EXPLANATORY STATEMENT
Trans-Tasman Mutual Recognition (Continuation of Temporary Exemption of Public Health (Tobacco and Other Products) Act 2023) Regulations 2025
Issued by the Authority of the Minister for Health and Ageing for the Minster for Industry and Innovation
Trans-Tasman Mutual Recognition Act 1997
Public Health (Tobacco and Other Products) Act 2023
Trans-Tasman Mutual Recognition (Continuation of Temporary Exemption of Public Health (Tobacco and Other Products) Act 2023) Regulations 2025
The Trans-Tasman Mutual Recognition (Continuation of Temporary Exemption of Public Health (Tobacco and Other Products) Act 2023) Regulations 2025 (the Regulations) continue the temporary exemption of the Public Health (Tobacco and Other Products) Act 2023 from the Trans-Tasman Mutual Recognition Act 1997. This ensures that tobacco products imported from New Zealand to be sold in Australia must comply with Australian legislative requirements.
The Public Health (Tobacco and Other Products) Act 2023 (the Tobacco Act) provides the framework to discourage the use of tobacco and other products. Relevantly, the Act requires the appearance and physical features of a tobacco product to comply with any requirement prescribed by the Public Health (Tobacco and Other Products) Regulations 2024 (the principal Regulations).
The purpose of the proposed Regulations is to continue the effect of a temporary exemption of the Trans-Tasman Mutual Recognition Act 1997 (the TTMR Act) for the Tobacco Act. That exemption is currently provided for in section 12 of the principal Regulations. The exemption will be continued until 31 March 2026 while steps are taken to progress a permanent exemption. The TTMR Act permits goods imported from New Zealand to be sold in Australia without complying with local Australian sale requirements, so long as the requirements for sale in New Zealand are met. By continuing the exemption for the Tobacco Act from the operation of the TTMR Act, the proposed Regulations will continue to ensure that the Australian regulatory requirements in relation to tobacco products also apply to goods imported from New Zealand to be sold in Australia.
Section 47 of the TTMR Act sets out the circumstances in which an exemption may be continued under the TTMR Act. These include that it must be continuing an exemption under section 46 and at least two thirds of the participating jurisdictions under the Act must have endorsed it. These conditions are met by the proposed Regulations.
The Tobacco Act modernises and simplifies existing tobacco control provisions and introduces new measures to support the objective of discouraging smoking and tobacco use. The Tobacco Act prescribes the requirements for tobacco products, for example, requirements for plain packaging, health promotion inserts, updated health warnings, on-product health messages. The Tobacco Act also prohibits certain product design and composition, for example, prohibitions on certain ingredients, flavourings, and devices (such as flavour capsules and crush balls) that enhance product appeal.
The Tobacco Act makes it an offence to sell, supply, purchase, package or manufacture tobacco products or packaging for retail sale, that are not compliant with requirements of the Tobacco Act. These offences apply to individuals, manufacturers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the requirements.
The TTMR Act gives effect to the mutual recognition principles adopted by the Commonwealth, State and Territory Governments of Australia and the Government of New Zealand (the participating jurisdictions), relating to the sale of goods and the registration of occupations. In respect of goods, a good that can be sold legally in New Zealand may legally be sold in Australia. The TTMR Act overrides any local laws that regulate the manufacture or sale of goods provided that the New Zealand requirements for sale are met. The TTMR Act does provide, however, for circumstances where the mutual recognition principle will not apply. These circumstances are covered by provisions for exclusions, permanent exemptions and temporary exemptions.
The Tobacco Plain Packaging Act 2011, Tobacco Plain Packaging Regulations 2011 and s 134 of the Australian Consumer Law (to the extent it relates to the Competition and Consumer (Tobacco) Information Standard 2011 (now consolidated into the Tobacco Act) were permanently exempt from the mutual recognition principle as articulated in the TTMR Arrangement. Accordingly, all tobacco products produced or imported into New Zealand which do not comply with Australian plain packaging requirements and requirements to display graphic health warnings cannot be sold in Australia, even though they may be lawfully sold in New Zealand.
The provisions in the Tobacco Act and principal Regulations which incorporated the tobacco plain packaging laws and instruments above continue to be exempt from the TTMR Act (pursuant to section 4(3) of the TTMR Act). The new tobacco product or packaging measures included in the Tobacco Act and principal Regulations are subject to a temporary exemption that is to be continued by these Regulations for a further period until 31 March 2026. The new measures include for example, the requirement to include health promotion inserts in packaging which provide smokers with information to encourage them to quit and the requirement for cigarettes containing a filter to have an “on-product health message” printed on the cigarette filter paper.
Consultation
Consultation with participating jurisdictions has occurred, resulting in agreement from two thirds of participating jurisdictions to extend the temporary exemption of the Tobacco Act from the TTMR Act.
Impact Analysis
The Office of Impact Analysis has advised that an Impact Analysis is not required as the exemption is machinery in nature.
The proposed Regulations are a legislative instrument for the purposes of the Legislation Act 2003. The whole of the proposed Regulations commence the day after registration. Details of the proposed Regulations are set out in Attachment A.
This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.
ATTACHMENT A
Details of the Trans-Tasman Mutual Recognition Legislation Amendment (Tobacco Plain Packaging) Regulation 2013
Section 1 – Name of Regulation
This section would provide that the name of the Regulation is the Trans-Tasman Mutual Recognition (Continuation of Temporary Exemption of Public Health (Tobacco and Other Products) Act 2023) Regulations 2025.
Section 2 – Commencement
This section provides that the Regulation commence on the day after registration.
Section 3 – Authority
This section provides that the Regulation is made under section 47(4) the Trans-Tasman Mutual Recognition Act 1997.
Section 4 – Definitions
This section provides that in this instrument ‘Act’ means the Trans-Tasman Mutual Recognition Act 1997.
Section 5- Repeal of this Instrument
This section provides that this instrument is repealed at the end of 31 March 2026.
Part 2- Continuation of temporary exemption
This section provides that for the purposes of subsection 47(3) of the Act, the Public Health (Tobacco and Other Products) Act 2025 is declared to be exempt from the operation of the Trans-Tasman Mutual Recognition Act 1997. A note provides that this section is to continue the effect of the exemption under section 46 of the Act and that exemption is provided for in section 12 of the Public Health (Tobacco and Other Products) Regulations 2024.
The consultation requirements for this Regulation have been met. On 11 March 2025, the then Minister for Industry and Science authorised the then Minister for Health and Aged Care to seek agreement to extend the temporary extension to the exemption of the Public Health (Tobacco and Other Products) Act 2025 from the Trans-Tasman Mutual Recognition Act 1997. On 20 March 2025, the Prime Minister wrote to each Australian State Premier/Chief Minister and the New Zealand Prime Minister to seek agreement to the extension. Agreement from two thirds of the majority of jurisdictions is required under the Trans-Tasman Mutual Recognition Act 1997 to proceed with the extension of the exemption. Reponses outlining agreement to the extension were received from the New Zealand Prime Minister and Australian state and territory governments of the Australian Capital Territory, Northern Territory, New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Trans-Tasman Mutual Recognition (Continuation of Temporary Exemptions) Regulations 2025
This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Regulation is to continue the exemption of the Public Health (Tobacco and Other Products) Act 2023 (the Act) from the operation of the Trans‑Tasman Mutual Recognition Act 1997 (the TTMR Act).
The TTMR Act permits goods imported from New Zealand to be sold in Australia without complying with local Australian sale requirements, so long as the requirements for sale in New Zealand are met.
By continuing the exemption it ensures that tobacco products from New Zealand cannot be sold legally in Australia unless they comply with Australian requirements.
The Tobacco Act modernises and simplifies existing tobacco control provisions and introduces new measures to support the objective of discouraging smoking and tobacco use. The Tobacco Act prescribes the requirements for tobacco products, for example, requirements for plain packaging, health promotion inserts, updated health warnings, on-product health messages. The Tobacco Act also prohibits certain product design and composition, for example, prohibitions on certain ingredients, flavourings, and devices (such as flavour capsules and crush balls) that enhance product appeal.
The Tobacco Act includes offences related to selling or possessing tobacco products that are not compliant with requirements of the Tobacco Act. These offences apply to individuals, manufacturers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the tobacco product and packaging requirements.
Human rights implications
Freedom of expression
The continuation of the exemption of this legislation from the operation of the TTMR Act may engage Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Article 19(2) of the ICCPR protects the right to freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of a person’s choice.
It is possible that by prohibiting the sale in Australia of tobacco products that are not compliant with Australian regulation from New Zealand, with New Zealand health warnings, the Regulation limits the right to freedom of expression.
Legitimate objective: Regulation is justified under a permitted limitation
The right to freedom of expression is not absolute. It carries with it special responsibilities, and there are several grounds on which it may be restricted. Article 19(3) of the ICCPR expressly states that the right to freedom of expression may be subject to limitations necessary for the protection of public health.
The limitation (if any) of the right to freedom of expression in the Regulation, aims to achieve a legitimate objective - the protection of public health - by contributing to Australia’s efforts to reduce smoking rates and to reduce the associated health risks of smoking and vaping. The Act modernises and simplifies existing tobacco control provisions and introduces new measures to support the objective of discouraging smoking and tobacco use.
Tobacco remains the leading cause of preventable death in Australia. In 2018, tobacco use was estimated to kill almost 20,500 Australians.
Reasonable and proportionate: Regulation will be effective to achieve the desired ends and does not impinge on freedom of expression to a greater degree than is necessary
New Zealand has an existing tobacco industry presence. Although New Zealand has a number of tobacco product requirements that align with Australian measures they are not as far reaching at this point in time. The new requirements such as on-product health messages on cigarettes with a filter and to include health promotion inserts in packaging are not currently required in New Zealand.
By exempting the Tobacco Act from the operation of the TTMR Act, the Regulation continues to ensure that tobacco products from New Zealand that do not comply with Australian requirements cannot be sold legally in Australia. The Regulation does not prohibit or restrict the sale of such tobacco products in New Zealand. For these reasons, the Regulation is reasonable and proportionate in achieving the above-mentioned legitimate objective.
Necessary: no less restrictive means of achieving the desired ends
The World Health Organization Framework Convention on Tobacco Control (WHO FCTC) imposes a comprehensive set of obligations for Parties to implement and manage tobacco control programmes. Article 11 of the WHO FCTC requires Parties to adopt and implement effective measures in respect of the packaging and labelling of tobacco products, including health warnings and other appropriate messages.
Tobacco product and packaging measures contribute to efforts to reduce smoking rates in Australia. The tobacco product and packaging requirements are not an alternative to other tobacco control measures but are an integral part of the comprehensive suite of measures adopted by the Government to respond to the public health problems caused by tobacco.
Australia’s history of progressively more comprehensive and stringent tobacco regulation is consistent with international best practice as well as steps to combat the global health epidemic posed by tobacco smoking through implementation of the WHO FCTC.
For these reasons, the exemption provided for by the Regulation is the least restrictive means of achieving the above-mentioned legitimate objective.
Right to health
By ensuring that tobacco products from New Zealand, which are not required to include some measures under the Tobacco Act (such as on product health messages or health promotion inserts) cannot be sold legally in Australia, the Regulation engages the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 12(2)(c) of the ICESCR requires Parties to take steps to achieve the full realisation of the right of everyone to the highest attainable standard of physical and mental health, including those steps necessary for the prevention, treatment and control of diseases. The Committee on Economic, Social and Cultural Rights considers that this “requires the establishment of prevention and education programmes for behaviour-related health-concerns…and the promotion of social determinants of good health”.
The Tobacco Act promotes the right to health by aiming, through the achievement of the above aims, and as part of a comprehensive range of tobacco control measures, to contribute to efforts to reduce smoking rates and thereby reduce the significant health and economic effects of tobacco usage.
Conclusion
The Regulation is compatible with human rights because it advances the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate.
Mark Butler, Minister for Health and Ageing for the Minister for Industry and Innovation