Tuesday, 12 November 2024

Bills

Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024

Introduction and first reading

Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:04): I ‍move:

That I introduce a bill for an act to amend the Tobacco Act 1987 to establish a licensing scheme for tobacco retailers and wholesalers and make related and other amendments, to make consequential amendments to the Confiscation Act 1997, the Drugs, Poisons and Controlled Substances Act 1981 and the Spent Convictions Act 2021 and for other purposes.

James NEWBURY (Brighton) (12:05): I do note the coalition will not be opposing the leave, which the government will seek to introduce the bill, but it is worth noting that this is now the third bill this year that the government has brought into this place without any notice. This has been such a rush that the Parliament has not even had time to put it on the notice paper in the proposed government business program for the week. Only last week the member for Ovens Valley tried in this place to take action on behalf of the coalition on this issue, and at that time 108 tobacco outlets had been firebombed. This is a serious issue in the community. Since then, when the government declined and blocked the opportunity of the member for Ovens Valley to move the bill, there have been –

Members interjecting.

James NEWBURY: This is not a joking matter for the government. There have been two more firebombings – two more – and had the government taken the coalition’s leadership two weeks ago, maybe they would not have happened. The coalition will provide leave on the second reading, but it is important to note that, when the coalition sought to act on this before those two firebombings, the Labor Party opposed it.

Sarah CONNOLLY (Laverton) (12:07): Quite an expected audition, again, from the member for Brighton about this matter. This is an incredibly important bill that has been brought before the house. Those opposite would want to remember there was an inquiry into this matter not so long ago. I would suggest that you go and read it. I would also suggest that you check –

Members interjecting.

Sarah CONNOLLY: You go ahead and check how many members on your side turned up to public inquiries to listen to what the community had to say on this matter, particularly in regional Victoria – Shepparton, in fact. This is an incredibly serious matter that the community wants to see real action and real change taken on. That is exactly what this bill is about. Those opposite have proved themselves, once again, as nothing but blockers – blockers to everything that matters to the people of this state, time and time again.

Members interjecting.

Sarah CONNOLLY: The confected outrage from those opposite is absolutely extraordinary, because not one of them could be bothered to turn up except for, I have to say, Mrs McArthur – who would be the only subject matter expert on this matter – in the other place, who turned up to represent those opposite. What a disgrace they are to stand here in this place and talk down this bill and talk down the importance of this bill.

James Newbury interjected.

Sarah CONNOLLY: That is not wrong, member for Brighton. We know that you tend to block everything in this place. That is why you sit on that side of the chamber and we sit on this side of the chamber. The Victorian community know they can rely on Labor and this side of the house to go on and get things done. This is an incredibly important bill before the house, and I am very glad that the member for Brighton has said that they are not going to oppose this bill. You have had, as you said last sitting week, plenty of time to look at and investigate this matter and see what matters to real Victorians. I just have to say as chair of the Public Accounts and Estimates Committee that it was a shame that those opposite did not feel the need to participate in any depth during the public hearings and inquiry that recently took place. I would suggest that they go ahead and read the report that was tabled in this place not so long ago. This is a really important bill before the house.

Members interjecting.

Sarah CONNOLLY: I would say, through the Chair, to the Leader of the Opposition that he should go and consult with one of his mates in the other chamber, Mrs McArthur. She is the subject matter expert in your party. It is an absolute farce, the confected outrage from those opposite in relation to this bill. This side of the house, including me, cannot wait to get on and debate this bill as it comes forth. The Victorian community knows that we need to do it. It is a great bill before the house, and I really look forward to hearing the minister talk further about it. It may be shocking for those opposite to go ahead and read the facts, but I would suggest in good faith that they go and talk to Mrs McArthur, the subject matter expert of the Liberal Party in the other place.

Motion agreed to.

Tim McCURDY (Ovens Valley) (12:11): I request a brief explanation of the bill.

Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:11): The Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024 will amend the Tobacco Act 1987 to establish a tobacco retailer and wholesaler licensing scheme; strengthen offences, enforcement and compliance provisions; repeal provisions relating to vaping goods in line with the Commonwealth’s ban on the retail sale of non-therapeutic vaping goods; and make consequential amendments to other acts to support the functions of the scheme and regulatory enforcement activities.

Read first time.

Melissa HORNE: I move, by leave:

That this bill be read a second time immediately.

I do so under standing order 61(3)(c).

Motion agreed to.

Statement of compatibility

Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:16): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

This Bill:

• amends the Tobacco Act 1987 (the Act):

• to establish a licensing scheme for tobacco retailers and wholesalers;

• to repeal provisions relating to e-cigarettes and specialist tobacconists; and

• to provide for forfeiture of prohibited products; and

• makes consequential amendments to the Confiscation Act 1997 (Confiscation Act), the Drugs, Poisons and Controlled Substances Act 1987 and the Spent Convictions Act 2021 (Spent Convictions Act).

The purposes of this Bill are to:

• safeguard the suitability of licensed retailers and wholesalers of tobacco products;

• promote and enforce retailer and wholesaler compliance with controls on the lawful sale and promotion of tobacco products under the Act; and

• uphold the integrity of the tobacco retailer and wholesaler licensing scheme by deterring unlawful conduct.

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are:

• The right to privacy and reputation (section 13);

• The right to freedom of expression (section 15);

• The right to property (section 20);

• The right to a fair hearing (section 24);

• The right to the presumption of innocence (section 25(1)); and

• The right not to be tried or punished more than once (section 26).

Licence application processes

The Bill establishes a tobacco business licensing scheme to regulate the lawful supply of tobacco products. Accordingly, new Part 3AA of the Act, inserted by clause 8 of the Bill, sets out the application processes for obtaining, renewing, varying, relocating, and transferring a licence. Licence applications must contain prescribed particulars, such as specified details of the applicant’s associates, which includes prescribed relatives. The Regulator may additionally request that the applicant provide a criminal history check and any other documents or information relevant to assessing the suitability of the applicant to obtain, relocate, transfer and renew a licence (new sections 34A(1)–(3)), 34H(2)–(4), 34I(2)–(4) and 34ZS(2)–(4)).

Division 6 of Part 3AA sets out the process by which the Regulator must determine licence applications. Before granting or refusing a licence, relocation, transfer, variation or renewal application, the Regulator may conduct inquiries with government agencies in Victoria or in other Australian jurisdictions in relation to the criminal history of the applicant or any of their associates and must consider any objections or representations made by the Chief Commissioner of Police (new section 34W(3)(a), (c) and (6)). Under new section 34X, the Regulator may refuse to grant a licence or transfer application if they consider the applicant or an associate of theirs not to be a suitable person to carry on or be associated with a tobacco supply business.

Section 34Z deals with suitability matters and provides that a person found guilty – within the preceding 5 ‍years – of a suitability offence (as defined in amended section 3) or an indictable offence (other than an indictable offence that is a suitability offence) or who is, in the Regulator’s opinion, linked to or tends to be linked to, unlawful tobacco activity or organised crime activity, are not a suitable person to carry on or be associated with a tobacco supply business under the licence. Section 34Z(2) provides that the Regulator may take into account any spent conviction in relation to an offence specified in section 34(1) disclosed to the Regulator under the Spent Convictions Act that is recorded not more than 5 years before the date that the Regulator requested the information from the relevant law enforcement agency.

Right to equality and right to freedom of association

Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in section 6 of that Act. Relevantly, ‘spent convictions’ and ‘personal associations’ with a person who is identified by reference to a spent conviction, are attributes protected under sections 6(pb) and 6(q) of the EO Act. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

Accordingly, the power to refuse to grant a licence to an applicant on the basis that the applicant, or their associate, has a spent conviction may constitute direct discrimination against a person with a protected attribute and therefore engage the right to equality under s 8(3) of the Charter.

Section 16(2) of the Charter provides that every person has the right to freedom of association with others. This right has been broadly construed to include private associations and is not confined to participation in formal groups. Therefore, this Bill may engage this right by denying a person a licence on the basis of their personal or business associations.

Consequently, it is necessary to consider the proportionality or justification of the limitation on this right, by reference to its purpose. In order to justify limiting a Charter right, the purpose of the limitation must relate to ‘pressing and substantial’ social concerns, and be aimed at achieving legitimate values and interests. The more pressing and substantial the purpose, the greater the limitation it will justify.

The Bill seeks to address the pressing and substantial social concern of infiltration of the tobacco industry by serious and organised crime, and the practice of placing business assets in the names of family members. This practice has also been linked with financial abuse of domestic partners where criminal activity takes place within businesses under the names of domestic partners. These amendments are thus aimed at achieving the legitimate purpose of safeguarding the suitability of licensed retailers and wholesalers of tobacco products. Given the immediate and escalating risks in the tobacco industry, there is a strong public interest in this purpose. Accordingly, any limitations on the rights to equality and free association occasioned by the licencing scheme established in the Bill are necessary to fulfil a legitimate and pressing purpose that cannot be achieved by less rights-limiting means. I therefore consider that the Bill is compatible with the right to equality in section 8 of the Charter.

Right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. An interference with the right to privacy and reputation will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

New Part 3AA of the Bill requires the provision of prescribed information, including an applicant or associate’s criminal history, to the Regulator in support of a licence application (new sections 34A(1)–(3)), 34H(2)–(4), 34I(2)–(4) and 34ZS(2)–(4)). To the extent that the prescribed information includes personal information, these provisions may interfere with a person’s right to privacy under section 13(a) of the Charter.

This being so, any impacts on the right to privacy are not unlawful or arbitrary. This is because the interference with privacy is authorised under legislation and is for the purpose of enabling the Regulator to make informed decisions about the appropriateness of a person to carry on a tobacco supply business. New sections 34A, 34H, 34I and 34ZS are clear and accessible and reasonably necessary to facilitate the Regulator’s regulatory functions. Further, the information required by the Regulator is limited to information necessary for, or relevant to, the an assessment of whether a licence applicant is a suitable person to carry on a tobacco supply business, and serves the important purpose of enhancing the fitness and propriety of persons participating in the tobacco industry and addressing unlawful activity.

Further, as there is a diminished expectation of privacy by persons seeking to participate in a regulated industry and that applicants will have given their consent for their information to be verified and shared within the confines of the relevant provisions, any interference with the privacy interests of applicants is limited. I therefore consider that the Bill is compatible with the right to equality in section 13 of the Charter.

Criminal history

As noted above, various applications under the Act require the applicant to provide criminal history checks to the Regulator (new sections 34A(1)–(3)), 34H(2)–(4), 34I(2)–(4) and 34ZS(2)–(4)). Further, before granting or refusing a licence, relocation, transfer, variation or renewal application, the Regulator may conduct inquiries with government agencies in relation to the criminal history of the applicant or any associates of the applicant (section 34W(3)(a) and (6)). Criminal history checks may disclose pending criminal investigations, current unproven criminal charges, convictions and findings of guilt as well as charges that have been struck out, withdrawn, set aside or where the person has been found not guilty.

New section 34ZZ further set outs the process by which the Regulator may, on their own motion, review licences. In so doing, the Regulator is empowered to conduct any inquiries they think fit, including from the licensee or their associate, the Chief Commissioner of Police or other government agencies in relation to the criminal history of the applicant or their associates (section 34ZZ(3)–(4)). The Regulator may further request any documents or information that they consider appropriate, including a criminal history check of the licensee; and any of their associates.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. This right is one of the most fundamental rights in the Charter, and accordingly, will require a sufficiently important objective to justify being limited.

While the right has been found to only apply to criminal proceedings (and not, by contrast, to other proceedings such as regulatory decisions), it does afford an accused a right to have the benefit of the doubt, and to be treated in accordance with this principle. It is suggested that the right incorporates duties on others to refrain from prejudging the outcome of a trial – including to abstain from actions that affirm the guilt of an accused.

While Victorian case law has yet to consider in more detail the broader application of this right beyond criminal proceedings, there is a reasonable argument that the above mentioned provisions that allow the Regulator access to a person’s criminal history which may disclose pending criminal investigations or current unproven criminal charges may constitute a limit on the presumption of innocence if this information forms the basis of a decision to deny an application. As such, these provisions could be characterised as effecting an act of pre-judgment of an accused, or at least depriving them of their right to the benefit of the doubt.

However, I consider that the licencing decisions by reference to potential involvement in criminal conduct is justified because the effective operation of the licensing scheme is necessary to protect the integrity of the industry and combat illegal tobacco activity. I therefore consider that the Bill is compatible with the right to be presumed innocent in section 25(1) of the Charter.

Right not to be tried or punished more than once

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However the principle only applies in respect of criminal offences – it will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa.

It might be argued that new section 34X(1)(a) of the Act, which provides for the refusal of a licence application on the basis of past convictions including spent convictions, constitute a limit on this right. This is because the provision could be characterised as effecting a form of ‘punishment’. Similarly, the suspension and cancellation of a licence where the licensee or associate is found not to be a suitable person may be considered to be a double punishment if the finding is based on, or informed by, past charges or convictions.

However, in my view, these new sections do not engage this right as the making of licencing decisions by reference to past involvement in criminal conduct is not to be characterised as imposing a form of punishment, for the following reasons.

• The mere fact that a law operates to directly impose a detriment on a particular person does not make it punitive. Rather, the authorities show that the criteria by reference to which the detriment is imposed, and also the purpose for which it is imposed, are central to determining whether the imposition of a particular detriment is properly characterised as punitive.

• The purpose of the provisions is not punitive but protective, aimed at safeguarding the suitability of licensees, and the integrity of the licence scheme and tobacco supply industry. As the tobacco industry has been widely infiltrated by criminal organisations, it is important to ensure that the supply of tobacco products is subject to strict regulatory oversight.

Therefore, regulatory decisions on the basis of an applicant’s criminal history are not punitive in their purpose but protective in nature. Therefore, in my view, they do not amount to double punishment for the purpose of section 26, and this right is therefore not limited.

Powers to suspend and cancel licences and disqualify persons

Division 4 of new Part 3AA, inserted by clause 8, regulates the suspension and cancellation of licences. New section 34Q, inserted by clause 22 of the Bill, authorises the Regulator to suspend or cancel a licence on various grounds set out in section 34P(1), including where the licensee, or an associate, are found to no longer be a suitable person to carry on or be associated with a tobacco supply business under the licence for reasons that may include being found guilty of a suitability offence or an indictable offence that in the Regulator’s opinion is linked to or tends to be linked to unlawful tobacco activity or organised crime activity (section ‍34Z). If the Regulator has cancelled a licence under new section 34Q, the Regulator may also disqualify that person from holding a licence for up to five years (new section 34ZU). New section 34W further authorises the Regulator to refuse a licence renewal application.

Right to privacy

Although the Charter does not include an express ‘right to work’, there is case law which suggests that the right to privacy may include ‘a right to work of some kind’ where there is a sufficient impact upon the personal relationships of an individual or on their capacity to experience a private life, for example by curtailing their ability to earn a living and maintain their identity through employment.

It is possible that for a person who operates a tobacco supply business, the suspension, cancellation or refusal to grant renewal of their licence, or their disqualification from holding a licence, may significantly curtail their ability to earn a living and maintain their identity through employment. Accordingly, on a broad reading, the right to privacy may be engaged by a decision to suspend, cancel or disqualify a person, or a decision not to renew a licence. However, for the right to be limited, any interference must be unlawful and arbitrary. The question of arbitrariness depends upon the proportionality of any interference with privacy.

In my view, any impacts on the right to privacy are not unlawful or arbitrary. This is so because the provisions granting the power to suspend or cancel a licence are subject to a range of safeguards, such that any limits on rights are precise and carefully circumscribed. Division 4 sets out a detailed procedure for the determination of suspension and cancellation applications. For example, where an application is made by the Chief Commissioner of Police or a mortgagee of a licenced tobacco premises, the licensee must be provided with a copy of the application and where relevant, a ‘show cause’ notice (sections 34N, 34O and 34P). Further, a decision to suspend or cancel a licence must only be made in accordance with the criteria set out in section ‍34P(1), which includes a finding of such matters as the licensee or their associate is no longer a suitable person to carry on or be associated with a tobacco supply business under the licence, or the breach of a licence condition by the licensee. Similar safeguards apply to disqualification decisions (section 34ZT). Therefore, these provisions are aimed at ensuring that only suitable people are permitted to operate tobacco supply businesses, which serves a legitimate and important purpose, particularly given the incidence of unlawful and organised crime activity in the supply of tobacco products and the central role of licensees to supply of these products. Finally, suspension, cancellation and disqualification decisions are all subject to internal review (clause 5, subsection 3(e) and (g)) and VCAT appeal processes (new section 34ZL).

Finally, a tobacco supply licence is a privilege that attracts special responsibilities and duties. The power to suspend or cancel a licence due to a licensee’s failure to comply with its requirements and conditions is an important regulatory function that protects the integrity and safety of the industry.

Accordingly, I consider that any interference arising from the Regulator’s powers to suspend or cancel licences or disqualify persons from holding licences would not be arbitrary.

Right to fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of administrative decision-makers with the power to determine private rights and interests in the broad sense. As administrative decisions that affect existing rights attract the application of the right to a fair hearing, powers to cancel or suspend an existing licence are likely to engage this right.

The fair hearing right is principally concerned with the procedural fairness of a decision, which in the context of these types of administrative decisions, generally requires prior notice of a decision, informing interested parties of the matters that may be relevant to a decision, and giving them a ‘reasonable opportunity’ to present their case and respond to adverse information.

I am satisfied that the fair hearing right is not limited, because section 34P provides for show cause notice requirements, which must include the ground(s) for the decision and an outline of the facts and circumstances forming the basis of the Regulator’s belief that the ground(s) exist (subsections (2)(b) and (c)). Additionally, the Bill affords licensees a reasonable opportunity to respond (subsections 34P(2)(e) and (3)) and with a right of internal and VCAT review of the decision (sections 34ZJ and 34ZL).

Right not to be tried or punished more than once

It might be argued that new section 34Q of the Act, which provides for the suspension or cancellation of a licence where the licensee or associate is found not to be a suitable person, constitutes a limit on this right if the finding is based on, or informed by, past convictions including spent convictions. The argument might be put on the basis that the provision could be characterised as effecting a form of ‘punishment’.

However, in my view, this new section does not engage this right as the making of licencing decisions by reference to past involvement in criminal conduct is not to be characterised as imposing a form of punishment, for the same reasons as outlined above.

Further, the nature of the detriments being imposed (eg, licence suspension or cancellation) is not of a nature traditionally associated with a criminal sanction. Penalties and sanctions imposed by a regulator do not usually constitute a form of ‘punishment’ for the purposes of this right. Further, no conviction flows from these outcomes nor is a person liable for subsequent sanctions of a criminal nature, such as a fine or imprisonment. The detriment does not interfere with a person’s liberty or bodily integrity (or even pre-existing property rights), it is just directed to whether an applicant will continue to enjoy a privilege (ie, a licence).

Finally, licence suspension and cancellation on the basis of criminal history are limited to serious offences, such as indictable offences that in the Regulator’s opinion may be linked to unlawful tobacco activity or organised crime activity (new section 34Z(1)(b)), and other specified offences that reasonably put into question a person’s suitability to carry on a tobacco supply business (eg, indictable offences relating to fraud or dishonesty: subsections 3(c) and 34Z(1)(a)) (see ‘suitability matters’ as defined in new section 34Z).

Immediate suspension in relation to suspected illicit tobacco offences

Pursuant to recommendations arising from the PAEC inquiry into Vaping and Tobacco Controls, the Bill introduces a new process providing for the immediate suspension of a licence (for up to 90 days) if the Regulator forms a reasonable belief that a licensee has committed an offence relating to the possession or supply of a commercial quantity of illicit tobacco, and may continue to possess or supply illicit tobacco in or from the licensed premises (clause 8, new section 34R).

Right to a fair hearing

As new section 34R allows a person’s licence to be immediately suspended without a show cause process, this amendment may further engage the right to a fair hearing.

However, as outlined above, the fair hearing right is principally concerned with the procedural fairness of a decision, such that the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited. The Bill affords licensees a right of internal and VCAT review of a decision to immediately suspend a licence (sections 34ZJ and 34ZL).

Further, immediate suspension serves an important purpose of providing a timely mechanism for preventing further criminal activity in circumstances where the Regulator reasonably believes that a licensee has committed an offence and may continue to do so. It is an important mechanism for realising the Bill’s purpose of ensuring retailer and wholesaler compliance with the lawful sale of tobacco products.

I further consider section 34R to be a proportionate response as immediate suspension is confined to preventing activities reasonably considered to be an offence in circumstances where delayed regulatory action would not have the immediate protective effect of preventing an imminent risk of continued offending.

Therefore, to the extent that this provision limits the fair hearing right, it serves a legitimate objective and is thus reasonably justified. Accordingly, I am satisfied this provision is compatible with the Charter.

The right to be presumed innocent

Section 34R(2) authorises the Regulator to immediately suspend a licence under section 34R regardless of whether the licensee has been charged with an illicit tobacco offence, proceedings have been initiated against the licensee in respect of such offence, or the licensee having been convicted of such offence. As the provision allows for a regulatory action on the basis of an unproven offence and therefore can be characterised as effecting an act of pre-judgment of an accused, or at least depriving them of their right to the benefit of the doubt, the provision engages and may limit the right to the presumption of innocence in section 25(1) of the Charter.

However, there is a clear and direct relationship between the limitation and stated purpose – the immediate suspension of a licence directly correlates to the stated purpose of safeguarding the suitability of licensed tobacco retailers and wholesalers and the integrity of the tobacco retailer and wholesaler licensing scheme. Given the immediate and escalating risks in the tobacco industry, there is a strong public interest in this purpose.

Moreover, immediate suspension is limited to serious offences related to the possession or supply of a commercial quantity of illegal tobacco, where the Regulator reasonably believes the licensee may continue to offend.

It is my view that if the immediate suspension of a licence under new section 34R of the Act limits the right to be presumed innocent under section 25(1) of the Charter, such limits are justifiable.

Search and seizure powers

Division 3 of new Part 3AAB of the Act introduces a suite of powers that enable licensing inspectors to enter, inspect and search licensed tobacco premises, any vehicle used in connection with these premises, or other premises, and to seize any document or thing after entry. These powers provide a hierarchy of options that scale in the extent of their interference with rights:

• at the lower end of the scale are powers to enter a licensed tobacco premises open to the public, or to enter with consent (sections 35I and 35J);

• at the higher end are those powers that can only be exercised pursuant to a search warrant (section ‍35L).

Where a licensing inspector enters a premises or vehicle, they may exercise the powers specified in new sections 34K. These powers differ, depending on the basis on which a person’s entry is authorised, but broadly include powers to search the premises; inspect or require the production of any document, equipment, product, goods or other thing for the purpose of inspection; copy or take an extract from documents; request information from persons at the premises, and seize any document, equipment, tobacco product, vaping goods or other thing in certain circumstances.

Warrants can be issued by a Magistrate where there are reasonable grounds to believe that there is likely to be on the premises any document, equipment, tobacco product, vaping goods or other thing that may be evidence of a licensing offence (section 35L). Where entry is authorised by warrant, a licensing inspector or police officer may also seize things not mentioned in the warrant if they reasonably believe certain matters exist (section 35O). They may also use or seize electronic equipment at the premises in certain circumstances (section 35P).

Right to privacy

These powers engage the right to privacy in section 13 of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy or correspondence. However, a number of safeguards apply to the exercise of such powers to ensure they are not exercised arbitrarily or unlawfully. In particular:

• licensing inspectors must only exercise powers of entry during normal business hours or any other time the premises are open to the public (unless the licensing inspector reasonably suspects that a licensing offence is being or has been committed, or otherwise provided for under a warrant, or by consent) (section 35I);

• licensing inspectors may only exercise powers (other than under a warrant) for the purpose of monitoring compliance with a relevant provision or if the inspector reasonably believes that a licensing offence is being or has been committed (section 35K(1));

• when consent is required to exercise a power, licensing inspectors must explain certain matters including the person’s right to refuse to consent, and seek a signed acknowledgment of consent (section 35J);

• licensing inspectors and police officers must comply with retention and return limits in accordance with section 35Q for anything seized under section 35K or under a licensing search warrant; and

• when exercising powers of entry under a warrant, licensing inspectors or police officers must generally announce that they are authorised by warrant, give a person at the premises the opportunity to allow entry, and provide a copy of the warrant to the occupier (if present) (sections 35M and 35N).

As such, a broad range of safeguards apply to ensure the powers may only be exercised in a reasonable and proportionate way that protects the privacy of individuals as much as possible. The powers serve the important purpose of enabling licensing inspectors to effectively monitor and enforce compliance with the Act. The powers are appropriately tailored to reflect the source of the authority to enter premises and exercise associated powers, with the most significant powers being reserved to circumstances where a Magistrate has granted a warrant. Further the powers will primarily be restricted to entry onto commercial premises, at which there is generally a lesser expectation of privacy.

Although the powers involve some interference with the privacy of the licensees, I consider that the interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in section ‍13 of the Charter.

Right to property

While property is not defined under the Charter, it is likely to include personal property interests recognised under general law. As the new seizure powers authorise the removal of anything found on the premises, these powers may engage property rights under section 20 of the Charter.

However, the provisions empowering the seizure of any document, equipment, tobacco product, vaping goods or other thing do not limit property rights, as any interference with property occasioned by these provisions would be undertaken in accordance with the provisions of the Bill, which are accessible, clear and sufficiently precise. For example, a licensing inspector may only seize anything on the premises if they consider it necessary for the purpose of obtaining evidence of the commission of a licensing offence (subsection ‍35K(2)(d)) and must provide a receipt for the thing seized as soon as practicable (subsection ‍35K(4)). Under a licensing search warrant, the power to seize anything not named in the warrant is subject to various conditions: specifically, a licensing inspector or police officer must believe on reasonable grounds that the seized thing is of a kind which could have been included in a warrant, will afford evidence of a licensing offence and is necessary to seize to prevent its concealment, loss or destruction or its use in the commission of that offence (new section 35O). Further, any deprivation of property is reasonably necessary to achieve the important objective of obtaining evidence of the commission of a licensing offence.

Therefore, any deprivation of property will be ‘in accordance with law’ and will therefore not limit the Charter right to property.

Information use and sharing provisions

New section 35C, inserted by clause 12, authorises the Regulator or a licensing inspector to collect, use and disclose information about an applicant or licensee, or their associate, for the purpose of performing the functions of the Regulator or licensing inspector under the Act and for other specified purposes. The provision also authorises the Chief Commissioner of Police to disclose to the Regulator any information, including personal information and law enforcement data, that they consider is reasonably necessary to enable the Regulator to perform their functions under the Act.

Additionally, new sections 34T and 34U of the Act, inserted by clause 8, enable the sharing of information, including personal and sensitive information between the Regulator and Chief Commissioner of Police for the purpose of objections or representations in relation to licence applications. Specifically, the Regulator must provide a copy of a licence or transfer application and may provide a copy of suspension, cancellation, relocation and variation applications, to the Chief Commissioner of Police (sections 34T and 34V). Sections ‍34U and 34V permit the Chief Commissioner to object and/or make written representations to the Regulator in relation to these applications. New section 34W of the Act enables the Regulator to use information provided by the Chief Commissioner when determining licence applications.

Right to privacy and reputation

By authorising the disclosure of what may be personal and sensitive information, these provisions engage the right to privacy and reputation of applicants and licensees under section 13 of the Charter. However, these amendments are carefully confined to their statutory purpose, to enable the Regulator to exercise their regulatory functions in respect of the licensing scheme and preclude unsuitable licensees, applicants and their associates from carrying on or being associated with a tobacco supply business. Therefore, the proposed disclosure of information does not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill, such that it is reasonable and proportionate to the Bill’s important objectives.

Accordingly, I consider that these provisions strike an appropriate balance between protecting the privacy and reputation of applicants while ensuring that the Regulator has sufficient information to perform its regulatory functions, including determining the outcome of licence applications and reviews. In my view, the information sharing powers are proportionate to the purpose of the limitation and therefore, will not be an arbitrary or unlawful interference with privacy.

Protected information provisions

Clause 8 inserts new section 34ZA, which sets out a new regime for the use and disclosure of ‘protected information’ as defined in amended section 3 of the Act. Protected information includes any information that is likely to jeopardise the safety of another person; reveal an intelligence gathering method, investigative technique or covert police practice; or may prejudice any investigation or criminal proceeding.

The Bill provides that protected information may be withheld from the Regulator if the Chief Commissioner of Police makes an objection, representations, or licence suspension or cancellation application that relies partly or wholly on protected information. Further, if the Regulator makes a licence application decision based on protected information, and provides the applicant with reasons for that decision, they must not disclose the protected information to the applicant (new sections 34ZA(3) and 34ZI). Instead, the Regulator must state only that their decision is based on advice from the Chief Commissioner of Police.

Freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. The right to freedom of expression in section 15 of the Charter has been interpreted as encompassing a right to access information in the possession of government bodies, particularly where an individual seeks information on a subject in which they have a legitimate interest. Accordingly, these provisions may impose a limit on the right to freedom of expression under s 18 of the Charter by limiting a person’s right to access information on matters that concern them.

However, section 15(3) provides that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality. The protective information provisions in the Bill are necessary to achieve important objectives such as the protection of the safety and privacy of individuals, the integrity of police investigations, and the administration of justice. I, therefore, consider that any limitations imposed are either within the internal limits of the right in s 15(3) or reasonably justified and proportionate in accordance with section 7(2) of the Charter.

Therefore, while there are restrictions upon the ability to access protected information that is provided by the Chief Commissioner of Police and is relevant to application decisions, those limits are reasonably necessary to protect the rights of others and the administration of justice, and are therefore compatible with the right to freedom of expression.

Right to fair hearing

As applicants and licensees will be precluded from accessing protected information on which adverse licence decisions may be based, the protected information provisions may engage the right to fair hearing.

Although an applicant is not privy to the entire case against them insofar as the decision is based on the protected information, the Bill provides a range of protections to facilitate procedural fairness. New section ‍34ZM permits a person whose interests are affected by a decision that is based on advice from the Chief Commissioner of Police to apply to VCAT for review of the Regulator’s decision. In such proceedings, VCAT must appoint a special counsel to represent the interests of the applicant to the extent that those interests relate to the protected information on which the decision is based (new section 34ZO). The Bill sets out a detailed process for the hearing of these review proceedings that balances the need to maintain the confidentiality of protected information with the rights of the applicant to a fair hearing (Division 9 of new Part 3AA). Accordingly, I find that any limitation to this right resulting from new section 34ZA is proportionate and reasonably justified.

Evidentiary presumptions in unlicenced sale of tobacco offence

Clause 35 of the Bill inserts new section 33A, which introduces an offence to sell tobacco products without a licence. The provision contains a presumption that the fact that there are more tobacco products on the premises than are reasonably required for the occupier’s use, is evidence of the sale of those products by the occupier.

Clause 29 of the Bill inserts new section 39A, which provides that proof of the delivery of tobacco products is evidence of money or other consideration having been given for the tobacco products and that proof that a transaction in the nature of a sale of tobacco products took place is evidence of the sale of tobacco products.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. These provisions engage this right because they operate to deem certain evidence as proof of the ‘fact’ that an individual has committed an element of an offence and thus reduce the prosecution’s burden to provide evidence in relation to these facts. These presumptions can be rebutted by the defendant adducing evidence to the contrary, when the burden will shift to the prosecutor.

To the extent that these evidentiary presumptions limit the right in section 25(1) of the Charter, any such limit is, in my view, reasonable and justified given the important protective purpose of clauses 29 and 35 of the Bill. As the offences involve acts, being the unlicenced sale of tobacco, that would be difficult for the prosecution to establish in the absence of the presumptions, these provisions are necessary to ensure the effective administration of the licence scheme designed to prevent the unregulated sale of tobacco. The clauses establish facts that are probabilistically likely to be the case (ie, the fact that there are more tobacco products than are reasonably required for the occupier’s use means it is highly likely that it is for the purposes of sale) and enable these offences to be efficiently prosecuted. Accordingly, I do not consider there are any less restrictive means reasonably available to achieve the legislative purpose.

Further, courts in other jurisdictions have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where regulatory offences may cause harm to the public. I consider these presumptions to be a reasonably necessary and proportionate response to address the high incidence of unlawful and organised crime activity in the tobacco industry, and enforce the compliance with the licensing scheme.

Therefore, I am of the view that any limitation on the right to be presumed innocent in section 25(1) is reasonable and demonstrably justified.

Appointment of licensing inspectors

Division 2 of new Part 3AAB provides for the appointment of licensing inspectors to promote, monitor and enforce compliance by tobacco supply businesses with the Act and regulations (new sections 35D and 35F(1)(b)). The Regulator may only appoint a person as a licensing inspector if they are satisfied that the person has the necessary skills, training and expertise to perform the functions and duties, and exercise the powers of an inspector under the Act (new section 35D(2)). The Regulator may require a prospective licensing inspector to consent to having their photograph, finger prints and palm prints taken, and must refer a copy of these and any supporting documentation to the Chief Commissioner of Police for a criminal records check (section 35E(1)–(2)). The Chief Commissioner of Police must inquire into and report to the Regulator on matters relating to whether the prospective licensing inspector is of good repute, having regard to character, honesty and integrity (section 35E(3)).

Right to privacy

To the extent that these provisions require a person to disclose personal and sensitive information, including biometric data or any criminal record, the requirements would interfere with the person’s right to privacy in section 13(a) of the Charter. In my view, any interference would not be arbitrary, because ensuring that only fit and proper people are appointed as licensing inspectors serves a legitimate and important purpose, noting their role in supporting improved compliance and enforcement. Further, these provisions are accompanied by safeguards such as the mandatory destruction of all biometric information obtained for the purpose of considering a prospective appointment (section 35E(4)–(5)), such that they are proportionate to the legitimate aim sought.

Forfeiture provisions

New section 35ZB authorises the forfeiture and destruction of seized tobacco products if the person is found guilty of an offence under the Act. Similarly, new section 37A authorises the forfeiture of prohibited products, which include illicit tobacco products and vaping goods. Further, clause 69 amends Schedules 1 and 2 of the Confiscation Act to include illicit tobacco offences. The effect of these amendments is to render the property of persons convicted of certain offences under the Act subject to forfeiture, asset freezing and other confiscation orders under the Confiscation Act.

Right to property

As property is likely to include real and personal property interests, the above forfeiture provisions could be considered to deprive a person of their property rights.

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

However, any such deprivation will be ‘in accordance with law’ and will therefore not limit the Charter right to property. In particular, new sections 35ZB and 37A are drafted in clear and precise terms. For example, section 37A(1) requires that after seizure of the prohibited product, the licensee be served with a forfeiture notice, which has been approved by the ‘appropriate person’ (as defined in section 37A(8)) in the circumstances. Similarly, the existing suite of safeguards in the Confiscation Act will apply to the tobacco offence included in the forfeiture regime. In addition, any deprivation of property will be reasonably necessary to deprive retailers and suppliers of the proceeds of crime and thus disrupt further criminal activity by preventing the use of property, deterring others from engaging in criminal activity and undermining the profitability of serious criminal activity. This serves the important objective of ensuring effective enforcement of retailer and wholesaler compliance with controls on the lawful sale and promotion of tobacco products under the Act.

The Hon. Melissa Horne MP

Minister for Casino, Gaming and Liquor Regulation

Second reading

Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:16): I ‍move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

I am pleased to bring before the House the Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Bill 2024. The Bill will amend the Tobacco Act 1987 to introduce a tobacco business licensing scheme, that will prohibit the retail and wholesale sale of tobacco by any person other than the holder of a licence granted under the Tobacco Act 1987. These reforms will better protect businesses who are operating legitimately and will ensure greater oversight of the tobacco retail and wholesale industries in Victoria.

The reforms in this Bill respond to significant community concerns regarding illicit tobacco and the prevalence of tobacco businesses suspected of involvement in its distribution across the state. The Bill aims to significantly strengthen regulation and enforcement of laws governing the supply of tobacco to limit the availability of illicit tobacco and punish those who distribute it. The new licensing scheme will deter unsuitable people from seeking to run a tobacco business and contribute through intelligence and licensing enforcement action to support Victoria Police and other law enforcement efforts to combat serious and organised crime.

The Bill implements key findings from the Review into Illicit Tobacco completed by the Commissioner for Better Regulation in 2021, as well as the 2024 Public Accounts and Estimates Committee Inquiry into Vaping and Tobacco Controls.

The Bill builds on the recent Commonwealth legislation relating to the sale and supply of vaping goods, which can now only be legally sold in pharmacies. The Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024 amended the Therapeutic Goods Act and other Commonwealth legislation to prohibit the importation, domestic manufacture, supply, commercial possession and advertisement of non-therapeutic and disposable vaping goods. These reforms are intended to reduce the prevalence of smoking and vaping in the community, in line with the National Tobacco Strategy.

Administration

The Department of Justice and Community Safety will be responsible for administering the new tobacco business licensing scheme. The new tobacco regulatory function will work closely with other government departments and agencies to ensure a coordinated approach, in particular, the Department of Health which will remain the lead department responsible for the administration of the Tobacco Act 1987 including health promotion, smoking cessation, enforcement of smoke free area offences and preventing broader tobacco and smoking harms, along with Victoria Police which will continue to lead the investigation and disruption of serious and organised crime.

Licensing

Key features of the Bill include the establishment of a licensing scheme that will prohibit the retail and wholesale sale of tobacco products by any person without a licence granted under the Tobacco Act 1987. The Bill will introduce powers for the regulator to impose conditions on tobacco licences, as well as suitability requirements, to ensure that licences cannot be held by anyone who is not ‘fit and proper’ in accordance with the requirements of the scheme. The Bill will also introduce new offences and strengthen penalties, to ensure that Victoria has the strongest illicit tobacco offences in the country.

Suitability of licensees

The Bill provides that a person or body corporate can apply to the regulator for a licence to sell tobacco. The licence application must include the required information and any other documents or information that the Regulator considers appropriate to determine the applicant’s suitability to hold a licence. The Bill enables the regulator to seek information and intelligence from Victoria Police when assessing licence applications to determine a person’s suitability to hold a tobacco licence. Importantly, the Bill provides that the regulator may refuse to grant a licence if the regulator considers that the applicant or an associate of the applicant is not suitable to carry out or be associated with a tobacco supply business. The Bill also enables the regulator to impose conditions on a licence, such as a requirement that the licensee report to the regulator on the activity they conduct under the licence.

Suspension and cancellation of licences

The Bill provides that in certain circumstances, the regulator may vary, suspend or cancel a tobacco licence if the licensee, or an associate of the licensee, breaches a condition of their licence or is no longer considered to be a suitable person to run or be associated with a tobacco supply business. Specifically, a tobacco licence can be suspended or cancelled following a show cause notice. Given the immediate and escalating risks in the tobacco industry, the Bill also provides that the regulator will be able to immediately suspend a licence for up to 90 days in response to serious contraventions of the Tobacco Act 1987. The regulator may also disqualify a person or body corporate from holding a licence for up to 5 years.

Ongoing reviews of suitability

The Bill also allows the regulator to conduct a review of a licence at any time, which will include consideration of the licensee’s (or their associate’s) suitability to carry on a tobacco supply business and may request the licensee and the licensee’s associates undertake a criminal history check. To inform this review, the regulator may make inquiries with Victoria Police, other government agencies and local councils, to verify the licensee’s compliance under the Act.

Penalty Regime

Another key component of the Bill is the introduction of a range of measures to enable non-compliance to be appropriately dealt with. Several new offences have been included to support the licensing scheme, including separate offences for possessing and selling illicit tobacco, a new offence to sell tobacco without a licence and an offence to sell tobacco products except in accordance with a licence.

The Bill introduces the strongest penalty regime in the country for supplying illicit tobacco. For supplying a commercial quantity of illicit tobacco, the new penalty will be a fine of up to $355,662.00, or 1800 penalty units, or 15 years jail for an individual, and a fine of up to $1,778,310.00 or 9000 penalty units, for corporations.

Importantly, the Bill introduces substantial penalties for selling tobacco products in contravention of the Act, including selling tobacco without a licence. For individuals, the new penalty will be a fine of up to $165,975.60, or 840 penalty units, or 5 years imprisonment and a fine of up to $829,878.00, or 4200 penalty units, for corporations.

The strong penalties contained in the Bill will be supported by cooperation between the regulator, Victoria Police and other authorities, and supplement the broader efforts of state and federal law enforcement agencies to counter serious and organised crime in the tobacco industry

Enforcement

The Bill introduces inspection and enforcement powers for licensing inspectors, including the power to enter premises for compliance monitoring and inspection and seizure powers. The regulator will also be able to issue improvement notices and accept enforceable undertakings to bring about compliance with the licensing scheme.

Victoria Police will continue to be responsible for, and focussed on, detecting and investigating serious and organised crime associated with illicit tobacco. The Bill will help to strengthen Victoria Police’s efforts to crack down on illicit tobacco by providing police officers with the ability to exercise enforcement powers under the tobacco business licensing scheme, including to obtain search warrants, enter premises and seize illicit items to support the detention and enforcement of serious criminal activity.

The regulator will build a strong operational relationship with Victoria Police, enabling the regulator to focus on day-to-day compliance, inspection and enforcement activities and Victoria Police to focus on the detection, investigation and disruption of serious and organised crime associated with the illicit tobacco markets.

Review of decisions

The Bill provides for an internal review process with respect to certain decisions made by the regulator, as well as an external review process, whereby a person whose interests are affected by a decision made by the Regulator may apply to the Victorian Civil and Administrative Tribunal for external review of the Regulator’s decision. This includes a process that allows Victoria Police to object to or provide input in relation to a licence application based on protected information that will not be disclosed to the applicant.

Statutory Review

The Bill includes provisions requiring a statutory review of the tobacco licensing scheme to be undertaken after 5 years of operation. The objective of these provisions is to facilitate transparent reporting on the licensing scheme’s effectiveness, as recommended by the PAEC Inquiry.

Data collection

As noted by the PAEC Inquiry, there is a need for improved data collection in relation to the sales and supply of tobacco. The Bill will enable data collection through the inclusion of conditions on tobacco licences. The Bill provides that the regulator must keep a Register of Licensed Tobacco Suppliers, which includes information in relation to each licence, the business name under which the licensee sells tobacco products, the address of the licensed tobacco premises, the licensee’s licence number and any other prescribed information. The Bill also provides that the Register will be published on the regulator’s website.

Conclusion

These reforms will bring Victoria into line with other states and territories which have introduced licensing schemes and will ensure that Victoria has the strongest illicit tobacco offences in the country. The increased penalties for illicit tobacco offences reflect the Government’s commitment to address the harms caused by the illicit tobacco industry and the significant health impacts of smoking on Victorians. This Bill is reflective of the Government’s commitment to address these issues as effectively and efficiently as possible, in line with community expectations.

I commend the Bill to the house.

James NEWBURY (Brighton) (12:16): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:16): I ‍move:

That debate be adjourned until tomorrow.

James NEWBURY (Brighton) (12:17): The bill has just been circulated in the chamber, and I note that despite being given effectively urgent status in this chamber, on page 1 it makes clear that the government does not intend to bring this bill into operation until 19 months time – 19 months time. This is why it is important that bills not get rushed through this chamber, because if the government had come to the coalition we could have raised with them in good faith the need to act now. It is not good enough to simply say there is a problem – a problem which, by the way, the government in the last sitting week blocked the coalition from taking action on. A bill has been introduced which requires some urgent status in this chamber but will sit collecting dust for 19 months. How could that be? We know that 110 firebombings have occurred already, two only in the last week in Pascoe Vale – two in the last two days at the same shop.

The SPEAKER: I remind members not to anticipate debate; this is a procedural motion.

James NEWBURY: And it is an important procedural motion that goes to the substance of why we must take action. That is the core of what we are debating today. It is the core of what we debated in the last sitting week: the need for action, the need for doing something, the need for doing something now. We have seen two firebombings since the last sitting week. This bill, which has just been handed out to the non-government members around this chamber, has on the front page that the bill will not commence operation until 1 July 2026. How can that be? We know what has happened in the community and the need for action, and that is why the coalition has been leading on it. That is why the member for Ovens Valley came into this chamber and said we need action now, and he was very persuasive I felt and he spoke eloquently about the need for action now. The government said, ‘No. Block. No. Block’. Every single member on that side of the chamber said no – they blocked it. And yet we have seen a rushed bill come into the chamber this week. It is not even on the Parliament’s program for the day. It is not even on the program for the day, it is so rushed. The Parliament has not even had time to add it to its program, and yet it is so rushed that it is going to sit on a shelf for 19 ‍months.

What is going to happen in that time? I fear for what is going to happen over that time. I cannot understand how the government keeps getting this so wrong. That is why the coalition has said again and again and again that we need action. We need action now. As the member for Ovens Valley and as many members on this side of the chamber said in the last sitting week, we need action now. So we are shocked, frankly, to see a bill introduced in this chamber that is going to see dust until 1 July 2026. We need action now. How many more firebombings will occur before 1 July 2026? We are concerned; of course we are concerned. We are concerned on behalf of the community. For the government to walk in here with an urgent bill that is going to sit collecting dust for 19 months is shameful. It shows they do not get the problem, and they certainly do not know how to fix it. They should have listened to the member for Ovens Valley last week. That is what they should have done. They should have listened to him last week, and we might not have seen those two firebombings occur. The government stand condemned for their lack of action when it comes to this important issue.

Lauren KATHAGE (Yan Yean) (12:22): The member for Brighton reminds me of Goldilocks: first it is too slow, then it is too rushed. Well, I say it is just right. The willingness to push for quicker action and then to say ‘slow down’ when we take action shows the truth about those opposite: that really the only thing they want to do is block. It is not about the content, it is not about the substance, it is not about the timing and it is not about the community. It is just about blocking. So I thought about other fairytales or fables. If it is not Goldilocks, perhaps it is the boy who cried wolf. I think the member for Brighton is reminding me of the boy who cried wolf, because what he is saying cannot be believed. He should talk straight. Are they going to support this or not? I hope that they talk straight and tell us if they are going to support it or not.

Really all they are doing and all they ever do is seek to block and delay, block and delay. We heard the desperate attempt earlier of the member for Brighton, bringing up the very standard clause about when something comes into operation. Anybody in this house who knows anything about legislating would know this is a standard clause and that, if not already gazetted, the legislation would automatically come in on this day. It shows that they do not know how legislation works. He has been in this house for how long and does not know how to legislate.

Cindy McLeish interjected.

Lauren KATHAGE: That is right, because all they know how to do is block. They do not know how to legislate; they only know how to block. They say they want to see action, and then they attempt to stop the action: ‘Not like that. When I said “action”, what I meant was a press release, obviously.’ Well, I am sorry, when you are in government a press release just does not cut it. You have got to do the work, like the fantastic minister here has done the work. It is not about a press release. This bill that is before the house is incredibly important. It is too important for those opposite to attempt to use it for blocking, for politics and to slow the work down. How desperate and sad of them to use such an important issue as a fake, cheap, political trick. ‘Desperate’ is the word.

‘We need action now,’ the member for Brighton calls out, but then actually blocks it. This reminds me of another very important issue in our community. This feels like deja vu. I have read this fairytale before. This is exactly what happened and what we have seen in this place around housing. This government is the government with its skates on –

James Newbury: On a point of order, Speaker, this is a procedural motion on which we are not calling a division. I do not know what the member is speaking about, but it is certainly not on the procedural motion.

The SPEAKER: Order! A point of order is not an opportunity to make a statement to the house. It is a procedural motion, member for Yan Yean. Can you come back to it.

Lauren KATHAGE: I know the standard operating procedure of those opposite, and that is to block. Yes, that is right. The standard operating procedure of the member for Brighton is to block. It is a bit of a Henny Penny approach, running around saying, ‘The sky is falling in.’ The reason I raised housing is because it shows that this is the only thing they know how to do. When something is so important to the community, when this government has done the hard work and is bringing improvement to our community – action, real change for Victorians – all that those opposite know how to do is block. They are seeking to stop the happily ever after, and all they are doing is taking us to a faraway land we do not want to go to. Their fairytale is grim. We do not want a part of it. We are busy with action, and we want to see this bill debated and passed this week.

Tim McCURDY (Ovens Valley) (12:27): I wish to speak in the procedural debate, and I do want to raise that the member for Yan Yean has obviously got a hearing problem, because we are not opposing the second reading. But if she wants to talk about blockers, who were the ones who blocked it two weeks ago? Two weeks ago we brought a bill to Parliament and it was blocked. It was blocked by you, member for Yan Yean, and everybody else on that side. It shows a lack of respect for the Parliament to demand that this bill be debated straight up or in the next couple of days and not the usual 14 days we are used to. It is a lack of respect to the Parliament and certainly to the stakeholders and all Victorians. When you look at this bill, which I have just seen for the first time, it is 130-something pages. If you expect Victorians to understand this bill and particularly stakeholders to understand this bill, they need some time to understand the bill and give us some feedback so that we can talk about what changes may need to be made. We have seen legislation come through this place that within months needs to be fixed up and altered because it has been done very poorly on the trot.

We are talking about rushing this bill through in three days time – between today, Tuesday, and when it goes to the guillotine on Thursday – yet this bill will not start, as the member for Brighton said, until 2026. That is 19 months away. How many more firebombings do we have to have in 19 months? We have had 110 firebombings in the last 18 months, so it is fair to say there will probably be at least another 100 firebombings before we get boots on the ground, as we say.

As I say, it shows a lack of respect to the Parliament. We need time to go through this bill – to let stakeholders and Victorians have their say – so that we get it right, because we know the government does not get it right very often, and this is another example. If we are going to rush this, we need to make sure that we give time for all our stakeholders to have their say. I think it is disgraceful that this government wants to come in today, introduce a bill and have it guillotined on Thursday without proper input.

They had their chance two weeks ago to have their say, and we all could have had time to go through that bill. Now they are not giving us the opportunity to go through this bill. We were going to give them plenty of time to go through our bill, and we are now faced with two days. I have got stakeholders already calling me saying they do not know what is in the bill. I am afraid to say this is just an appalling approach in this place, and I think we should be extending this for the full 14 days.

Mathew HILAKARI (Point Cook) (12:30): I do follow the member for Ovens Valley. I thought it was pretty cynical, the approach that has just been taken and that was taken two weeks ago, because we talk about consultation and admittedly you do not need a lot of consultation when you just pop a media release into the Parliament. It does not need a lot to be dealt with. The Parliament should deal with media releases that are presented by the opposition in the way that we did, which is to reject them and move them on so we can get on with the actual work of government. The reason the member for Ovens Valley complains about 138 pages and going through the detail is because they could only muster up a couple of pages. They did not do the work. They were not interested in doing the work.

I remember going up to Shepparton with the Public Accounts and Estimates Committee (PAEC), and I would have thought that those opposite, who are suddenly so very interested in this bill –

A member interjected.

Mathew HILAKARI: Especially regional MPs, that is exactly right. The member for Shepparton was not there. The members of PAEC from those opposite –

Danny O’Brien interjected.

Mathew HILAKARI: She is welcome to attend with her community. The member for Shepparton is always welcome to attend with the community. Members of Parliament are always notified –

James Newbury: On a point of order, Speaker, it certainly cannot be parliamentary to sledge a member for not attending a committee meeting who is not a member of that committee. That is an outrageous sledge.

The SPEAKER: There is no point of order.

Mathew HILAKARI: These are open hearings that members are all informed of prior to them happening in their communities. I thought it was really important, because there were children from –

Emma Kealy: On a point of order, Speaker, this is a narrow procedural debate. I ask you to bring the member back to what we are actually debating.

Mary-Anne Thomas: On the point of order, Speaker, there is no point of order. The debate, whilst it is a procedural debate, has been wideranging, including from those on the other side. The member on his feet is only responding to what has been said by members on the other side.

The SPEAKER: I remind members that all procedural debates in this chamber are very narrow. To go outside of those procedural debates is not acceptable, nor is sledging.

Mathew HILAKARI: I will go to another matter, which is the member for Brighton and the attempts to try and describe these bills as emergency bills. Of course they are no such thing. The member for Yan Yean raised the issues around the delay. There is a definition of them, and they do not fit that definition. The member for Yan Yean raised the issues around when this bill comes into effect, which is again a standard clause for bills.

It is unfortunate that the opposition seeks to bring forward debates in this way. We are going through a narrow procedural debate, and we are spending 30 minutes on it. The opposition has the gall to then say we do not have enough time in this place to debate the bills that are put forward. What an unbelievable approach to take 30 minutes of debate away from this Parliament to do procedural debates over and over again. Every week there is a set process by the opposition where they seek to waste the time of the house, seek to take time away from those members and seek to take time away from the member for Brighton, who I know has contributions to make on almost every single matter. We always appreciate the matters that are raised by the member for Brighton.

Emma Kealy: On a point of order, Speaker, it is a narrow procedural debate. I ask you to bring the member back or otherwise to ask him to sit down if he cannot stick to your orders.

The SPEAKER: I think the member for Point Cook was being relevant to the procedural motion in relation to opportunities for speaking in the house.

Mathew HILAKARI: This is really the point. We do not want to delay this bill, which the work has been done for, which the minister has been engaging with appropriate authorities on and which the PAEC has delivered a report on. Now is the time to do it. I would like those opposite, who were so desperate to see it done, to get on board or, really, get out of the way.

Danny O’BRIEN (Gippsland South) (12:35): On the very last point of the member for Point Cook ‍– that government wants us to get on board or get out of the way – I do not know whether members opposite actually listen to anything over here. We have already said – the member for Brighton, the member for Ovens Valley – that we are not opposing you going straight to the second reading.

Members interjecting.

Danny O’BRIEN: ‘So get on with it then,’ they say. Well, why did they have to get up and speak? We have the opportunity as per the rules of the house, the procedures of the house, to debate motions such as ‘That debate be adjourned until tomorrow’, and we have made it clear that we will not oppose this one. Whilst the member for Yan Yean wants to give us a whole lot of nursery rhymes, perhaps she needs to read The Boy Who Cried Wolf, because she is crying wolf. They are crying wolf, because they do not seem to actually listen. The members opposite do not seem to understand that we are very happy to have this piece of legislation debated, but it is also our right as members of Parliament to highlight the flaws in the government’s ability to get things done.

We had members behind me when this was introduced saying, ‘You can’t speak on this, because you’ve got to be in government.’ This is not a dictatorship, this is a democracy. It is called a Parliament ‍– a Parliament that every member of Parliament, member for Narre Warren South, has the ability to stand up and move a piece of legislation in. They have the ability to stand up and speak on bills that are brought forward. Indeed, to that very point, the member for Ovens Valley did stand up last sitting week and move a piece of legislation that had the same intent as this piece of legislation that we have just been given, and what happened? It was blocked. Those opposite would like to get up and say that we are blockers when just two weeks ago they had the opportunity to actually get up and do this.

The facts of this legislation and this issue are that we have had over 100 firebombings now in tobacco-related businesses in Victoria. The government announced only in March this year that they were finally going to do something, and here we are in November and finally we are seeing something. I would wager that if it was not for the actions of the member for Ovens Valley last week in actually bringing forward a piece of legislation, that mob over there would have no idea and would still be faffing around with the bill. Indeed it would appear to me that what was sent to the member for Ovens Valley and me ahead of this debate, just before we walked in, has a different number of pages to what we have now been presented. You can feel how warm this piece of legislation is because it has literally just come off the printer. Indeed it seemed that when this was handed around –

A member interjected.

Danny O’BRIEN: It could have been firebombed, this legislation. It seemed that many of those opposite were somewhat surprised too, because they were having a good look at the legislation themselves – ‘Oh, what’s this about?’ – but at the same time we had the Leader of the House saying to the member for Ovens Valley, ‘Why don’t you read the bill?’ We got the bill 20 minutes ago, and it is 138 pages. We would love to have read the bill. We would love to have had a go. I am a speed reader, but I cannot do it that quickly. It is extraordinary.

I take up the comments of the member for Point Cook and indeed the member for Laverton previously about people not attending. I am a member of the Public Accounts and Estimates Committee, as the member for Point Cook is aware, and I did attend the hearings, but I did not attend all of them, because they were scheduled at the same time as shadow cabinet. Equally, when the member for Point Cook says, ‘Where was the member for Shepparton?’, we have upper house members in this building too. Did the Attorney-General attend the PAEC hearings? Did she? The Attorney-General is a member for Northern Victoria, and I do not believe she was there.

As it is with this mob, it is always one rule for them and a different rule for everybody else. We look forward to having a look at this legislation, having just got it 25 minutes ago. In principle we are happy for the government to bring on the bill and have the debate tomorrow. We will have the usual 14 days time to have a look at it; no, sorry, we will have 24 hours to have a look at it. Notwithstanding they have had since March when they announced that they were going to do this, the government have completely botched it. You have taken too long to get on with it, and you stand condemned for that.

Motion agreed to and debate adjourned until tomorrow.