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ATHRA to challenge Northern Territory ban on vaping nicotine

Posted on December 1, 2019


All vapers using nicotine in the Northern Territory (even with a prescription) are committing a criminal offence with penalties up to $15,400 or 12 months in prison, according to the NT Minister of Health Natasha Fyles. ATHRA is seeking your support to get legal advice on this ruling which effectively bans all vaping.

Under federal law - the TGA Personal Importation Scheme -it is legal to import and use nicotine to quit smoking or to prevent relapse if you have a prescription from a doctor. Nicotine is then classified as a legal Schedule 4 'therapeutic' product (ie used for quitting or preventing relapse). Without a prescription, it is a Schedule 7 “dangerous poison” and use is forbidden.

ATHRA has been corresponding with the Minister since March 2019 and has consistently been advised that this exemption does not apply in the Territory:

"persons must not use a Schedule 7 Poison unless the use is authorised under specified circumstances. A prescription for nicotine issued by a registered medical practitioner does not satisfy a specified circumstance. As a result, nicotine juice would not be permitted to be used by persons located in the Northern Territory"

This is surprising because:

  • Under Section 109 of the Constitution, federal law overrides state or territory law where there is an inconsistency
  • Nicotine is a Schedule 4 therapeutic product in the NT and is legal with a prescription. The NT parliament can change this classification but has not done so
  • There appears to be no Territory legislation which overrides the national laws

The Minister recently confirmed this ruling in Parliament here:

"It has never been legal in the Territory to possess or use nicotine for human consumption. The Solicitor for the Northern Territory advises that a medical script issued by a medical practitioner does not constitute an override of Schedule 7 classification"

Deja vu: the case of Queensland

This case is identical to a similar ruling made by Queensland Health last year. Queensland Health misled the public for several years by insisting that state laws override federal legislation, making it illegal under any circumstances to import or possess nicotine.

After repeated challenges by ATHRA, Queensland Health admitted that importation of nicotine to stop smoking is legal with a medical prescription, under the TGA Personal Importation Scheme.

However in the Territory, the government is refusing to budge.

We need your support

Legal matters are complex. Informal legal advice suggests that the Territory Government is wrong. Careful legal advice is now necessary to see if this ruling is valid and if it should be challenged.

Government overreach is becoming a widespread concern and needs to be challenged when it occurs. Vapers who are charged with using or possessing nicotine will have no protection under the current legal interpretation.

Please make a donation to the ATHRA legal fund to allow us fight for the right of Territory vapers to choose a safer alternative to smoking. Donations can be made here and are tax-deductible. Donations of any size are welcome.

Donations from all states are welcome. Your state could be next!

Other Northern Territory blogs

November 2018. Northern Territory misses an opportunity to reduce smoking rates

September 2018. Proposed Northern Territory legislation on vaping misguided

February 2019. Terry Mills MP passionately opposes NT vaping legislation

Posted by Colin Mendelsohn, colin@athra.org.au


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