The state laws that show human rights do not block illegal tobacco crackdown

Human rights law does not stand in the way of a crackdown on illegal tobacco retailers but it is important to get the rules right to avoid the risk of tougher penalties being challenged, a legal expert says.

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Tess Rooney, a lecturer at the University of Canberra's law school, said the ACT's Human Rights Act was not a legal barrier to tougher action on illegal tobacco sales.

"Nobody's suggesting that there is a right to sell illegal tobacco. Under the ACT Human Rights Act, individuals do retain rights, even when they're suspected of a crime," Ms Rooney said.

"They include things like fair hearing rights, presumption of innocence, privacy, potentially the right to work, although that would be difficult to draw the link."

Illegal cigarettes seized by the Australian Border Force in April 2026. Picture by Australian Border Force

Ms Rooney said Queensland has similar human rights laws to the ACT. The state, which brought in tough penalties on illegal tobacco sellers late last year, has won praise from the federal government and public health experts for disrupting the tobacco black market.

"So, closing premises could affect legally recognised rights and obligations under fair hearing rules, whether an affected individual can challenge the evidence, obtain a fair determination by an independent court or tribunal, as they do in the Queensland laws," she said.

"There's also some fairly strong human rights around the presumption of innocence, relevant where someone faces a criminal charge, particularly if new offences reverse the burden of proof. But it's important to note that an administrative closure is not automatically a criminal punishment."

"We will work through human rights considerations in the ACT and we will also understand the need for those laws and look at the evidence if those laws have been effective in other jurisdictions. So we're taking all this into consideration at the moment," Dr Paterson told ABC radio.

A 34-page human rights compatibility statement was prepared by Queensland's health minister, Tim Nicholls, to accompany the state's laws that introduced rapid closure powers and higher fines for shops caught selling illegal tobacco.

The statement addressed the law's impact on freedom of movement, property, privacy and reputation, liberty, fair hearing and criminal proceeding rights, but concluded the limitations were justified because the law worked to preserve public health and safety.

"Disrupting the illegal market is essential to addressing the public health harms arising from the widespread availability of illicit nicotine products and cheap illicit tobacco," Mr Nicholls' statement said.

Ms Rooney said it was better to get the laws right and demonstrate the human rights considerations were balanced than rush a scheme and risk a legal challenge.

"I think investment in the enforcement teams is critical and the strong penalties for retailers. Also, the strong penalties for landlords, I think is really important," she said.

Opposition Leader Mark Parton said he thought the ACT's human rights rules might have made it a little too complex to introduce laws targeting crime.

Mr Parton pointed to the ACT government's resistance to anti-consorting laws targeting outlaw motorcycle gangs on the grounds it would not be human rights compliant and was also critical of the handling of rapid closure powers targeting shops selling illegal tobacco.

"Like, honestly, the human rights of people who are selling illegal products, in many instances with the money going back to organised crime? Give me a break," he told ABC radio on Thursday.

The Australian Council on Smoking and Health on Wednesday ranked the ACT second last of Australia's states and territories, saying improvements since its last assessment were mostly due to joint operations with NSW.

"A broad package of legislative and enforcement reforms could deliver significant gains in future rounds, starting with rapid closure powers and penalties for landlords," the council said.

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