Mark Butler’s flawed vaping legislation begins to unravel

Posted on September 30, 2024 By Colin

A SENATE COMMITTEE has issued a notice to disallow the Vaping Reforms Bill, formally known as the Therapeutic Goods Legislation Amendment (Vaping Reforms) Regulations 2024. The Minister has been asked to respond

If Mark Butler's response to the Committee’s concerns is deemed unsatisfactory, the Committee may recommend that the Senate either disallow or amend the legislation

These regulations, passed on 26 June 2024 following last-minute amendments and with the support of The Greens, have now raised significant technical concerns that the Committee (The Senate Standing Committee for the Scrutiny of Delegated Legislation) is seeking clarification and corrections from the Minister.

The regulations place restrictions on the importation, domestic manufacture, supply, commercial possession, and advertisement of vaping products. They also define commercial quantities, introduce new offences and penalties, and lay out transitional arrangements.

The latest regulations were the final part of the Minister’s plan to lock in a strictly medical model for vaping, which so far had been a resounding failure. The final amended legislation delivered a pharmacy-only model, which is also widely predicted to fail.

Key concerns raised by the committee

• Coercive powers: The inclusion of unreasonably coercive powers within the regulations.
• Unclear wording: Multiple drafting errors and ambiguities.
• Regulatory oversight: Uncertainty over whether the Attorney-General’s Department's Guide to Framing Commonwealth Offences was followed during drafting.
• Rights and liberties: Concerns about the protection of personal rights and liberties, including privacy.
• Regulation vs. primary legislation: Questions as to why certain matters have been dealt with in the regulations instead of the primary legislation.
• Lack of clarity: Unclear rationale for some elements of the regulations, and whether all provisions are necessary.

 Sloppy legislation

 The sad saga of Australia’s vaping legislation continues to unfold, now with the added issue of sloppy legislative detail. Not only is the intent of the legislation fundamentally flawed, but the details are negligent and rushed amendments to secure the Greens' support have likely also introduced significant errors.

Why have so many serious concerns been raised? Has the hasty drafting, driven by political negotiation, compromised the integrity of the legislation? The answer seems increasingly clear as this flawed piece of legislation begins to unravel.

Perhaps it is now time for the Minister to rethink this whole flawed piece of legislation and start again with the proven adult consumer model for vaping that is established in other Western countries.

Documents

Report from the Committee. Delegated Legislation Monitor 10 of 2024. 11 September 2024

Senator Deborah O'Neill's speech to the Senate. 11 September 2024

Disallowance notice, 17 September 2024