Sydney Health Law Research Affiliate’s E-cigarettes Proposal Adopted by Commonwealth

20 December 2023
Advancing public health with new legislation
Sydney Health Law research affiliate Neil Francey’s proposal for an Australian E-cigarettes Commissioner has been adopted by the Commonwealth Parliament in its new flagship legislation, the Public Health (Tobacco and Other Products) Act 2023.

The “Tobacco and Other Products Act” is intended to modernise, streamline and strengthen existing Commonwealth controls on tobacco products.

It also bans e-cigarette advertisements and sponsorships. 

The new Act will replace two existing Commonwealth Acts, the Tobacco Advertising Prohibition Act 1992 (Cth), and the Tobacco Plain Packaging Act 2011 (Cth), and accompanying regulations. 

The new controls will be phased in from 1 April 2024 to 31 March 2025.

Writing in the Sydneyhealthlaw blog, on 18 May 2023, Mr Francey observed that e-cigarette regulation currently involved twenty pieces of legislation and regulatory bodies, including:

  • Commonwealth Department of Health and Ageing
  • TGA
  • State/Territory Health Departments
  • ACCC + State & Territory consumer affairs/fair trading bodies
  • Australian Border Force/Home Affairs
At present there is no coherence in legislation and no co-ordinated co-operative enforcement approach to effectively address the problem of spiralling nicotine addiction due to e-cigarettes.
Neil Francey

Neil Francey

In his blog post, Mr Francey proposed the creation of an Australian E-cigarettes Commissioner, supported by the Office of the Australian E-cigarettes Commissioner, to co-ordinate enforcement activities by regulatory agencies at State, Territory and Federal levels.

The original exposure draft of the Public Health (Tobacco and Other Products Act) 2023 didn’t contain any proposal for an e-cigarettes Commissioner.

However, the final version of the legislation, as passed, inserted Chapter 6A.2, which creates the Illicit Tobacco and E-Cigarette Commissioner (“ITEC”) within the Australian Border Force.

The ITEC is to be appointed by the Minister for Home Affairs. 

The ITEC’s role includes:

  • supporting the development of national strategies for “enforcement of illicit tobacco and e-cigarette laws”,
  • "advising on the development of new laws relating to trade in illicit tobacco and e-cigarette products”; and
  • “providing administrative and governance support for any intergovernmental responses to the trade in illicit tobacco and e-cigarette products in Australia”.

The ITEC is also charged with providing a range of reports.  These include:

  • law enforcement reports on the illicit tobacco and e-cigarette trade in Australia;
  • reports on the value of tobacco excise and customs duties lost as a result of illicit tobacco and e-cigarette trade, and
  • reports on enforcement statistics, including the value of seizures of illicit tobacco and e-cigarettes, and related arrests.

The legislation envisages that the ITEC will have a staff to assist him or her, drawn from the Australian Border Force. 

The ITEC may also enter into arrangements with State and Territory governments to enable State and Territory officials to perform services related to the ITEC’s functions.

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