Michael McDowell (Independent) | Oireachtas source

I listened carefully to what Senator Boyhan said. In order that the Minister will be ready for the Committee Stage amendments, I draw to his attention the following provision in section 28 of the 2023 Act, as inserted by section 5: "A person shall not sell by retail, or cause to be sold by retail, a nicotine inhaling product to a child." The same provision applies to cigarettes and other tobacco products by way of section 28A, to be inserted by section 6. Section 5(3) further provides:

(3) In proceedings against a person for an offence under subsection (2), it shall be a defence for such person to prove that the child to whom the

alleged offence relates produced to him or her— (a) an age card,

(b) a passport, or

(c) a driving licence, for the time being in force, relating to that child.”.

Subsection (3) of section 6 makes the same provision in respect of tobacco products except that the reference in not to a "child" but to "a person under the age of 21 years". Will the Minister read over that provision and concentrate on what it is supposed to mean? If a person under the age of 21 produces an age card, driving licence or passport showing he or she is under 21, it is a defence to the charge of supplying those products to a person of that age. That is what is set out in the Bill. I ask the Minister to look at it again.

I am clear on this. I looked at it in a different context. It is nonsensical to say it is an offence to supply a tobacco or nicotine-inhaling product to somebody under 21, under subsections (1) and (2) of sections 5 and 6, and then provide, in subsection (3) in both instances, that in proceedings for an offence under subsection (2), it shall be a defence for the accused person to prove that the child to whom the alleged offence relates produced an age card, passport or driving licence "for the time being in force, relating to that child". The reference in section 6(3) is "for the time being in force, relating to that person under the age of 21 years". What does that mean? I do not understand how it can be worked. If somebody comes in with a driving licence saying he or she is 20, is that a defence to a charge of providing a tobacco product to a person under the age of 21? I just do not understand why the draftsman has done this. It does not make sense.

There are other issues. There are people with established smoking habits and people with nicotine-inhaling product habits coming up to the date on which it becomes illegal for them to purchase those products. There will be people, for instance, who have been smoking for two years on the date in 2028 in which the provisions come into force. Is it seriously suggested that they will have to get a pal to buy cigarettes for them in order to continue their smoking habit? This has not been thought through. What this is, in fact, is a retreat from the New Zealand proposal, which was to have a rolling increase in the age limit for purchasing cigarettes and nicotine-inhaling products. I am with the Minister on the inhaling products in general terms.

However, the main question is whether it is a defence that proof was given that a person was under the age of 21. Section 28A(3), as inserted by section 6, provides:

(3) In proceedings against a person for an offence under subsection (2), it shall be a defence for such person to prove that the person under the

age of 21 years to whom the alleged offence relates produced to him or her— (a) an age card,

(b) a passport, or

(c) a driving licence, for the time being in force, relating to that person under the age of 21 years.”.

What does that mean? The draftsman has got this wrong. The Minister may have had good advice from the Attorney General about what could or could not be done but the drafting section of the Attorney General's office has made a bags of this. I ask the Minister to reconsider whether he really wants to put into law something as nonsensical as this. He has the great comfort blanket that none of this means anything for another three-and-a-bit years. He will be able to bring in another Bill to make sense out of the nonsense that is in this Bill. It is nonsense, and no amount of advice from the Attorney General can turn it around. Is it a defence that somebody aged 19 or 20 produced a licence or passport showing he or she was that age? If it is a defence, subsection (3) is a complete nonsense. Let us deal with that.