Tasmania is considering legislation to create a “tobacco-free generation” by banning sales to persons born after July 1, 2000. It is a tobacco prohibition law, albeit one whose endgame will play out for future generations only. That is concerning, as it’s unlikely to achieve its aims, but also because it undermines civil rights and representative government.

The “tobacco-free generation” proposal reflects an increasingly interventionist approach by state governments and public health organisations in the name of public health. The frustration of those on the tobacco front line is understandable; the drug represents a significant social danger.

But so do obesity, dangerous driving, family violence, depression and suicide. Our legal response to these social risks must be evidence-based and considerate of constitutional limits and civil rights.

Prohibition doesn’t work

Laws that rely on prohibition to reduce the prevalence and harm from drugs generally fail to achieve their aims. That was true of historic alcohol prohibition laws. It remains true of the continued legal prohibition on narcotics.

Prohibition is rarely successful for many reasons. An important one is that regulatory compliance is best achieved with co-operation rather than coercion. Effective regulation encourages the “buy-in” of those regulated and facilitates self-regulating conduct, even when the state isn’t looking over their shoulder.

However, if people view a law as unjust or unfair they will be much less likely to comply with it. “Buy-in” is vital to drug regulation, which obliges people to stop using otherwise enjoyable things. It is also relevant to the Tasmanian bill, under which the lawmakers’ generation will always be able to smoke, but those who come later (who, notably, cannot yet vote) will never be able to.

Targeting laws at people who cannot hold lawmakers to account at the polls is undemocratic. It is also unfair to have one generation telling the other to “do as I say, not as I do”.

This unfairness will undermine regulatory “buy-in”, particularly in a society where new generations already feel disadvantaged by their predecessors. As Richard Cooke wrote of the NSW lockout laws:

They have been locked out of the housing market, locked out of affordable education, locked out of the welfare system and secure employment. They have seen their political power and their real wealth shrivel. And now the one area where their expectations had not been curtailed – recreation – is being destroyed as well.

Lawmaking must be evidenced-based

Like “zero tolerance” laws that promise (and usually fail) to reduce crime, drug prohibition laws focus on rules rather than outcomes, and belie the complexity of the underlying social issue.

The reality is that successfully modifying entrenched social behaviour requires a range of regulatory approaches, applied consistently and incrementally across generations. That is certainly the case for tobacco: educative, policy and economic measures tend to have a more sustained impact than legal measures alone.

Tobacco risk-reduction measures are working, albeit slower than many would like – but that is the nature of facilitated, rather than forced, generational change. Intergenerational risk reduction requires the patience and trust in future generations to make the right decisions for themselves.

Unjustified discrimination

Beyond the regulatory issues, the proposed law is discriminatory. The nominal date of July 1, 2000, adopted by the Tasmanian bill is unjustified, and will only become more so as time goes on.

There is no rational reason why, at January 1, 2030, a 30-year-old person can buy cigarettes, but a 29-year-old person (perhaps born only an hour earlier) cannot. Both are otherwise competent adults, but only one is legally allowed to buy tobacco. The legal distinction has no public health basis and is solely concerned with their age.

Commonwealth, state and international law prohibits age discrimination, but state parliaments can technically extinguish these rights if they choose.

There would be some irony if baby-boomer lawmakers – who come from the generation most reliant on age-discrimination laws – choose to deprive the next generation of such rights protections.

The very laudable public health ends the proposed Tasmanian legislation seeks to achieve do not justify the means it adopts. Citizens should not, once they have passed the age of consent, be treated unequally to their peers. We should not be segregating our society based only on the fortune or misfortune of the day they were born.

Strengthening existing measures, or even banning tobacco sales outright, may be politically risky. But it is a legitimate way to make laws in our system. Passing discriminatory laws that target only the part of the population that can’t vote is not.

If there is to be a tobacco “endgame” then the decision should be left to the generation standing on the field, not the one that came before.