Campaign finance: a neglected public health issue

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Enjoying the Australian election?  Of course you aren’t.

But campaign finance and political donations are a neglected public health issue.

A few years ago I asked the Chairman of an Australian tobacco company “Why do you do it? Why give political donations at all?”

“[F]or the same reasons as Westfield or anyone else”, he answered.  “We think it doesn’t hurt access. Of course it doesn’t.”

“It doesn’t buy favours but it gives you personal access to the [politicians]?”

“You know, the notion that $100,000, and we’re not talking millions, we’re talking hundreds of thousands, gives you much of anything is really just bizarre.  I mean…”

“Is it noticed?  Does it get you a cup of coffee and 15 minutes or is it just irrelevant?”

“Is it absolutely irrelevant?  No. The truth is, government departments see stakeholders.  [I]f we gave no money or if we gave $1 million to whatever the party is that happens to be in power, the Health Department will accept our submissions about the latest packaging restriction or whatever.  Will it take more notice of us because we give them $1 million?  I think the answer is clearly no….people are aware it’s such a small amount of money”.

Later on:

“The reason we do it is because we are obviously a highly regulated industry and … on balance, we think it’s worth doing.  Would it make any difference if we didn’t?  I doubt it.  It probably would make it a bit harder to call up the minister and get, get access…”

This kind of politicking raises an important question.  Why should industries that harm and destroy health have privileged access to politicians and greater influence on public policies – simply because they have more money?

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Restrictions on political donations in NSW

This post briefly reviews restrictions on political donations under NSW law.

Under Commonwealth law, there is no limit for donations to political parties and candidates for political office, although donors must disclose donations above the disclosure threshold (currently $13,000 for the year to 30 June 2016) to the Australian Electoral Office (Electoral Act 1918 (Cth) ss 305A-305B).

In New South Wales, on the other hand, Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 imposes restrictions on political donations and electoral expenditure.  The purpose of these restrictions is to “prevent corruption and undue influence in the government of the State” (s 4A).

Except where specified, the Act extends to both State and local government elections.

There are 5 main restrictions.

Firstly, the Act requires the disclosure of “reportable” political donations and electoral expenditures (as defined) to the NSW Electoral Commission (ss 86-87, 92-93).  The Commission is required to make these disclosures publicly available on its website (s 95).

Secondly, the Election Funding Act imposes caps on political donations (ss 95A-95B) and on “electoral communication expenditures” during the run-up to State elections.  This is known as the “capped expenditure period” (ss 95F, 95H-95I).

For the year ending 30 June 2016, political donations to a registered political party are limited to $5,800, and $2,500 for an elected member or political candidate.  Current caps on electoral communications expenditure are shown here.

However, the restrictions on political donations do not apply to gifts intended for private use by a Member of Parliament (s 85(4)), nor does the cap apply to expenditure by a wealthy politician or candidate on their own campaign.

Although caps on political donations and electoral communications expenditures affect the finances of election campaigns, this is offset by Part 5 of the Act, which regulates public funding of NSW election campaigns.

Thirdly, in addition to caps on political donations and electoral communication expenditure, the Act prohibits a range of “indirect campaign contributions” (s. 96E).  These include the provision of office accommodation, computers or other equipment which are to be used substantially or wholly for election campaign purposes.  It also includes the waiving of payment for electoral advertising expenditure, although this does not apply to the provision of voluntary labour.

Fourthly, in order to remove perceptions that foreign political donors can unduly influence the political process, the Election Funding Act states that political donations can only be accepted from individuals enrolled to vote in the State, or from corporate entities that are either registered to operate a business in Australia or who have an executive officer living in Australia (s 96D).

Finally, the Act prohibits certain donors from contributing to a candidate, politician, or political party at all.  Prohibited donors include: a “property developer”, a “tobacco industry business entity”, a “liquor or gambling industry business entity”, or an industry association representing the donors listed above.

The definition of prohibited donors include “close associates”, including company officers, related bodies corporate, and significant shareholders of property developer, tobacco, liquor and gambling companies (s 96GAA, 96GB).

It is unlawful for a prohibited donor to make a political donation in NSW (s 96GA).

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Campaign finance legislation tested in court

In McCloy v New South Wales [2015] HCA 34 (7 October 2015), a property developer challenged the constitutional validity of those provisions of the Election Funding Act that prevent property developers from making contributions in excess of the cap to a political party.

The plaintiffs included a property development corporation, and a director and close associate of such a company who argued that the ability to make substantial political donations in order to gain access to politicians is an aspect of Australia’s implied constitutional freedom of political communication.

Six of the seven justices concluded that the caps on political donations, and the prohibited donor provisions were not invalid by virtue of infringing the implied freedom of communication on government and political matters that is recognised by the Commonwealth Constitution.

This case has interesting implications for political spending by corporations whose business activities come at a cost to public health.

The McCloy case will be discussed in a later post.

My brain made me do it: will neuroscience change the way we punish criminals?

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Allan McCay and Jeanette Kennett

Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals.

Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment. According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.

Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?

Two approaches

There are two broad approaches to justifying punishing someone who commits a crime. The first is in terms of “moral culpability” or “just deserts”. Crudely, if someone has caused harm, they deserve to have harm inflicted on them in return.

This is known as the “retributive” view; retributivists aim to mete out just deserts, or “just punishment”.

The second approach is to think in terms of the consequences of punishment. If punishment might deter or rehabilitate the offender, or prevent them from committing another crime by incapacitating them, or if it could serve as a deterrent to others, then and only then, is punishment justified.

If the punishment will only harm the individual who committed the crime, but it won’t prevent further crime or benefit others then, on pure consequentialist grounds, it is not justified.

In Australia, judges usually take both retributive and consequentialist considerations into account when determining punishment.

A clear illustration of retributivism is in the sentencing of the serial killer, Ivan Milat where the judge said:

These truly horrible crimes demand sentences which operate by way of retribution […] or by the taking of vengeance for the injury […] the community must be satisfied the criminal is given his just deserts

Currently, Australian offenders are also given the opportunity to make a plea in mitigation after their conviction for a crime. The aim of such a plea is to reduce the severity of punishment.

In some cases, the defence may engage a psychologist or psychiatrist to provide expert evidence about mental or neurological impairment to suggest that an offender is less morally culpable for the crime, and therefore deserving of less retribution.

Neuroscientific tilt

But some academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.

According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour. Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.

We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment.

According to Greene and Cohen, this will make crime reduction the only goal. If they are right, punishment practices will move in the direction advocated by Eagleman.

Case by case

Greene and Cohen made their argument about the demise of retributivism ten years ago. In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence.

We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.

Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain.

Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender. It is thus used to help determine how much punishment an offender deserves.

This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert. It presupposes that questions about appropriate punishment are important ones to answer correctly.

One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability.

Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury”.

The judge went on to say that just punishment was an important factor (among others) in crafting the sentence.

A more striking case relates to the sentencing of former Tasmanian legislative council member Terry Martin for child sex offences. Expert evidence indicated he had developed a compulsive form of sexuality as a result of the effects of medication for Parkinson’s disease on the dopamine system of his brain.

The judge imposed a much more lenient sentence than would have otherwise been the case because of the clear link between the medication and the offending. This link was said to reduce Martin’s moral culpability.

Slow revolution

We cannot be sure how neuroscience will affect the law in future. Indeed, there may even be a backlash against this form of evidence.

What can be said is that Furlan, Martin and other cases show Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations.

This means retributivism is still alive and well, and just punishment still matters to Australian courts. So, at least for now, the impact of neuroscience is not revolutionary.

This article originally appeared in The Conversation and is reproduced with the kind permission of the authors. 

Some upcoming events

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Have you ever thought about refreshing your qualifications by studying postgraduate law at Sydney Law School?

On Tues 31 May 2016, Sydney Law School is holding its Postgraduate Information Evening.

This is an opportunity to talk to Law School academics about options for postgraduate study, including the Master of Health Law program, individual units of study within it, and career possibilities for those with qualifications in health law.

For those who are principally interested in further professional development, it is possible to “audit” units of study and to enrol without undertaking the usual assessment  requirements.

For more details about Sydney Law School’s Masters of Health Law program, including units of study offered in 2016 and 2017, see here and here.

The webpage for Sydney Health Law gives more details about teaching staff, and links to upcoming health law events.

On Wed 20 July, Sydney Law School is hosting an evening seminar entitled: Advancing global and national health security: lessons from SARS and MERS to Ebola and Zika, featuring Professor Lawrence Gostin, Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University, Washington DC, with responses from A/Professor Adam Kamradt-Smith (Department of Government and International Relations, Faculty of Arts and Social Sciences, University of Sydney), and Adjunct Professor Alexandra Phelan (Georgetown University Law School).

On 1-3 November, Sydney Law School is co-hosting, with the Charles Perkins Centre, a conference entitled Governing Food: The role of regulation and policy in meeting 21st century challenges to the food supply.

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California raises the minimum purchase age for cigarettes and e-cigarettes

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Last week was a big week for those who think the law should have a role in helping to reduce the 6 million deaths caused each year by tobacco.

First, tobacco taxes

In 2013, the Rudd government announced a 12.5% increase in the tobacco excise to take effect over 4 years:  1 Dec 2013; 1 Sep 2014; 1 Sep 2015; 1 Sep 2016.

Scott Morrison’s 2016 budget will continue this increase for a further 4 years (2017-2020), taking the price of a pack of 25 cigarettes to around $41 in 2020.

These excise tax increases will be in addition to the usual, bi-annual indexation of excise in accordance with average weekly earnings.

As recognised by the WHO Framework Convention on Tobacco Control, which Australia has signed, tax and price measures are a powerful, cost-effective tool for reducing tobacco consumption, particularly among young people.

Secondly, more wins on tobacco plain packaging

The European Court of Justice has upheld the right of Member States of the European Union to pass plain tobacco packaging laws that exceed the requirements for the standardisation of tobacco packaging contained in the European tobacco products directive.

The Directive includes a requirement for mandatory health warnings, comprising text and colour photographs, covering 65% of the back and front of tobacco packages (Art. 10.1).

Article 24.2 of the Directive preserves the right of member states to introduce further requirements for the standardisation of tobacco packaging “where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive”.

These further measures must be proportionate, and must not be a disguised form of trade restriction.

The ruling of the Court paves the way for the UK’s tobacco plain packaging legislation (the Standardised Packaging of Tobacco Products Regulations 2015 to become mandatory for all tobacco products on 21 May 2017.

Following Australia’s Tobacco Plain Packaging Act 2011 (Cth), plain tobacco packaging has become an export industry, with Ireland also adopting legislation in 2015.

California raises the minimum purchase age for tobacco

But perhaps the most interesting development is the creeping advancement of higher tobacco purchase laws for tobacco within the United States.

On 4 May 2016, California Governor Jerry Brown signed 2 Bills into law that confirm California’s leadership in tobacco control.

Senate Bill No 7 prohibits the sale of tobacco products in California to persons younger than 21 years.

The Bill includes an anti-pre-emption provision giving freedom to local governments to raise the minimum purchasing age even higher.

With a republican-controlled Congress hostile to public health measures, it has fallen to local and city governments, and to States, to innovate and to protect the health of their populations.

California’s action follows the lead of Hawaii and over 125 local and city governments that have passed legislation to raise the minimum purchase age for tobacco to 21.  This trend is likely to continue, both in the United States, and possibly elsewhere.

The California Bill contains an exception for Military personnel in active duty who are aged over 18 but under 21 years.

This is not the first time U.S. legislatures have bent the rules to facilitate smoking by members of the US armed services.

California Senate Bill No. 5, also signed into law, expands the definition of the term “tobacco products” in the Business and Professions Code to include e-cigarettes, and requires retailers to pay a licence fee to sell e-cigarettes.

It requires all cartridges for e-cigarettes to be in child-resistant packaging;

It also extends the smoke-free controls applicable to cigarettes in California, to e-cigarettes – a regrettable omission in the Public Health (Tobacco) Amendment (E-cigarettes) Act 2015 (NSW).

The California Bill also prohibits selling or advertising or furnishing e-cigarettes to persons younger than 21 years.

Time to raise the minimum purchase age for tobacco in NSW?

Raising the minimum purchasing age for tobacco is a sensible next step towards a tobacco-free generation that is healthier and more productive.

Higher minimum purchasing age laws make sense, since few smokers begin smoking or become addicted to nicotine beyond the vulnerable mid to late teens and early twenties.

A 2013 study of smoking initiation rates in New Zealand confirmed that while initiation after age 24 is rare, the highest initiation rates occur among those aged 15-21 years. Over a four-year period, the rate of smoking initiation for those aged 15-17, 18-19, and 20-24 was 14.2%, 7.0%, and 3.1%, respectively.

An expert Committee of the Institute of Medicine concluded that raising the minimum purchasing age would substantially reduce smoking prevalence and smoking-related mortality, given the numerous life transitions young adults experience between 18 and 20 years.

It could also help to improve foetal, maternal and infant health, by reducing the numbers of young parents smoking.

The Tasmanian Government has released a 5-year strategic plan for health that includes raising the minimum legal smoking age to 21 or 25 as an option for consideration.

Such laws could help to reduce health inequalities.  For example, according to Tasmania’s Council of Obstetric and Paediatric Mortality and Morbidity, more than 33% of Tasmanian teenage pregnant women are smokers (2013 figures).

Raising the minimum purchase age for tobacco would not be costly to implement, although resources should be budgeted for its enforcement, and this includes close monitoring and evaluation of its net effects.

Think about it.  Will there be any parents, including smoking parents, who wish their child had been able to buy smokes on their 18th birthday?

Conversely, how many 30 year olds – facing the economic challenges of life, including breaking into the property market – will be thankful they missed the bullet of nicotine addiction and aren’t now making generous weekly donations to Australia’s tobacco giants?

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  For further details, click here, and here.

Central Queensland Hospital v Q: Access to abortion in Queensland and children’s ability to consent to medical treatment

 

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The decision in Central Queensland Hospital and Health Service v Q raises interesting issues in relation to the criminalization of abortion in Queensland and children’s ability to consent to medical treatment.

Q was a pregnant 12 year old girl who was referred to medical staff at the Central Queensland Hospital after asking her GP for an abortion. Q was finding the pregnancy “very stressful emotionally” and had run away from home, self-harmed, and attempted suicide on two occasions.

The medical specialists and counselors that had met with Q supported her decision to terminate the pregnancy, as did Q’s parents. There was evidence that continuing the pregnancy would pose significant risks to Q’s physical and mental health.

Central Queensland Hospital sought orders from the Court authorizing the termination of Q’s pregnancy. These were granted by Justice McMeekin in the Queensland Supreme Court on the 20th of April, followed by the judge’s reasons a week later.

The parens patriae jurisdiction

The Supreme Court’s parens patriae jurisdiction formed the basis for the Court’s intervention. This jurisdiction grants Supreme Courts wide powers in relation to the welfare of children, with the best interests of the child being the Court’s primary consideration.

Could Q consent to the treatment?

As I discuss in an earlier post, a child can consent to medical procedures when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed,” i.e., is Gillick competent (following Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112).

Generally speaking, parents can consent to treatment on children’s behalf when they are not Gillick competent. However, there are some forms of treatment that fall outside the scope of parental consent, known as “special medical treatment.”

Justice McMeekin held that terminations are one such form of treatment (following State of Queensland v B [2008] QSC 231). Accordingly, court authorization for the treatment would be needed if Q herself was not competent to consent to the treatment.

Justice McMeekin found that Q had a good understanding of the risks involved in the procedure, but doubted that she had the maturity to fully appreciate the long-term consequences of a decision to continue with the pregnancy. Accordingly, she was unable to make a fully informed decision and was not competent to consent to the termination. As such, it was appropriate to invoke the Court’s parens patriae jurisdiction.

Could the treatment be performed lawfully?

Queensland’s Criminal Code criminalizes the termination a pregnancy, unless authorized or justified by law. Section 282 of the Code provides that a person is not criminally responsible for performing a termination so long as it is for the patient’s benefit or to preserve the mother’s life, and is reasonable in the circumstances.

Section 286 of the Code also provides that a “person who has care of a child” must provide the necessaries of life for the child, and take reasonable precautions to prevent danger to a child’s health, including their mental health. The definition of “a person who has care of a child” can include hospitals and doctors who care for children.

In determining whether the termination was lawful, Justice McMeekin followed the approach of the Victorian Supreme Court in R v Davidson [1969] VR 667, which held that an abortion would be lawful where it was believed on reasonable grounds that the abortion was necessary to prevent serious danger to the patient’s life or health, and it was not out of proportion to the danger to be averted.

Justice McMeekin held that it was clearly in Q’s best interests for termination of the pregnancy to proceed, as it was necessary in order to prevent serious danger to Q’s mental and physical health. Further, the proposed response was not out of proportion to the danger to Q’s health. Accordingly, the termination would not be considered unlawful, and it could be justified under sections 282 and 286 of the Code.

Justice McMeekin declared that: the termination of the pregnancy through the administration of drugs was lawful; Q should be permitted to undergo the termination; and the hospital’s staff be permitted to perform it. If the drugs failed to effect a termination within five days, Q’s pregnancy could be terminated using a surgical procedure.

What are the implications of the decision for access to abortion services in Queensland?

The criminalization of abortion in Queensland creates a barrier to women’s access to reproductive services. Q was forced to wait weeks for court authorization for her termination. In 2010 a young Cairns couple faced criminal charges for importing the abortion drug Misoprostol and inducing a miscarriage at home. They were ultimately found not guilty, but following that case, many doctors in Queensland stopped performing abortions.

Lucy Clark in The Guardian suggests that similar fears and uncertainties may be behind Q’s doctors’ decision to seek court authorization for her treatment. She may be right in that respect, but it must be kept in mind that the Queensland Supreme Court characterizes abortion as a form of “special medical treatment” that parents cannot consent to. Accordingly, court authorization would still be needed to perform a termination on a child that was not Gillick competent, regardless of abortion’s status under criminal law.

Kerridge, Lowe and Stewart criticize the characterization of abortion as a form of special medical treatment, arguing that it should fall within the scope of parental consent for children’s medical treatment. A change in the common law would be required in order for a termination to be performed on a non-Gillick competent child without court authorization (although the courts could still intervene under their parens patriae jurisdiction).

Nevertheless, the decriminalization of abortion in Queensland is still an important step in enhancing respect for women’s reproductive rights, and in ensuring access to abortion services.

Donors and recipients of embryos and eggs – what happens when the relationship breaks down?

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NSW Health has begun an investigation into allegations published last week by Fairfax media that the recipient of a donated embryo covered up the fact of her successful pregnancy in order to mislead IVF Australia and sever ties with the embryo donors.

Natalie Parker and her husband had three spare embryos left over from previous treatment.  They agreed to make them available to a couple who had been through multiple, unsuccessful IVF cycles.

It was a difficult decision for the Parkers because “those three extra embryos were their genetic offspring, potential siblings for their two young boys…and represented the same hopes and dreams they had for their living children”.

The embryo recipient met Ms Parker on the Embryo Donation Network, a website that “helps you to find the donor or recipient who is right for you”.

Initially both women hit it off.  The recipients agreed to the Parker’s condition for ongoing contact between the two families, and for a relationship between the genetic siblings.

However, after the embryo was transferred, contact between the Parkers and the recipient ceased.

According to Ms Parker, the recipient advised IVF Australia that the two embryos transferred to her were unsuccessful in achieving pregnancy, and that she had begun her period.

A year later, IVF Australia asked the Parkers for instructions about the storage of the last-remaining of the three spare embryos they had donated.

Ms Parker found it odd, if indeed the transfer of the first two embryos had been unsuccessful, that the recipient had not shown any interest in the third embryo, which represented a further chance for her to fall pregnant.

Some months later, Ms Parker tracked the recipient down on Facebook and was shocked to see the photo of a baby boy on the recipient’s page who bore a striking similarity to her own children, and looked to have been born around the time the donor embryos were transferred.

She felt betrayed.

Fairfax media reports that Ms Parker believes the recipient became pregnant with her donated embryo, but chose to cut off all contact, intending to deprive the resulting child of contact with his genetic siblings.

“’I trusted them’, Ms Parker said of the recipients.  “I feel taken advantage of, and incredibly sad that there is a child out there who I helped to create, and who is a part of me and my heritage, who potentially will never know where they came from”.

 

What happens when the relationship between donors and recipients breaks down?

In 2013, more than 12,600 babies were born in Australia as a result of assisted reproductive technology (ART) procedures, including in-vitro fertilisation (IVF),  donor egg, and less frequently, donor embryo.

In New South Wales, the Status of Children Act supports ART procedures by making the “birth mother” of a donated egg or embryo the legal mother, and her husband the legal father.

The Human Tissue Act prohibits trading in tissue.  This means that donors of eggs, sperm or embryos cannot be paid for making donations, although the reimbursement of reasonable expenses is permitted.

When couples who have undergone ART treatment are considering donating spare embryos that are no longer needed for their treatment, they may naturally wish to have some measure of contact with their genetic offspring.

Similarly, if a woman agrees to donate an egg to a woman or couple who need one, commercial incentives are absent.  Egg donors must be willing to undergo an IVF cycle for the sole purpose of helping someone else.

The resulting environment is a competitive one.  Recipients must compete for scarce donors and portray themselves as worthy.  It’s a matter of “please like me”, “please choose me”.  Saying this does not imply any criticism of donors.

According to Fairfax, the incident involving the un-named recipients “raises questions about the lucrative IVF industry’s commitment to ensuring the welfare of all its patients”.

To the extent that this is a criticism of IVF Australia for failing to definitively confirm whether the transferred embryos were successful in achieving pregnancy, it ignores the fact that IVF Australia had no way of “forcing” the recipient to return to IVF Australia, at her own expense, for tests to confirm whether or not the transfer of the donated embryos had failed.

Furthermore, if the result is successful, the recipient will have no further need for the services of the ART provider.  The recipient will be free to seek pre-natal care elsewhere.

Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from the ART provider; after all, pregnancy is the shared goal of both parties.

In this case, however, the recipient evidently wished to be free of the conditions imposed by the embryo donors, which included contact between the genetic siblings.

A recipient who feels this way will obviously need to hide their preferences in order to create the necessary rapport that enables them to be chosen by the donors in the first place.

Fairfax media notes Ms Parker’s strong feelings that it would be in the best interests of the child for him to have ongoing contact with her own children.

The child’s best interests will arise as the key consideration when a court is making a parenting order following the breakdown of a marriage.

In this case, however, the parentage of a child born as a result of a donated embryo is clear: the “birthing parents” are the legal parents.

In my view it is certainly in the best interests of a child born as a result of an ART procedure that they should have the opportunity to make contact with their genetic parents when they reach 18.  What is less clear is whether a genetically-related non-parent should be able to enforce the conditions on which they agreed to donate an egg or embryo – during childhood.

There would seem to be no reason, in principle, why the Family Court could not consider this issue under it welfare jurisdiction.

When exercising its welfare jurisdiction, the child’s interests will be paramount.  It is clear that access rights by genetic parents or enforced contact with genetic siblings would not follow automatically.  It would depend on the Court’s consideration of all the circumstances – assuming, in addition, that the welfare jurisdiction extended to making such orders.

 

Is it an offence to withhold information from an ART provider about a successful IVF pregnancy?

Fairfax reports that the recipient may have breached existing statutory requirements in NSW by providing false information to IVF Australia.

The Assisted Reproductive Technology Act requires ART providers to keep records of “the identity and any other prescribed information about each offspring born as a result of the ART treatment by the ART provider” (s 31(1)(c)).

This duty is further clarified in the Assisted Reproductive Technology Regulations (s. 14) which require the ART provider to keep records of (amongst other things) the name, sex and date of birth of each offspring born following ART treatment provided by that ART provider.

The Act contains an offence provision (s 62) for making a representation that is false or misleading in response to a request for information that (amongst other things) relates to the matters set out in s. 14 above.

This provision attracts a penalty of 200 units, currently $11,000

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  You do not need a law degree to apply.  Click here for further details.

When the tobacco industry dumps cheap eastern European ciggies on the Australian market, it’s time to impose mandatory reporting of sales data

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Fairfax media reports that Australian supermarkets – Coles, IGA, Foodworks – are selling cut-price smokes.

Not surprised.  Supermarkets – including Coles and Woolworths – are among Australia’s largest tobacco retailers; they also offer discounts for alcohol in the co-located alcohol chains they own.

When I hear supermarket spin-doctors talking about their commitment to health, it reminds me of the  commitment to vegetarianism shown by Bruce the shark in the film Finding Nemo.

It turns out that supermarkets are stocking a new variant of Peter Stuyvesant, a brand manufactured by Imperial Tobacco.

Actually, these days Imperial Tobacco goes by the name of Imperial Brands Plc.  They even have a webpage on responsibility where you can read about how they are opposed to slavery and stuff.

Peter Stuyvesant Originals Blue, manufactured in the Ukraine, sells for between $3 and $6 per pack cheaper in Australian supermarkets than Peter Stuyvesant Classic Blue, which is manufactured in New Zealand.

Both brand variants were supplied by Metcash Ltd, a wholesale distributor.

So…is Imperial introducing a brand extension, and using price to differentiate between Originals Blue, and Classic Blue – neither of which are blue, following mandatory plain packaging.

Or is it just dumping cheaper-to-make ciggies from Eastern Europe onto the Australian market to shore up youth sales? – what the hell, we told you it would be a free-for-all on price if you introduced mandatory plain packaging?

Raising the price of tobacco is a powerful way of reducing tobacco consumption, particularly among young people.

But when a manufacturer introduces a cut-price brand variant, which is snapped up by your family friendly local supermarket, it has the opposite effect.

Which might explain why Sarah White, director of Quit Victoria, says “The cigarette companies are not doing this to make money, they’re doing this to keep people hooked”.

 

Out of the horse’s mouth

A few years ago, the CEO of a leading Australian tobacco manufacturer told me:

We do quite a lot of work on trade marketing, which is getting the product into store fresh in the right place, in the right category, the right selection.  So we work with people like Coles, Woolworths, independents, trying to make sure that we’ve got the right selection of product for the right consumers in the area. Pricing is the other tool that we’re allowed to use…it’s a free market, the ACCC are very, very strong on competition in this jurisdiction….I would say about, about 90% of our work and our dollars are spent on getting the right pricing definitions in the marketplace.

So you have it from the horse’s mouth.  Australian tobacco companies spend much of their time and money massaging their supply chains to achieve retail prices that will maximise sales of their brands within each geographic market and market segment.

The same thing happens overseas.  Reliably late, the US Federal Trade Commission has just released their Cigarette Report for 2013.

It reveals that the tobacco industry spent US$8.95 billion on tobacco advertising in 2013.  Over 85% of this spend (US$7.6 billion) was paid to cigarette retailers in the form of price discounts.

It’s time we discovered the facts about similar behaviour by Australian tobacco manufacturers and wholesalers.

In 2011, the National Preventative Health Taskforce called for a comprehensive national surveillance system that included wholesale and retail sales datasets for alcohol and tobacco.

Gartner, Chapman and colleagues have also made the case for mandatory reporting of tobacco sales data several years ago in the Medical Journal of Australia.

Sales data is critical to evaluating the effectiveness of tobacco controls, as well as the scale of price discounting by the industry itself.

Such data is available to the industry – which uses it to constantly finesse their marketing strategies, in order to maximise cigarette sales.  However, it is not currently available to government.

Collecting such data would not mean that a company’s commercial in-confidence information was disclosed to competitors.

Tobacco is not an ordinary market.  More tobacco sales ultimately means more death and disease, more misery for families, more health care costs.

When Australian cigarette manufacturers dump cut-price ciggies from Eastern Europe into Australian supermarkets, it’s time to impose mandatory reporting of sales data for all tobacco products supplied to retailers, disaggregated by local postcode or area.

Then government would have a clearer basis for responding definitively with policies to discourage youth sales by keeping prices high.

A short review of the NSW Government’s “one-punch” alcohol control reforms

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In February 2016, former High Court Justice the Hon. Ian Callinan AC QC was appointed by the NSW Government to review the effectiveness of the “lockouts” and the 3am liquor sales cessation period on the Sydney CBD entertainment precinct, the Kings Cross precinct, and potential displacement areas.

Mr Callinan will also consider the impact of the 10pm closing time for bottleshops, with a particular focus on rural and remote communities.

These are perhaps the best known “one punch” alcohol controls introduced by former NSW Premier Barry O’Farrell’s government following a number of highly-publicised assaults by alcohol-affected persons on Sydney streets.

 

Why did the NSW government act?

In July 2012, 18 year old Thomas Kelly was walking with his girlfriend down Victoria Street, Kings Cross, when he was punched in the face.  It was an unprovoked attack.  He fell back, cracking his skull on the pavement.

His life support system was turned off two days later.

Ralph Kelly, Thomas’ father, told the media his son’s life had been finally taking off”, after difficult times at school, with the good news of a cadetship with a Sydney accounting firm.

The young man who threw the punch, Kieran Loveridge, was sentenced to 4 years for manslaughter.

The Crown appealed on the grounds that the sentence was manifestly inadequate.  The NSW Court of Criminal Appeal agreed, extending the minimum sentence to ten years.

In December 2014, Loveridge’s application for leave to appeal to the High Court was refused.

Thomas Kelly was not an isolated incident.

For example, Daniel Christie hit the pavement just metres from where Thomas Kelly fell, after being fatally punched on New Year’s Eve 2013.

Fady Taiba spent 19 days in a coma after refusing an intoxicated man entry to Bar 333 in September 2013.

34-year old Brazilian Lucio Stein Rodrigues was killed by a “ferocious” punch outside a pub in the CBD in November 2013.

Between 2000 and December 2013, 90 people were killed in this way, by a single blow to the head.

 

Preventive alcohol controls prior to the “one punch” alcohol laws

According to John Green, from the NSW Branch of the Australian Hotels Association, “It’s not good enough anymore to use hotels as whipping posts…We need to target those thugs in the community who think it is OK to pre-fuel and hit people.”

But how exactly do you “target thugs”, before – rather than after – they become violent, without burdening the service of alcohol?

Three “preventive” controls are worth mentioning.  These controls were already in place when Thomas Kelly, Daniel Christie and others like them hit the pavement.

Firstly, s. 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) authorises police to give “move on” orders to people who are drunk in public.

In 2011, Parliament introduced the offence in s 9 of the Summary Offences Act 1988 (NSW).  This is an offence for continuing intoxicated and disorderly behaviour, following a section 198 order.

According to the NSW Ombudsman, over a 1 year period (October 2011-September 2012), NSW police issued 110,949 formal orders to intoxicated persons. 33,580 were orders issued under s. 198.

Secondly, under s 206 of the Law Enforcement (Powers and Responsibilities) Act, police can detain an intoxicated person who is behaving in a disorderly manner, or in need of physical protection due to their intoxication.

Finally, the NSW Government had already introduced “three strikes” legislation, which imposes “strikes” when a licensee or manager commits one of a number of serious offences in relation to an alcohol licence.

After a third prescribed offence, the Independent Liquor and Gaming Authority can decide whether to impose a third strike, and thereafter to cancel, suspend or impose additional conditions on a liquor licencee’s license.

Preventive laws have taken different forms since 2014.

 

The NSW Government’s “one punch” alcohol reforms

Five reforms are worth noting; for a broader discussion of the government’s response, see here.

Firstly, the Government introduced sections 25A-25B into the Crimes Act 1900 (NSW).  Section 25A is a new statutory offence for an assault causing death.  Section 25B imposes a minimum mandatory custodial sentence of 8 years for this offence if the accused had a blood alcohol concentration of 0.15 (3 times the legal driving limit).

Amendments to the Law Enforcement (Powers and Responsibilities) Act 2002 (s. 138G) authorise police to detain and require a person to undergo breath testing (within 2 hours of the alleged commission of this offence), or to give a blood or urine sample at a hospital, within 4 hours of the alleged commission of this offence.

In 2014, a Bill (the Crimes Amendment (Intoxication) Bill 2014) was introduced to create a number of additional aggravated intoxication offences, with a minimum period of imprisonment for each offence.  However, it was never passed.

Secondly, changes to the Liquor Act 2007 and its regulations introduced the idea that a geographic area can be declared to be a “prescribed precinct” (s 116C).  The Act then sets out the kinds of restrictions the regulations can impose on premises within a “prescribed precinct” (s. 116I).  These may include:

  • Restricting use of glasses or breakable containers;
  • Prohibiting or restricting sale of certain kinds of liquor;
  • Prohibiting patrons from entering licensed premises at certain times (ie “lock outs”);
  • Requiring incident registers to be kept;
  • Requiring licensees to contribute to the costs of measures to prevent violence and alcohol-related harm in the precinct.

Additionally, the Liquor Act 2007 and Liquor Regulation 2008 set out a number of specific controls that apply to the Kings Cross Precinct, and the Sydney Entertainment Precinct, respectively: these take effect as licence conditions applicable to licencees within each precinct.

The most significant controls that apply to the new CBD precinct are the “lock out” and liquor sales cessation periods.  These are discussed separately below.

Thirdly, the Liquor Act authorises a police officer to issue a temporary banning order that prohibits a person from entering or remaining on specified licensed premises within a prescribed precinct for up to 48 hours (s. 116F).

Fourthly, the Act provides the basis for payment of risk-based licence fees by liquor licensees.  Fees are set by taking into account the location of the premises, its trading hours, patron capacity, offences committed, and compliance with licence requirements (s. 58A).

Click here for an overview.

The final control included in this short review is the 10pm closing time for bottle shops and other take-away retail liquor establishments: s 12(1C) of the Act.  This was discussed in a previous post.

 

Lock out and liquor sales cessation controls

There are 7 categories of liquor licence in NSW.  Taking the Sydney CBD precinct as an example, under ss 53Y-53Z of the Regulations, the lock out and liquor sales cessation restrictions apply specifically to hotels, clubs, high-risk venues (including large hotels which operate after midnight), and premises to which a “level 2” licence applies (due to previous incidents of violence).

The “lock out period” is defined in s 3 of the Regulations to mean after 1.30am until the beginning of the standard trading period the following day.  During a lock out period, new patrons may not enter the premises, although patrons can remain on the premises, and leave at any time.

During a liquor sales cessation period, hotels, clubs and high risk venues must not sell liquor.  The liquor sales cessation period” is defined to mean between 3am until the beginning of the following day’s trading period.

Additional controls apply to after midnight trading (the general late trading period) in respect of declared venues with a history of alcohol-related violence.  For example, glasses must be removed from patrons and drinks cannot be sold in glasses during the late (after midnight) period.

During the general late trading period, venues within the Sydney CBD Entertainment Precinct are also prohibited from selling certain kinds of alcoholic drinks (see Regs s. 53ZB).  These include:

  • Shots (any drink designed to be consumed rapidly);
  • drinks containing more than 50% liquor;
  • any ready to drink beverage containing more than 5% alcohol by volume, and
  • drinks containing more than 30ml spirits.

However, these restrictions do not apply to cocktails.

During the late general trading period, no more than 4 alcoholic drinks, or the contents of one bottle of wine, may be served to the same patron.

This requires licencees to keep tally of the number of drinks sold to any one patron.

Under s 53ZE, licencees of premises within the CBD Precinct must keep a “round the clock” incident register.  Where a violent incident does occur, the licencee must preserve and keep the area where the incident occurred intact (s 53ZF).

S 53ZG also requires licencees to exclude entry to people wearing clothing or symbols of a number of motorcycle clubs such as the Bandidos, Gypsy Jokers, or Rebels.

 

Are NSW’s one-punch laws working?

One man who has seen it all is Dr Gordian Fulde, head of emergency at Sydney’s St Vincent’s Hospital, Darlinghurst, who was named Senior Australian of the year in 2016

Decades ago, nobody would punch a nurse”, he says.  But these days spitting, punching and kicking are common occurrences.

Dr Fulde is the lead author of a recent paper in the Medical Journal of Australia comparing emergency presentations to his hospital’s emergency department before and after the one-punch reforms.   The study confirms that presentations for alcohol-related serious injuries are much higher during the “high alcohol time” from 6pm Friday to 6am Sunday.

This study also found that after the introduction of the one-punch laws in 2014, there was a 25% reduction in patients presenting with serious alcohol-related injuries during the high alcohol period.  The authors note: “The reduction was most marked in the period after midnight, which corresponds with the main thrust of the changed regulations”.

According to a study by the NSW Bureau of Crime Statistics and Research, the one-punch reforms were associated with an immediate 32% reduction in the number of reported assaults in Kings Cross, and a 26% reduction in assaults in the Sydney CBD.

These reductions suggest that changes to alcohol trading hours – including lock-outs, liquor sales cessation periods, and bans on late-night take-away liquor sales – are part of an effective package for reducing alcohol-related violence.

However, as with tobacco controls, it may be difficult to definitively quantify the specific contribution of each measure and to link it to reductions in violent assaults.  It is the overall impact of the package of controls that speaks.

Recently, a grassroots organisation called “Keep Sydney Open” have opened a petition to the Premier, Mike Baird, to remove the lockout and last drinks laws.

What is their solution to unprovoked attacks by alcohol-affected young men who are angry at the world?

“We demand smarter solutions — a holistic and lateral approach to preventing assaults which examines transport, CCTV, tougher sentencing, density and diversity of licensed premises, venue management, culture as a placating tool and the tendency towards violence among certain groups of individuals.”

CCTV, tougher sentencing, freezes on new licences?  These are not new ideas, as a glance at the Act and Regulations illustrates.

“Culture as a placating tool”?  What do they have in mind here?

The uncomfortable truth is that Australia’s alcohol culture is partly created by the easy availability of alcohol, the ubiquitous nature of alcohol advertising, and the relative affordability of alcohol (availability, advertising, and price).

Lawmakers may find it more difficult than they would hope to meet community expectations about safety from unprovoked, alcohol-fuelled assaults without relying on laws that burden the business of service of alcohol, and impact indirectly on levels of alcohol consumption.

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  You do not need a law degree to apply.  Click here for further details.  And click here for more information about Sydney Law School’s health law team.

Upcoming Conferences: Governing Food

Governing Food

Governing Food: The Role of Law, Regulation and Policy in Meeting 21st Century Challenges to the Food Supply

Dates: Tuesday 1st November – Thursday 3rd November 2016

Venue: Sydney Law School

Sydney Health Law is hosting the Governing Food Conference in November this year, in conjunction with the University of Sydney’s Charles Perkins Centre and with sponsorship from The George Institute for Global Health.

 Governing Food will bring together researchers and practitioners from a range of disciplines to explore the role of law, regulation and policy in promoting a healthy, safe and sustainable food supply. The conference will be opened by a public keynote address on Tuesday the 1st of November, to be delivered by Professor Corinna Hawkes from the Centre for Food Policy at City University London. The main days of the conference will be Wednesday the 2nd of November and Thursday the 3rd of November.

The call for abstracts and further details about the conference can be found at this address. You can also contact Dr Belinda Reeve in relation to any questions about the conference: belinda.reeve@sydney.edu.au.

We hope to see you there!

 

Could a sugary drinks tax improve Australian diets?

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Jamie Oliver celebrating the introduction of the sugary drinks tax in the UK. Source: smh.com.au

The UK tax on soft drink and Jamie Oliver’s call to action

 Today Britain announced that from 2017 it would levy a tax on soft drinks containing more than five grams of sugar per 100 millilitres, as part of efforts to contain rising levels of childhood obesity. The announcement prompted Jamie Oliver to post a video on Facebook encouraging other governments to follow suit, and telling Australia and other countries to “pull your finger out” on soft drink taxes.

Should Australia introduce a sugary drinks tax? Would a tax be an effective obesity prevention measure? Or would it just be a slow and costly way of raising the ire of the food industry?

 Australians drink a lot of soft drink

Around one third of Australians drink about a can of soft drink a day, making Australia one of the top ten soft-drink consuming countries in the world. Soft drink consumption among young people is particularly concerning, with around 47% of children (aged between two and 16 years) consuming sugar-sweetened beverages (SSBs) every day.

Why is soft drink bad for our health?

A large number of studies show that soft drink consumption increases the risk of obesity, diabetes, heart disease and dental caries, and soft drink consumption has been linked to approximately 184,000 deaths per year globally.

Soft drink has a large of amount of added sugar (when it’s not artificially sweetened), making it a key source of added sugar in our diets. Drinking soft drink displaces the consumption of healthier beverages, and we tend not to compensate for the calories we drink by reducing our food intake. Drinks that are high in sugar have been shown to reduce appetite control, which also contributes to weight gain.

Around 60% of Australian adults and 25% of children are either obese or overweight and obesity has overtaken smoking as the leading cause of preventable death and illness. Reducing soft drink consumption could be one way of reducing the burden of obesity and chronic disease, and its impact on Australia’s health care system.

Soft drink taxes are gaining momentum

Public health experts recommend soft drink taxes as one component of a comprehensive obesity prevention strategy, and a number of countries have taken this recommendation on board.

In September 2013 the Mexican congress passed an excise tax on SSBs of one peso per litre – a price increase of approximately 10%. Mexico also introduced an ad valorem tax of 8% on a defined list of non-essential energy-dense foods.

The US city of Berkeley passed a one cent per ounce excise tax on SSBs in November 2014, becoming the first US city to levy a targeted health-related tax on soft drink.

Since January 2015 Chile has levied an 18% ad valorem tax on drinks with a sugar content of more than 6.25 g of sugar per 100 mL, including energy drinks and sweetened waters. Sugary drinks with less than 6.25 g of sugar per 100 mL are taxed at 10%.

These are just a few examples of jurisdictions with soft drink taxes; others include France, Mauritus, and Barbados. Countries are also experimenting with taxes on other unhealthy food products, or on specific nutrients such as fat or salt, often in tandem with taxes on sugary beverages.

Are soft drink taxes effective?

Soft drink taxes are a relatively new initiative, meaning that there’s not much ‘real world’ evidence of their impact. However, modelling studies suggest that tax increases are effective in reducing consumption of SSBs, and a recent evaluation of Mexico’s soft drink tax provides more concrete evidence of the effectiveness of taxes in shifting consumption patterns. The study found that the average volume of taxed beverages purchased monthly was 6% lower after the tax was implemented, with reductions accelerating over time, and reaching a 12% decline by December 2014.

The effects of soft drink taxes on diet-related health are less certain, but there is some evidence for this relationship too. One review of the evidence found a statistically significant association between “substantial” food taxes and weight outcomes, particularly in relation to children, adolescents, low socioeconomic status populations, and those at risk for overweight.

Other studies are more equivocal, but keep in mind that this a recurring problem in public health – the difficulty of showing that one initiative in isolation will lead to significant weight reductions. Experts agreed that a number of complementary measures will be required if we are to see meaningful reductions in obesity and overweight.

What are some of the criticisms of soft drink taxes?

 One of the main concerns about soft drink taxes is that they are regressive. In theory, SSB taxes have a larger impact on lower socioeconomic groups, given that such groups pay a higher proportion of their income towards soft drink purchases. However, the evaluation of Mexico’s soft drink tax found that reductions in soft drink purchasing were greatest among low SES households (averaging 9.1%), suggesting that low SES groups were the most price elastic and thus benefited the most from the tax.

Governments can also take steps to offset the regressive nature of soft drink taxes, for example by targeting subsidies for healthy foods and beverages to low-income households, which could be paid for using the revenue generated by soft drink taxes. Alternatively, tax revenue could be used to address disparities in health or socioeconomic status more broadly.

The effectiveness of an excise tax in reducing SSB consumption hinges on the extent to which the tax is passed on to consumers in the form of higher retail prices. Distributors or retailers may “under shift” the tax by absorbing its cost, thus lowering their profit margins, but sustaining sales. Lower than expected price increases may undermine the tax’s public health benefit. However, evaluations of SSB taxes in Berkeley and Mexico find that manufacturers and distributors have mostly passed on the costs of the taxes to consumers, suggesting that these taxes will have the desired effect.

What’s the situation in Australia?

Australia’s GST exempts many foods that are a core component of a healthy diet, such as fresh fruits and vegetables. Sugary drinks are subject to the GST, meaning that there is a kind of differential tax on soft drinks. However, the GST is not intended for this purpose and operates differently to a specific, health-related soft drink tax.

In 2008 the National Preventative Health Taskforce recommended that the government commission a review of economic policies and taxation systems, and use economic incentives to decrease the production and consumption of unhealthy foods and beverages. It cautiously recommended a soft drink tax, given the uncertain impact of these taxes on consumer health.

In its response to the Taskforce, the then federal Labor Government stated that it had already commissioned an independent review of the Australian taxation system, i.e., the Henry Tax Review in 2010. This review did not recommend health-specific taxes on foods and beverages (despite recommending tax hikes for tobacco and alcohol) and the Government said that it would not consider another review. Instead, the Government pointed to voluntary food reformulation efforts taking place through the Food and Health Dialogue.

Should Australia introduce a soft drink tax?

 Jamie Oliver’s right. The Australian government does take a “weak, pathetic” approach to obesity prevention, and we could do better.

The evidence shows that an SSB tax could have a real impact on Australian’s soft drink consumption habits, as does the effectiveness of tobacco taxes and other food taxes such as Denmark’s tax on saturated fat. Soft drink has no nutritional value, making it one of the more uncomplicated food products to tax.

As well as shifting consumption patterns, soft drink taxes could prompt companies to reformulate drinks to reduce their sugar content, or to introduce new, healthier products. Taxes could also generate significant revenue for health promotion activities, preferably targeted at the most vulnerable populations.

The health outcomes of SSB taxes need further research, but this should not stop the Government from “pulling its finger out” as suggested by Jamie Oliver, and introducing a tax on soft drink, as many other countries are doing. An SSB tax would send a clear message that the government is committed to protecting the health of Australians, even if it means taking on the powerful multinational companies that dominate the beverage industry.