians report on this, and I know that all of you have received information from the Royal College of Physicians about their substantial work in this area.
I am not saying that these products are safe. I am saying that from a harm minimisation perspective these products should be allowed and they should be regulated. They should not be treated as tobacco products, because they are not tobacco products. They should not be treated as products that emit smoke, because they do not emit smoke. They emit a steam, a vapour.
I do have a number of amendments to this bill.
Australian Sex Party amendments circulated by Ms PATTEN (Northern Metropolitan) pursuant to standing orders.
Ms PATTEN — This is quite a sensible and small amendment that has been circulated. In looking at the definition of smoke, there are a number of new products coming onto the market that are about harm minimisation. A product that is available in probably every other country, bar Australia, is a product whereby tobacco is heated — it is not ignited; it is just heated. This was not included in the bill. I think this was possibly just an oversight in the drafting — that is, that ‘smoke’ should include ignited or heated tobacco product.
I am referring to the second of my original amendments, which has not been circulated due to a misunderstanding; however, it is a misunderstanding that I am quite happy to accept. My original second amendment was around specialist e-cigarette retailers. So, rather than forcing people who wanted to purchase a vaporiser into — —
The ACTING PRESIDENT (Mr Finn) — Order! Ms Patten, just for the benefit of the Chair, the second amendment that you are referring to that has not been distributed, are you going ahead with that amendment?
Ms PATTEN — At this stage, no, I will not. I think there was just a slight misunderstanding with the table office.
My second amendment was to create a special category of specialist e-cigarette retailers, but I understand that the government has also put out an amendment that largely captures what I was trying to achieve in my original second amendment. I am happy to accept the government’s position as a fulsome compromise in this area and that the government’s amendments will allow for specialist e-cigarette retailers to display and demonstrate the products. It is a good compromise.
However, this bill still is fundamentally scientifically flawed. Smoking is smoking, and steaming and vaporising is another thing. I am all for the protection of children, and I am all for the protection of people from second-hand smoke; however, from the information that we are receiving we know fundamentally that these products, from a harm minimisation perspective, are products that we should not be trying to ban and restrict. We should be trying to enable people who are going through that struggle. I know that there are many people in this chamber who have struggled to give up the very harmful habit of smoking. As I say, a vaporiser is a product that contains no nicotine and no tobacco and does not ignite anything. Frankly, I think it is a product that we should be promoting. Other countries are promoting it.
I note Ms Wooldridge’s amendments in regard to making sure that these products are not attractive to children, and I totally agree with this. I would like to see these products restricted to age-restricted venues. I would like to see tobacco restricted to age-restricted venues, but I think Woolworths and Coles have got another say about that. While this bill goes some very positive ways in the outdoor smoking area, I do believe that we are possibly missing some opportunities in regard to personal vaporisers, where we are seeing other countries — New Zealand, the US, the UK, Canada — going down a very different path to us; most countries are going down a different path. So I would hope that we would take a very rational and sensible approach and enable adults who choose to use this product as a harm minimisation product to have access to this product. I look forward to speaking more about this in committee.