House debates

Wednesday, 24 August 2011

Bills

Tobacco Plain Packaging Bill 2011, Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011; Second Reading

3:55 pm

Photo of Steve GeorganasSteve Georganas (Hindmarsh, Australian Labor Party) Share this | | Hansard source

I will pick up where I left off on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 just before the 90-second statements. I was talking about the Selection Committee and its referral of the Tobacco Plain Packaging Bill to the House of Representatives Standing Committee on Health and Ageing. Those on the other side have been very critical of the process and the way that we looked into this particular bill. But the fact is that whoever on the Selection Committee referred this particular bill would have been a member of the opposition, because I know that on this side of the House we are all in agreement that the bill will have positive effects out in the community. So, when those opposite complain that the inquiry did not look into the Trade Practices Act, the economic side of things and the retail side of things, I can only say that they should have thought through a bit more which committee to refer this bill to, instead of just referring it off, to play politics, to one of the committees and then complaining that the inquiry was not extensive enough because it did not look into the economic side or the constitutional and legal side of the bill. Again I say: it is the Standing Committee on Health and Ageing; it was our duty to look at the impacts on health and ageing, and no more.

As I said, I tabled the report in the House of Representatives this week. I am pleased that the report shows that all members of the committee, which was comprised of members of both the government and the opposition, affirmed the harmful effects of tobacco and smoking, and we affirmed the positive effects of decreasing the incidence of smoking in our communities via this bill. When I tabled the report, I made a brief statement that was fit for that particular occasion. What I did not say was that the committee was presented with evidence from people on the health side of the conflict and from people on the tobacco side. It is a conflict, and I am sure we are all aware of it. The argument put forward by health experts and advocates in support of the measure is not really any different from what I and others already said in this place when we were all speaking on the member for Kingston's private motion on this subject, and it is no different from what I have said in this place every year on World No Tobacco Day—that smoking is harmful and we must all do whatever we can to eradicate it. The arguments put forward against the measure by the tobacco lobby and tobacco companies were exactly what any reasonable person would anticipate.

In short, there is ample evidence from empirical studies that prove that the packaging of tobacco products itself affects— (Quorum formed)

The loss of that branding and advertising, and all the psychological responses that are prompted by it, has been proven to decrease people's propensity to smoke and to increase the effectiveness of health warnings displayed on the packaging. There are dozens upon dozens of studies that prove this. Packaging is the last bastion of advertising left to the tobacco companies; the quicker we get rid of it the better. As one might have expected, submissions and evidence received were overwhelmingly in support of the veracity of the studies that have been done on the hypothesis on which this bill is based—that is, the anticipated positive effects of plain packaging.

The tobacco lobby, the tobacco companies and a number of retailers and consumers oppose the measure on the following grounds: that there is insufficient evidence that the health benefits will be achieved, that there will be negative commercial effects and that there are legal issues associated with intellectual property. Those excuses have been exactly the same for every single measure that we have taken in the last 30 to 40 years on tobacco advertising in this country—whether on cigarette ads on TV, tobacco companies sponsoring sporting events, or tobacco advertising in magazines, newspapers or cinemas. We have heard all these excuses before. But we do know one thing—when we look at the history of the excuses given by tobacco companies and then look at the excuses given today—we know that the numbers are down and that every single measure that we and governments of all persuasions took had an effect on the number of people who smoke. To hear once again the excuses that have been used over the last 40 to 50 years by the tobacco companies brings back memories of when we banned tobacco advertising on TV, in newspapers and magazines, at the cinemas et cetera. I have already referred to some of the evidence earlier and before in other speeches.

On the second point, I am yet to hear even the Leader of the Opposition oppose this measure for fear of undermining confidence in the future prosperity of the tobacco industry. I am yet to hear anyone from the Liberal Party or the National Party speak up in defence of consumer confidence and the availability of cancer sticks. We have not had the opposition spreading fear and inciting panic, warning that 1,000 tobacco jobs will be lost, or that the industry will need compensation, a bailout or some other form of government subsidy. With the propensity of the opposition to spread dire warnings of the sky falling upon the— (Quorum formed)

As I said, the arguments of the tobacco companies have not been entirely logical or consistent in this debate. In the past, we have heard contradictory arguments such as the one that the government's measure will force the price of tobacco products up at the same time as counterfeit products swamp the market, forcing prices down. The tobacco industry now state that the measure will be effective and that smoking rates will be decreased while in the same breath they argue that they are going to lose business as a result of the change. Which one of the two is it—an ineffective change, hence no changes to profit, or an effective change, resulting in a decrease in sales? It cannot be both. I wonder why the tobacco lobby would argue to the government that these bills will have negative effects on the tobacco industry. Why would they argue that they are going to sell less cigarettes? They would argue that because the bill will work. If they are opposed to the plan, why would they add weight to the government's rationale for introducing it?

I support this bill and commend it to the House. I hope it cuts down on smoking not by 15 percent or by 20 percent but by 100 percent. (Time expired)

Mr Adams interjecting

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

The honourable Member for Lyons—please.

Mr Adams having left the chamber—

Photo of Dick AdamsDick Adams (Lyons, Australian Labor Party) Share this | | Hansard source

That's where he made his money.

Photo of Peter DuttonPeter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | | Hansard source

Mr Speaker, I rise on a point of order. The member made an offensive statement. It is not unusual for members on the opposite side to make offensive statements against former police officers—they have done it before. I ask that you ask the member to come back into the chamber and withdraw what was a deeply offensive statement. I think he should make the statement outside of these four walls, and I will take appropriate action.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

I will reflect on the point made by the honourable member for Dickson.

4:09 pm

Photo of Bruce ScottBruce Scott (Maranoa, National Party) Share this | | Hansard source

I rise today to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. The coalition will move one amendment to the Tobacco Plain Packaging Bill during the consideration in detail stage. It is an important amendment because it reflects a lot of the thinking on this side of the House on elements of that bill. We will be opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill.

The government claims that the Tobacco Plain Packaging Bill will discourage the use of tobacco products, so aiding the government's bid to reduce smoking rates in Australia. This bill will not be a silver bullet in reducing smoking rates, and no single measure will work on its own. Instead, a comprehensive anti-tobacco strategy to control smoking must be put in place. I acknowledge that over many years a great deal has been done, but more needs to be done.

There is no doubt that increasing the size of graphic health warnings will help to reduce—and, I believe, has helped to reduce—the rate of smoking. When I see those graphic images on packets of cigarettes—I do not smoke, but I see them—I think, 'My goodness! How could anyone buy this product?' But there is no doubt that decreasing the size and locations of branding will have an impact. The coalition maintains that increasing the size of the graphic health warnings on the front of cigarette packets would be the most effective measure that any government could take. The impact of plain packaging will be quite marginal, and I believe that increasing the size of those graphic images needs to be done as well as some advertising. Putting those images on television, particularly when sporting events are on, is the best way to get the anti-smoking message out there.

It has been suggested by some that the measures proposed by the government will help reduce the incidence of new people taking up smoking and help those people who are thinking about quitting do so for good. If the Tobacco Plain Packaging Bill is passed—whether in an amended form or in its present form—I look forward to seeing whether there is a measurable reduction in smoking. The government seems to be relying on the one tool that it seems to have in its toolbox in its attempts to reduce the rates of smoking in the community.

The coalition have a proven track record in the field of tobacco control, and we have significantly reduced the rates of smoking in Australia. Former Prime Minister Sir Robert Menzies first introduced a voluntary tobacco advertising code for television in 1966. In 1976, the Fraser coalition government first implemented a ban on the advertising of tobacco products on TV and radio. The Howard government, with Tony Abbott—now the Leader of the Opposition—as health minister, introduced the graphic health warnings on tobacco products in 2006. In 2009 the coalition first proposed increasing the tobacco excise, a measure which was later adopted by this Labor government. To say that the coalition is soft on tobacco companies is just plain wrong; the coalition has always supported and will continue to support sensible measures to reduce smoking rates, especially amongst our Indigenous population and amongst young people, particularly whilst they are in those formative years when they can be influenced by all sorts of images of people who smoke. We are absolutely committed to measures that reach not only the broad population but also young people and Indigenous Australians.

I had the great privilege of being the Minister for Veterans' Affairs for almost six years, and in 2000 I introduced laws under the Veterans' Entitlements Act which meant that, if someone in the Defence Force commenced smoking after the year 2000, they would no longer be able to claim at some time in the future that smoking had a detrimental effect on their health. We believed at the time, as well as for many years leading up to that time, that there was sufficient evidence, advertising and knowledge for people to be aware that smoking is injurious to their health and can lead to many cancers and other ailments. However, the reason that under the Veterans Entitlements' Act smoking was considered a causal link to many cancers prior to that change—although it was only prospective, not retrospective—was that the Army, Navy and Air Force used to put cigarettes in ration packs. So the government, by virtue of that fact, had a duty of care and a duty of responsibility to accept that they had put cigarettes in the ration packs and that, if someone started to smoke and subsequently, even many years on, developed cancer or other health ailment that could be linked to smoking because they became a chain-smoker or even just smoked, they should be entitled to benefits under the Veterans Entitlements' Act—and it was right that they should be compensated. Anyone in the defence forces who commenced to smoke after 2000 was not eligible for the entitlements that then existed and that remain for those who were in the Defence Force prior to that and smoked as a result of the service and were able to make a causal link to their health.

The coalition presided over the biggest decline in smoking rates whilst in government. It was under the coalition government that the prevalence of smoking declined from 21.8 per cent of Australians over the age of 14 in 1998 to 16.6 per cent by 2007. So, between 1998 and 2007, there was a decline for Australians over the age of 14 from 21.8 per cent to 16.6 per cent. This is one of the lowest rates of smoking in the world. The decline in smoking rates between 1989 and 2007, a fall of 40 per cent for men and 44 per cent for women, was amongst the biggest in the OECD. This is testament to the long and hard work that has been done—by other governments, I acknowledge, but also by the Howard government—dating right back to the Fraser government's initiatives. That fall in smoking for women was the biggest in the world. Even though these falls are significant and we have one of the lowest rates of smoking in the world, we cannot afford to be complacent.

My electorate offices in Roma and Dalby received over 700 items of correspondence—postcards, letters, emails and more—from people across the electorate. They were voicing their opposition to this government's proposed changes. I want to describe why they were concerned. I have a responsibility to be the voice of the people of Maranoa. Even if I might not always agree with what they are protesting about, I have a responsibility to bring it to the attention of the government and the parliament. One of their main concerns was that they may not be able to determine the strength of cigarettes. I think that is a very legitimate concern. My office was contacted by a lady who was concerned that her husband may become even more addicted if he accidentally purchased and smoked stronger cigarettes—a legitimate concern. Many others have told me that they are adults and have the right to make up their own minds when it comes to smoking. They believe the Labor government is now interfering with their choice and their lifestyle. They were the sorts of comments we had from the constituency of Maranoa.

Among the hundreds of people to contact my office were many local businesses, not only employers but also some employees. They represent businesses from around the Maranoa electorate, in smaller communities like Inglewood, Kumbia—outside Kingaroy, as you would know, Mr Deputy Speaker Slipper—and Nanango, through larger centres such as Roma, Warwick, Dalby and Kingaroy. These small businesses may be located in different areas of the electorate of Maranoa, but their concerns are the same. They are not happy with the government's lack of consultation, which we have come to expect, with small businesses and retailers over this issue. Small retailers are concerned at the way this proposal will impact, for instance, on their stock management, and there may be difficulties in differentiating between different packets that will look almost identical. They believe the new reforms will hurt their businesses through increased price based competition, which will drive customers to large retail chains and, potentially, the illegal black market for tobacco products.

Another concern raised by the people of the Maranoa electorate was the potential for an increase in counterfeit tobacco when plain packaging is introduced. The Australian Customs and Border Protection Service annual report shows that, over the last three years, it has seized some 743 tonnes of tobacco and 217 million cigarettes. Most recently, at the end of July, an estimated 20 tonnes of tobacco was seized after a series of raids on greenhouses in Sydney's west. Unfortunately, the government appears to have completely ignored the counterfeit tobacco issue and has made no effort to address it through this legislation. The World Health Organisation recommends implementing a track-and-trace regime for tobacco products and strengthening the legislation against the illicit trade in tobacco products. However, the government has instead let the tobacco companies manage their own tracking of tobacco products. I think the WHO's recommendations are sensible and should be looked at.

In order to address the concerns raised by small businesses during consultation with industry, the coalition will be moving an amendment to the Tobacco Plain Packaging Bill 2011. This amendment seeks to address the concerns of small businesses, which have fallen on the deaf ears of this government. Our amendment seeks to allow the use of a tobacco company's trademark on one of the two smallest outer surfaces of the cigarette carton. We hope this will aid in the stock management concerns of retailers, which I have outlined and expressed on behalf of my constituency, without undermining the public intent and the good intent of the plain packaging proposal. The coalition has also decided to oppose the Trade Marks Amendment (Tobacco Plain Packaging Bill) 2011. We first saw this bill when it was introduced into the House on 6 July this year. It was not flagged or issued as part of the government's exposure draft or consultation paper of April this year. This bill will give extensive powers to the minister—regulations made by the minister under an act of parliament could override the act itself. We do not believe this bill is necessary for the government to continue to implement their plain-packaging agenda.

This bill is about improving the health of the nation—I accept that. I accept that smoking, like drinking, is legal in our society, despite its often damaging health effects. Nicotine is one of the most addictive drugs. The majority of Australians who smoke become addicted to nicotine at a young age, many in their teens, and most wish that they could quit, but struggle with their addiction. Sadly, smoking remains by far the major cause of preventable cancer and cardiovascular disease deaths in Australia.

As a representative of the electorate of Maranoa, I want to do everything in my power to reduce the prevalence of smoking in Australia. Tobacco products should be just one part of a number of measures aimed at reducing smoking rates. Most importantly, we must ensure that the message is getting through to those young people who are just contemplating smoking. We have a good record of reducing smoking rates in our country and I hope that we can continue to reduce those rates. I hope the government has listened, as part of my contribution, to the concerns of many in my electorate from small businesses, particularly in those smaller communities, and some of those people who feel that there was not enough consultation with small business people. But I guess that is one of the things we have come to expect from this government—a lack of consultation on so many issues, including the carbon tax issue.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

Before calling the next speaker, I recognise the honourable member for Lyons.

4:24 pm

Photo of Dick AdamsDick Adams (Lyons, Australian Labor Party) Share this | | Hansard source

I understand the member for Dickson objected to a comment I made across the chamber and I wish to withdraw.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

I thank the honourable member for Lyons for assisting the House. I would also just gently mention to the member for Dickson that in response he maybe ought not to make a generalised criticism of members opposite in retaliation.

4:25 pm

Photo of Darren ChesterDarren Chester (Gippsland, National Party, Shadow Parliamentary Secretary for Roads and Regional Transport) Share this | | Hansard source

I rise to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging Bill) 2011. In doing so, I would like to commend the member for Maranoa for his contribution, which we have just heard, because I think he raised some very important points along similar lines that I intend to take with my contribution to the House this afternoon.

There has been a lot of discussion in this debate that I think has been very positive in nature, in the sense that members on both sides have committed themselves to the desire to reduce the incidence of cigarette smoking in our community. The negative health impacts that tobacco products can have are well understood, and there have been some excellent contributions by members who are keen to ensure that the rate of smoking amongst young people and amongst our Indigenous community is targeted more heavily in the future. But I fear that a lot of this debate in terms of the legislation being put forward by the government and, in particular, the minister's approach to prosecuting her case in the public domain have been more about political stunts and lecturing the opposition than about actually achieving an outcome which is desirable for the Australian community.

I believe that there is genuine goodwill from members on both sides regarding reducing the smoking rates in our nation. I look back on the coalition's record, in particular, in its efforts on tobacco control. The coalition does have a proven track record of reducing the rates of smoking in Australia, and that record dates back more than 40 years. The Minister for Health and Ageing has often criticised the current Leader of the Opposition and former health minister, Tony Abbott, but it was Mr Abbott, in his role as health minister, who introduced the graphic health warnings on tobacco products in 2006. In fact, the coalition presided over the biggest decline in smoking rates whilst in government. Under the coalition government, the prevalence of smoking among Australians over the age of 14 declined from 21.8 per cent in 1998 to 16.6 per cent in 2007.

I make those points from the outset to underline my view that there is a commitment on both sides of this chamber to reducing the incidence of tobacco use in the community. Having said that, I do not think there is a silver bullet now. I think the easy gains, if you like, have been gained. We have been very successful in driving down the smoking rates in Australia over the past three or four decades, and I sincerely believe that it is going to be hard to drive them down much further. I am not convinced that the Tobacco Plain Packaging Bill will achieve very much at all. I fear that this is more about political posturing than about achieving an outcome in reducing the rates of tobacco use in the community. I fear it will not work, but hopefully history will prove me wrong and the figures will be reduced in the years ahead.

I am also concerned that, in going down this path, the government has exposed Australian taxpayers to potentially expensive legal action. This issue has been raised by other members in terms of the intellectual property of the big tobacco companies and the value they place on their brands. We have exposed ourselves to legal action, and I am not given much comfort from the reassurances from this government, given this government's long history of mishaps, to say the least. This is a government that could not put insulation batts in people's ceilings without burning down homes, tragically costing the lives of young Australians. This is a government that could not get value for money when it came to building school halls. So I am not filled with great confidence when I am reassured by those opposite that they have got legal advice that everything will be okay in relation to this issue.

Some of the other concerns that I want to raise, which were also touched on by the member for Maranoa and others on this side of the House, relate to very legitimate issues that have been raised by the small business sector. Small business people have taken the time to contact me, as I am sure they have many other members of parliament, and some of the issues they have raised deserve more consideration by the government, particularly in relation to the lack of consultation, some productivity issues and even some safety issues that they have presented to me. When I say safety issues, a couple of things have been pointed out to me. When you are running a small business and you have to turn your back on the customer to go to obtain a packet of cigarettes from behind a screen door, you are exposing yourself and your staff members to an added safety risk, either of assault or robbery. That is a legitimate concern that has been put forward by the small business sector. I go back to the point that the tobacco products are already behind a screen. The whole concept of plain packaging is to avoid that marketing opportunity. But, in states like Victoria, the tobacco products are already behind a screen. So I am not sure exactly what the government thinks it will achieve by putting the tobacco products in a plain package behind a screen. I raise that point because I think the small business sector has a great deal of concern about the identification of the tobacco products. When they open that screen they will see a wall of green or beige or olive or whatever the colour is that the government finally decides on for these tobacco products, and it will be difficult for the staff to identify the particular brand of cigarettes that they are going to obtain. This is a very practical problem and I am disappointed that the government has not engaged with the small business sector and tried to come up with a solution.

I add that as a practical problem because we heard yesterday in the House the Minister for School Education, Early Childhood and Youth, the member for Kingsford Smith, Mr Garrett, talk about issues of literacy. The minister said in his speech that we know that around 40 per cent of working Australians, that is, some 4.5 million working Australians, do not have adequate literacy skills for employment. I am pleased the minister is here today. I am not trying to have a go at him at all but there is a real practical concern here with people with poor literacy skills. Minister, I think you made a good point, but these people with poor literacy skills will be opening these screen doors and they will have trouble reading the brands. They will have trouble reading the names on these cigarette products. The government really should engage a bit more with the small business sector to at least allow them, when they open the screen door, to have some level of branding so that people with poor literacy have some hope of identifying the product that has been ordered. These are very practical implications of this bill which the government has not thought through.

One member on this side suggested that perhaps there would be an opportunity to put a small brand as an illustration on the base of the packet of cigarettes to enable easy identification for staff members. In which case, if it is on the base of a cigarette packet it is hard to believe it will provide any great marketing opportunity for the companies when that packet is always going to be upside down in someone's shirt pocket. It will hardly be an opportunity for them to promote their brand. That is a very practical implication of this bill which the government has not thought through. I think lack of consultation with the small business sector has been part of the problem.

The concern has been raised with me as to whether this creates more opportunities for organised crime in terms of the capacity to easily counterfeit the tobacco products. I have no information to back up that suggestion either way other than to say that the allegation is out there in the community that it would be easier to develop a counterfeit cigarette when there is no branding allowed on it. You run the risk of more tobacco products coming into the country and the government will miss out on its excise, which clearly this government is addicted to more than most cigarette smokers are addicted to nicotine. I raise these points in good faith because I do not think the government has thought through many of the aspects of the plain packaging legislation.

I wonder whether the government in its rush to present this bill to the House really thought about the simple fact that there are no reports or research material which actually backs up the position it is taking. I remember one of the ministers tabling, in one day, 11 reports, I think it was. I thought, 'Here we go; this is going to be the substance behind this whole debate.' So I got all those 11 reports and I read through them. There was some interesting material amongst them but it was inconclusive at best, and there are many unanswered questions about whether this legislation will actually work. I would have thought that a health minister and a government that are serious about tackling a problem like this would have evidence based material to put before the House to justify the position they are taking. It is hard to know with this government where the nanny state starts and where the government begins. And that is a concern expressed right across the community in relation to this government.

Another concern that I would like to raise in the time I have left is this: what is next? What is next from this government in relation to this plain packaging approach? We already have members opposite murmuring about products which are high in fat. Are we going to end up with plain packaging for all fast food outlets? We have a lot of pressure developing in the community at the moment in relation to alcohol products. Is that going to be the next target of the nanny state? I am concerned that we have a product which is legal, and the brand value and the property rights of the companies involved are being eroded by a government without any compensation. My concern is not so much for the big tobacco companies because, quite frankly, I think they can look after themselves. I have no great love whatsoever for the product or the industry. But I am concerned about what is next. Are we going to head down the path of eroding the rights of legal companies? What will this government take on next? Will it be the fast food industry or the alcohol industry?

For the sake of the debate, I also wonder whether this is the best use of the government's resources in terms of tackling this issue of tobacco consumption. There is no discussion of issues which I think have the potential to reduce the take-up of smoking even more—issues related to product placement in films. I wonder why the government has not been prepared to look down that path. Would the government even consider making it a condition of the receipt of Screen Australia funding in the future that there be no tobacco placement whatsoever—prohibit the product placement of tobacco products in films which receive Australian funding? That would be an equally contentious move; I acknowledge that. But I wonder why the government has not been prepared to look at measures which I think will de-glamorise smoking and take on the big tobacco companies in a way that I believe would be more effective.

In conclusion, I note that this is an unproven measure. There is great concern within the small business sector about whether it will be easy for them to implement. The practicalities of it in the workplace will make it difficult for small business owners in particular and their staff. It will be difficult for people who have trouble with literacy, and I do not think the government has considered that. I have the overarching concern that I am not convinced that this government actually has its legal advice in place. I fear it is exposing the Australian taxpayers to a costly legal action for very little gain.

4:37 pm

Photo of Andrew LamingAndrew Laming (Bowman, Liberal Party, Shadow Parliamentary Secretary for Regional Health Services and Indigenous Health) Share this | | Hansard source

In my brief contribution on the Tobacco Plain Packaging Bill and Trade Marks Amendment (Tobacco Plain Packing) Bill I will be expressing my support for plain packaging of tobacco, making a few observations from the health perspective and also acknowledging the good work done by my colleague Andrew Southcott in his attempts to pull together general agreement in this area. It raises elements of free trade, the extinguishment of IP for firms, the absolute pre-eminent objective of any government to reduce tobacco consumption and complex issues around trademarks and the illegal importation of tobacco that can be a result of overregulation in that industry. All of those issues taken together, the one concern of any Australian government, whichever side of this chamber, should be to reduce tobacco consumption and smoking rates. Australia has the best record in the world for achieving that. There are probably only three or four countries I can think of—Singapore, Sweden and possibly one or two others—that have lower rates, although in the United States there is a handful of states that have a lower prevalence of daily tobacco consumption than Australia.

We do it pretty well, and that history goes right back to voluntary codes of conduct under the Menzies administration and efforts by the Fraser government and by Labor administrations since then. But one thing that is certain is that the great drops that were acknowledged internationally occurred under the Howard government in a series of sequential ratcheting down of tobacco consumption in Australia, including what at the time was the largest campaign in Australian history funding public awareness of the dangers of tobacco.

What is interesting about this debate is that every time we approach a new forefront in tobacco control everything that went before appears anachronistic. I suspect that other nations will follow us on plain packaging if it proves not to extinguish IP or to lead to significant challenges in the High Court. So my key point is that the one amendment that we are making to this legislation, which is the ability to leave a small identifier not on the packet but on the package or the carton of cigarettes, be they a four, a six or a 10, for easy stock tracking and identification so that those working in small business can identify them quite easily without relying on a simple font of small point is a very good thing. I would put my support behind that amendment. Once the packet is opened, all that branding is removed; it is almost unheard of to buy cigarettes in packets at retail level in Australia because there is no volume discount, unlike overseas where we sometimes do see these larger packets coming into the country.

There is always the possibility that plain packaging will make it a little easier for illicit tobacco. We know that 743 million tonnes have been seized by Customs in the last three years along with 200 million cigarettes. That is just an aside. We will deal with that problem when it comes along. The best problem you can have is fewer people smoking and more illicit stuff—let us have that battle with the illicit stuff when the time comes. Today is about what a government does to make tobacco as unattractive as possible. I can see that, fundamentally, every individual has a right to purchase what they want—that has not been impeded—but certainly the great power of marketing through the brand will be nullified with this legislation and it is worth a go.

I will not stand here as probably the only health researcher in this chamber and say, 'We won't do this until we see the evidence.' I think with tobacco the bar is fundamentally different. With tobacco there is no safe level of consumption. We know tobacco is highly addictive and has become socially acceptable by virtue of centuries during which we could never link cause and effect. Were we able to do that, were the implications of tobacco realised an hour or a day after you smoked, tobacco would not exist in society. It is the latency in the temporal element between exposure and disease that leads tobacco to have this almost complete penetration through certain seams of society, with levels of smoking between 15 and 25 per cent.

Due to my interest in Indigenous health I am concerned about Indigenous levels of smoking. What we know is that right across urban, regional and remote Indigenous Australia smoking is still prevalent in excess of 50 per cent. What disappointed me earlier this month was the Minister for Indigenous Health trumpeting a fall in smoking levels. You only had to read the report from which this minister was quoting to see that the report itself said there was no significant change. To be clutching at one and two per cent changes and highlight them as successes is disappointing because it is a minister taking leave of the evidence in his own report. It is misleading to take a report and assign conclusions to it that simply are not supported by the very text. We need a minister who reads the report. We needs a minister who says, 'Crosscheck that and show me exactly where that claim comes from.'

What we are seeing is a pattern of behaviour to whitewash over the data, send it through Commonwealth departments and then allow these tiny little sound bites that somehow encourage the Australian people to believe we are making progress in Indigenous health. I desperately want to see the progress, but I want to see the evidence, and if there is no evidence for it I do not want people to be misleading the Australian public. You simply cannot take data from three jurisdictions and then quote it as a national trend. That is misleading. It was done repeatedly by this minister. It is simply wrong to take cardiovascular disease and say, 'We are delighted that there is a 29 per cent decrease over the 10-year period of that study into Indigenous levels of cardiac disease mortality,' when mainstream levels fell 35 per cent and you do not mention it. The gap may well have opened over the last 10 years, but this minister cannot acknowledge the possibility. You only have to see there is a 29 per cent fall in Indigenous Australia and a 35 per cent fall in the mainstream to know that there is potentially a problem that needs funding and an address, but nothing is coming from this government. Look at Closing the gap that has been implemented with a highlighted, targeted area of smoking and find for me in all that fine print an attempt to measure smoking levels in Indigenous Australia. You will not find it. Try to find for me evidence that there are fewer cigarette sales in Indigenous communities. You will not find it. This is a government so determined to measure the irrelevant and hide from reality that I fear that, at the end of Closing the Gap, not only will it not have closed, not only will the gap not even be starting to close, but this government will feel they have to tell a completely different story about Closing the Gap. They have not got the evidence on the other side. And why? They are not collecting the data. They are not interested in whether Indigenous Australians are smoking less; they are not even counting. Instead, what they are measuring is the number of public health officials on the ground and the number of anti-smoking programs rolled out. They are fabulous inputs and absolutely necessary but are in no way sufficient to reduce smoking levels. So do not measure the stuff that does not matter. The critical element—the independent variable—is how many people are smoking. How much are they smoking? How many cigarettes are being sold? That is not even being counted. So how can they be serious about reducing smoking if in Indigenous Australia we have rates of over 50 per cent and, most concerning of all, Indigenous pregnant mums with the same smoking rates? Unlike most of the rest of the world, there is no difference between the pregnant mums and the rest of Indigenous Australia. So there is one area where we genuinely have to focus.

In many ways this legislation is difficult to argue against. I think it is worth giving it a go, and the reality is that there will be a slow and progressive ratcheting of pressure onto the tobacco industry. This is just, in the footnote of history, another small move in that general direction. And I genuinely hope it works. I hope it succeeds. I am prepared to give it a go. I can understand it might be a little harder for shopkeepers to identify stock sometimes, but I am prepared to wear that in the interest of making it as unattractive as possible to smoke. Everyone listening, both on the broadcast and here in the gallery, will say, 'If you hate smoking that much, when are you going to ban it?' But of course there is no discussion about that.

Marcia Langton makes the suggestion that, if we care so much about alcohol consumption and pregnant mums, why don't we put them on a banned list? Are we that serious about it or are we not? Here is a government that does not even have that debate. I am not saying to do it; I am saying let's consider some options. Emblematic of this legislation is that these guys over here are fiddling with the packaging. They have been preoccupied with the packaging for 12 months. Ever since they gave it up on alcopops it has been packaging—and doesn't that represent how far they have penetrated in this debate? Nowhere into cigarettes themselves; it is purely the packaging.

On my watch I can say that we supported the removal of branding from cigarette packaging, going from what is already 30 per cent down, effectively, to a very simple font with 14-point text. Let's see it work. Let's see if it is effective. I wonder about government entities deciding what the uncoolest colour is. There is actually someone who was paid to work this out. Someone was paid here to work out the most unattractive colour for a packet of cigarettes. And what did they come up with? They came up with olive green. I will tell you one thing: today's uncool is tomorrow's cool. Whoever worked that out did not realise that in the same month they decided on olive green Porsche released their latest 912 turbo. And what colour was it at the Melbourne show? What colour was it on the front of the magazine in the Australian? Olive green. So, before we get too smart about what colour we need to make a cigarette packet, let's focus on what is inside. Let's focus on whether we are serious about actually measuring what is happening both in the Australian public and, more importantly, in Indigenous Australia.

I finish where I started. Fifty-two or 53 per cent—sometimes it falls to 47 per cent prevalence—is a major killer in Indigenous Australia. I would like just one-tenth of the time spent quibbling over plain packaging and trying to line this side up as though they are for Big Tobacco just because they receive political donations—if you do not like it, ban it. There is no move over here to do that. If you do not like it, ban the sector. But there is no move to do that. They are quite happy to make a cheap political point. But while they have their hands on the reins of government this lot will be judged on what we have achieved in reducing smoking.

My great fear is that all we achieve out of this health minister is plain packaging. Once that is done it is like: 'Whew! We've done alcopops and that's out of the way. We've done some plain packaging around tobacco and that's out of the way. Now let's just roll a bit more money into programs—and don't measure anything too closely in case tobacco and smoking rates don't fall. The last thing we'd want the Australian people to know is that it made no difference. So, to be sure of that, let's not count anything.' This is the great problem. They do not mind going for the headline. They are an administration excellent at writing a press release. But then the rest of Australia scurries around saying, 'What are they trying to achieve here?' It was government by press release for three years under the former Prime Minister, and now I fear it is government by headline grabbing.

So you have bipartisan support. We will give it a go. We will see if it works. There should be no problem so long as IP is not extinguished. If it is extinguished, our only fear is not that tobacco companies are going to make a swag of money; our fear is that the Australian people have to pay for it. If there is a challenge in the High Court, isn't it the case that if the decision is awarded against the government it is the Australian people who pay for that? If there is possibly a way of not extinguishing IP but removing the branding from packets of cigarettes, this would have been wholeheartedly supported. While I am not a lawyer and cannot give an opinion, the fact is that under our amendment there will be a small amount of branding right on the end of the package that allows shopkeeper to find it. By that element alone IP is not extinguished. It is a very important point to make. We are trying to save this government from its own legislation and from a High Court challenge, but we cannot help them if they cannot help themselves.

We will support the plain packaging. We hope that it makes a difference. We implore the government to count and see if it does. Most importantly of all, we ask for way more focus on Indigenous smoking than there has been already, because up to now through the Closing the Gap objectives we have seen a whole host of counting inputs but precious little counting of outcomes.

4:51 pm

Photo of Mal WasherMal Washer (Moore, Liberal Party) Share this | | Hansard source

If I may have a preamble, I thank the member for Bowman for his useful comments. I would like to make a couple comments on the member for Bowman's statements. I thought they were well thought out. The first is that prohibition does not work. I say this separate to this debate, but with cannabis smoking in this country, which is experienced by a large proportion of people, prohibition definitely has not worked, and we need to look again at that issue. However, to come back to the subject of the packaging, which I greatly support and have been on the public record many times so doing, I certainly support this bill. I will detail briefly the reasons why I support this legislation.

Smoking is one of the leading causes of preventable disease and death. Smoking kills over 15,000 Australians each year. We have heard this before, but I will say it again. Smoking costs the Australian society and economy around $31½ billion per year. More than 3.3 million Australians aged 14 and over smoked in 2007. This is 16.6 per cent of the population, down from 30.5 per cent in 1998.

Under the COAG National Healthcare Agreement the government has committed to reducing the daily smoking rate among Australian adults aged 18 years or older from 19.1 per cent in 2007-08 to 10 per cent by 2018 and halving the daily smoking rate among Aboriginal and Torres Strait Islander adults aged 18 years or older from 47 per cent in 2007-08 to 23.8 per cent by 2018. I add to the member for Bowman's comments: this is one of the leading causes of premature death in Aboriginal folk.

Smoking is a leading cause of cancer, accounting for 20 to 30 per cent of all cancers. Both active and passive smoking increase the risk of lung cancer as well as other cancers, including stomach cancer, pancreatic cancer and leukaemia. Smoking is responsible for 84 per cent of lung cancer in men and 77 per cent in women. Longer duration and heavier smoking increase the chance of developing cancer. Stopping smoking can greatly reduce the risk of smoking-related cancers. Common symptoms of lung cancer include persistent cough, breathlessness, blood-streaked sputum, chest pain, recurrent bronchitis, pneumonia or chest infections, fatigue and unexplained weight loss. These can also be symptoms of other conditions. Anyone coughing up blood or displaying these other symptoms should consult their doctor. If coughing up a lot of blood, you should go to your nearest hospital emergency department.

The benefits for quitting smoking are: in eight hours blood levels of carbon monoxide will drop dramatically; in five days most nicotine in your body goes; in one week your sense of taste and smell will improve; in one month better blood flow to your skin is improved, so you look better; in 12 weeks your lungs regain the ability to clean themselves; in nine months your risk of pregnancy complications is the same as a non-smoker; in a year your risk of heart attack is halved; in five years the risk of stroke is dramatically decreased, and you save $4,000 a year to spend on other things.

The Tobacco Plain Packaging Bill 2011 is the latest step in reducing the toll on families of smoking-related deaths. It sends a clear message that the glamour is gone. The new packaging will have the lowest appeal to smokers, making clear the terrible effects that smoking can have on health. Identification of the manufacturer's name can be adequately identified by the retailer to provide the customer with the brand requested. The carton packaging that carries the individual cigarette packs will be labelled with the maker's logo. Identification codes to reduce the probability of illegal tobacco will be present on packets of cigarettes on a voluntary basis by the industry. Criminal and civil penalties will apply to sales of non-compliant packs from 1 July 2012. I have no doubt that plain packaging will reduce the appeal of tobacco products to consumers, particularly to young people, and increase the legitimisation and effectiveness of mandated health warnings and reduce consumer confusion about the harms of smoking. Let us all hope that, along with other comprehensive tobacco control measures, this will reduce smoking rates in this country.

4:56 pm

Photo of Steve IronsSteve Irons (Swan, Liberal Party) Share this | | Hansard source

I rise this evening to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Over recent decades there has been strong bipartisan support in this chamber for reducing the rate of smoking across Australia. Since the 1950s, research has highlighted the negative health effects of tobacco smoking and both parties in this chamber have resolved to make people aware of these dangers while at the same time not moving to restrict freedom of choice of Australians who decide to smoke.

That is why it is surprising and disappointing that over the past few months the Minister for Health and Ageing has, through her conduct in this chamber, tried to convert this public health issue into a partisan political issue. Her attempts to attack the coalition have fallen flat, partly because of the coalition's proven track record on tobacco control as a public health issue. This began with Robert Menzies' introduction of a voluntary tobacco advertising code for television back in 1966, which was converted to a compulsory radio and TV advertising ban by the Fraser government in 1976.

More recently, in 1997, as the minister will no doubt remember, the Howard government announced what at the time was the biggest ever national advertising campaign against smoking, worth $7 million over three years. In fact, it was the Howard government and Tony Abbott as the then minister for health who introduced the graphic health warnings on tobacco products in 2006. These coalition public health measures have had a significant effect. Statistics show that the coalition presided over the biggest decline in Australian smoking rates whilst in government, with prevalence among Australians over 14 falling from 21.8 per cent in 1998 to 16.6 per cent in 2007. This has contributed to Australia having the third-lowest smoking rate in the OECD, behind only Sweden and the US.

What is the Labor party's record on this issue? I think it has increased cigarette taxes a few times. Hardly a proud history on such an important public health matter and certainly not a history good enough to give the Minister for Health and Ageing the right to lecture the coalition. In fact, while the WA smoking rate fell from 22.6 to 14.8 per cent between 1998 and 2007, Australian Institute of Health and Welfare figures show that since Labor took office in 2007 the smoking rate has risen nearly one per cent. The minister's attempts to politicise smoking appear to have backfired after the revelations of her own dealings with big tobacco companies. This has led her to tone down her rhetoric in recent weeks and we hope that she will now work in a more constructive, bipartisan manner.

Other members contributing to this debate have commented on the lack of transparency from the government during its formulation of this policy. For example, the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 suddenly appeared last month without any real explanation as to why it was needed. Unfortunately, there has also been evidence of this lack of transparency in the government's attempts to rush an inquiry through the House of Representatives Standing Committee on Health and Ageing, which was charged by the House with reporting on the two bills in question. The coalition was only made aware of the tabling of this report on the morning of the day it was scheduled to be tabled in the committee and there were a number of procedural issues during the process. There has also been criticism raised that the committee did not accept its wide-ranging brief to consider the impacts of the legislation on small retailers or the impacts of illicit tobacco. The chair has now advised in his report that he believes these matters should be considered by other committees.

Nevertheless, the government has decided to bring on debate today and, as such, the House is forced to consider the bill without the scrutiny of other committees as recommended by the member for Hindmarsh in the report. So, in scrutinising these bills today we need to consider the issues that have been raised both publicly and through inquiries.

One of the major issues raised to date has been the legal impact of this legislation, with concern centred on the possibility that a protracted legal dispute involving the High Court might develop, potentially costing the taxpayer millions of dollars in legal fees. The first legal question mark hanging over this legislation centres on opinions that this legislation would constitute acquisition of property on other than just terms according to section 51 of the Constitution. I note that in an attempt to ease these concerns the government has suggested in section 15 of the Tobacco Plain Packaging Bill that this bill would not apply to the extent that it would cause acquisition of property on other than just terms under section 51 of the Australian Constitution.

The second concern floated is that the legislation may violate article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, a multilateral agreement made under the World Trade Organisation on intellectual property. Article 20 states that the 'use of a trademark in the course of trade shall not be encumbered by special requirements', and there is contention over whether the health exception would apply in these circumstances.

The third legal point of contention is that this legislation may violate the 1993 Australia-Hong Kong investment treaty. In response to these concerns, the government and the minister have on many occasions assured the opposition that its legal position on the plain packaging proposal is 'robust' and on 'strong legal ground'. We in the coalition have accepted this assurance at face value because the last thing this country needs is more waste and more debt from a protracted legal dispute from some of the world's wealthiest companies. However, despite the government's reassurances about its legal position, it is clear that the minister has some concerns, particularly in relation to trademarks. The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 has been hastily added to the main bill, after having not been flagged at all in the government's exposure draft or consultation paper of April 2011. The bill contains a Henry VIII clause which allows for regulations made by the minister under an act of parliament to override the act itself. Hence, regulations made by the minister, under the Trade Marks Act, could override the Trade Marks Act itself.

There are significant questions about the constitutionality of this bill and that is why it has been referred to the Senate Standing Committee on Legal and Constitutional Affairs. These clauses are exceptionally rare and only used when there are no other alternatives. It is the view of the coalition that the original plain packaging bill should have been drafted properly to take this into account. There are questions to answer on whether this bill is necessary and whether the minister should be given the power to override the Trade Marks Act through regulations.

I have heard members of the government argue that a trademarks amendment was enacted by the Howard government in 2000 with regards to the Madrid protocol, but I think those members would acknowledge that this was a very different situation, where there was a clearly defined purpose. There is only vague reasoning coming from the government for this particular bill and no concrete justification, which only adds another element of uncertainty to the debate. It has been added without explanation and the government needs to do a better job than this.

As I am a person with small business experience, the concerns of the small business community in my electorate are never too far from my thoughts. I have received phone calls, faxes and letters from many newsagencies and retailers in my electorate of Swan expressing concern over the bills we are discussing today. These concerns have centred around impacts on stock management, point of sale and stock identification, given all packages will look identical. It is certainly the case, as the shadow minister said in his contribution, that the government's consultation with small businesses and retailers over this issue has been lacking.

It is based on these concerns raised by small business that the shadow minister has indicated that he will be moving an amendment to the Tobacco Plain Packaging Bill 2011. This amendment seeks to allow the use of tobacco companies' trademarks on one of the smallest outer surfaces of a cigarette carton in order to help retailers with the concerns raised above. This may also help with a third issue that has been raised by stakeholders on this legislation, which is the potential for increases in the proliferation of counterfeit tobacco in Australia.

With plain packets and no trademarks it has been suggested that there could be an explosion in counterfeit cigarettes, already a problem for Australia, given the Australian Customs and Border Protection Service has seized 743 tonnes of tobacco and 217 million cigarettes in the last three years. It is important to note that the government has ignored the counterfeit issue so far and indeed has made no attempt to address it in this legislation, despite the fact that articles 15 and 20 of the World Health Organization Framework Convention on Tobacco Control recommends implementing a track-and-trace regime for tobacco products and strengthening the legislation against illicit trade in tobacco products.

The government's proposal is to let tobacco companies manage their own tracking of tobacco products, despite articles 7.2 and 7.12 of the draft protocol to eliminate illicit trade in tobacco products stating that 'the obligations of each party of the FCTC shall not be performed by or delegated to the tobacco industry'. Has the government thought this one through? So, in conclusion, the coalition's position is to move an amendment, during the consideration-in-detail stage of the debate on this bill, in support of small retailers.

I will make one more point. No-one in this chamber is proposing to ban cigarettes. It is legal, and the many people who make the choice to smoke should be respected. We had an issue in my electorate of Swan recently where constituents felt they were being treated with disrespect by one of the shopping centres. I made a number of representations on their behalf because I believe it is important that we do not start to vilify smokers.

For the record, I do not smoke and I do not advocate it. I guess because I had a father who smoked and because of peer pressure I took up smoking as a young person. It certainly was not because of the colour of the cigarette packets. I gave up 10 years ago and that was because I became involved in junior sport. I would advocate to anyone who smokes that they should give up as quickly as possible. I gave up, cold turkey, with no support of patches or anything like that, so it is an achievable target.

Anything we do on a bipartisan basis in this House to reduce the smoking numbers in Australia should be commended. So I share the bipartisan goal of reducing the Australian smoking rate but I will always respect the rights of people in my electorate to smoke. I think the minister's shrill rhetoric over the past months has not assisted in this respect. There is no silver bullet and Australia needs a comprehensive tobacco strategy. California in the US, which has a lower smoking rate than Australia, has already been raised by the shadow minister as a good example of this. I congratulate all members for their contributions on this bill.

5:07 pm

Photo of Michael McCormackMichael McCormack (Riverina, National Party) Share this | | Hansard source

Tobacco smoking is one of the largest preventable causes of disease and premature death in Australia. About 15½ thousand Australians die from smoking related illnesses each year. Will packaging cigarettes in plain packaging make a difference? Whilst the coalition will not oppose the Tobacco Plain Packaging Bill 2011, there are important amendments which are needed.

The government's consultation with small business and retailers over this issue has been sorely lacking. Small retailers are concerned about the impact the government's plain-packaging proposal will have on their stock management and at their point of sale. The difficulty is in differentiating between packets which look almost identical. Many small retailers in the Riverina have contacted my office in relation to this to express their deep concerns. At present, cigarettes are hidden. No marketing is brandished in stores and all advertising of smoking has been removed. Why would removing colour and name branding make any different to smokers who want to buy cigarettes? Smoking is an addiction through what is in the product, not what the packet looks like.

Lung cancer is the second most common cancer in men and the top cause of cancer death. It is the fourth most common cancer in women and ranked second most common cause of cancer death. In 1998, there were 27,675 new cases of cancer in New South Wales. Of these, 2,724 people were diagnosed with lung cancer—1,870 males and 854 females. Males were 2.6 times more likely to develop lung cancer than women, and 2.7 times more likely to die from it.

The coalition has always acted decisively to address the prevalence of smoking in this nation and has a proud history in reducing the smoking toll. Robert Menzies first introduced a voluntary tobacco code for television in 1966. In 1976, the Fraser government implemented a ban on the advertising of tobacco products on television as well as on radio. The former Minister for Health and Ageing and now the Leader of the Opposition was an essential player in increasing the size of the vivid warnings on cigarette packs and helped to drive down the rates of smoking in Australia. As a result of these initiatives, the prevalence of smoking in Australia declined to be amongst the lowest in the world. In fact, between 1998 and 2007 smoking prevalence in people 14 years and older fell from 20.8 per cent to 16.6 per cent.

Any suggestion that the coalition is soft on tobacco companies is just plain nonsense. We do understand the need to drive down smoking rates, which is for the good of the individuals concerned and also for the overall health of the nation. The coalition continues to support sensible measures which actively discourage smoking. We have recently supported legislation to tighten electronic advertising restrictions. For this reason, we will not oppose the government's plain-packaging legislation, but we do seek to move worthwhile amendments.

Labor's bill claims there is 'significant evidence' to suggest that plain packaging will work, that it will actually drive down the use of tobacco products. It is fair to say that a lot of that evidence is inconclusive at best. It puts forward a range of hypotheses which I am afraid do not come up with a definite conclusion which is not quite as convincing as the government would have us believe, so I have some significant doubts about where the government is trying to take us in that respect. Having said that, I note that the problem the government has in this space is that we are talking about a legal product. I am uneasy about any attempts by a government to strip away the property rights of an individual or a company. The concern there is always going to be about what is next.

This Labor-Green alliance is taking away our freedom to make our own decisions and pushing us into a nanny state. We know that high-fat, high-sugar foods are not necessarily good for us and understand overconsumption of alcohol is not desirable for a healthy lifestyle. However, are we going to put obesity warnings on hamburgers and packets of biscuits or plain-packaging bans on alcohol and bottles of wine? Is that where we are heading with this nanny state type legislation? If the Greens have their way, perhaps or even probably yes.

I make these comments in a constructive way, because I abhor smoking. My own father died from lung cancer three years ago. It is something I personally feel very strongly about. But I am worried that the government is investing a lot of time and effort in a particular initiative without the evidence base or scientifically proven results which would be worth the expense and effort of the path along which we are heading.

Whilst smoking is on the decline in Australia, it is particularly concerning that almost 60,000 teenagers aged between 15 and 17 are regular smokers, and five per cent of 12- to 15-year-olds smoke. I believe more education is needed about smoking, particularly at the secondary school level. Primary school children too need to be warned of the dangers of smoking. We need to be getting through to children and teenagers about the dangers smoking poses to them, and the long-term implications diseases such as cancer, heart disease and respiratory diseases pose. This is where all the effort of the government should be going: into education.

In many cases, a premature death is just one aspect of the finality of smoking. Living with smoking related symptoms is cruel and painful. This is the path we as a parliament, as adults who have witnessed the effects of smoking, should be concentrating on: educating younger generations, not simplifying the marketing of what cigarette packs look like. It is not an uncommon sight to see pregnant women smoking. Despite advertisements on television and the graphic warnings advising of the risks of smoking to an unborn baby, the addiction factor is so strong that many pregnant women continue to smoke even though it could harm their unborn child.

I cannot emphasise enough that we need to be investing more in education: educating these women, educating students and helping smokers through a quit program with the appropriate support required. The health benefits of quitting smoking are remarkable. The human body starts to repair the damage from the very first day a smoker quits. Within eight hours, the excess carbon monoxide is out of the bloodstream, within five days the nicotine has left the body and within three months lung function starts to improve. If a person quits at the age of 50, you halve the risk of smoking related death. But if a person quits at the age of 30 they avoid almost all of the excess risk. Education and support are vital to helping a smoker quit. Ultimately, it is up to the individual if they want to quit to have the absolute willpower to do so. We cannot force someone to quit. Tobacco control is an important measure, but we must tread carefully because we must not become—as I said before—a nanny state.

While Australia is generally seen by its peers as one country which has a lower rate of illicit and counterfeit tobacco, there are some concerns that plain packaging may increase this rate. The Australian Customs and Border Protection Service annual report shows that over the past three years it has seized 743 tonnes of tobacco and 217 million cigarettes. The government has completely ignored the counterfeit tobacco issue and has made no attempt to address it through this legislation. This is despite the fact that the World Health Organisation also recommends implementing a track and trace regime for tobacco products and strengthening the legislation against illicit trade in tobacco products. The government has instead let the tobacco companies manage their own tracking of tobacco products on, would you believe, a voluntary basis.

The freedom of the individual is paramount. This legislation to impose plain packaging on cigarettes has been described by many as a nanny state initiative, and some see it as a complete waste of time. As proposed, the legislation represents another hit to businesses, particularly small retail operators, and consumers and it threatens to drive customers from small businesses into the arms of the retail giants, the big duopoly. Worse, I fail to see how it will work as a smoking prevention measure. Cigarettes are already required to be away from sight at most points of purchase. Wrapping cigarettes in olive-coloured plain packets has been proudly proclaimed by the health minister as a world-first, but it is a smokescreen. The legislation introduced simply plays politics and achieves nothing. I think smoking rates will continue to fall regardless of this legislation.

5:16 pm

Photo of Ken WyattKen Wyatt (Hasluck, Liberal Party) Share this | | Hansard source

I rise to support the Tobacco Plain Packaging Bill 2011 insofar as the impacts that smoking has on the health of Australians, the long-term cost to Australian society and the healthcare system are significant. I have been involved with the work of the Preventative Health Taskforce and some of the representations made to that task force on the arguments for the reduction in the levels of smoking within Australian society and the need to consider strategies that would reduce the level of uptake of smoking, particularly amongst young people, and also prevention programs that see a downturn in the number of Australians who smoke. Part of the interest in the discussions with the Preventative Health Taskforce was in some of their thinking around some of the strategies, and we were certainly exploring the need for well-informed awareness programs that provide an educative process that would enable people to give greater consideration to the risks and health impacts that smoking has on them.

One of the arguments that are always straightforward and simple is to increase the excise, but one of the alternative debates to that is that those who tend to live in low-socioeconomic circumstances will reduce smoking for a period of time but do not sustain it; they return to their smoking practice or habit. In making that decision, they then make decisions about what they alleviate when they need to set money aside in order to pay for the cigarettes that they buy. Often choices are made around prescription medications or a child's excursions. So there are a whole range of factors where, if you have a limited budget and you want to continue smoking even though the price has gone up, you start to make choices, and some of them are the wrong choices.

I had the privilege of working on the Aboriginal and Torres Strait Islander Health Performance Framework, in which we looked at why we needed measures, the findings for each of the measures and then the policy implications. What struck me when I was working through that was the impact of tobacco or smoking on health—both passive smoking and direct smoking in which an individual chose to expose themselves to risks. Even though they had the knowledge from what they had seen and what was on cigarette packets, that did not cause them to diminish that harmful behaviour.

In this whole debate I have wondered about the impact of the plain packaging. Certainly, when I look at the mock-ups of the plain packages, the visual images of the types of cancer or other health problems you can have with smoking are extremely graphic, but I also accept that you can switch those off after a while, or you find a container that you can fit these into and it alleviates that message.

I also talked to retailers within Hasluck and sought their views on a range of issues around what it would mean for them, and the first thing they said to me was that the plain packaging may not make a difference. They had all run straw polls just to see if people would stop smoking or reduce their smoking with plain packaging. They indicated to me that in each of their stores or outlets the indication was that people would not change. What they were annoyed about was the fact that the colouring of their packet would be affected, but it would not alter their smoking. There were a couple of very key, important issues that the retailers raised with me. They made the point that, as my colleague who spoke previously said, cigarettes are locked behind doors. From their perspective the retailers saw that as workable and they also saw it as helpful, because when you run a business every second and every minute is money to you. They said it was easy just to scan the shelves and see cigarette packets by colour. They said that if we go to plain packaging then their problem would be that those customers who are illiterate or who have English as a second language identify their packets by colour. So they put to me a number of propositions that would impact on their time. But, strangely enough, they also conceded that the importance of health was a significant factor that should be considered. Their argument was for better awareness programs and more funding. To that end, I had some degree of empathy for their needs given the task that they will have in having the base of their packages roughly the same in visual appearance, which makes it a detraction from their time—although by human nature we adjust, and they would tend to find ways of being very effective and efficient in the way that they would dispense cigarettes. But I do have some degree of sympathy for their situation. Tax versus plain packaging? I certainly would not support an increase in excise on tobacco and its supply at this time and would lean towards plain packaging, because I think that that is far better to alleviate some of the cost of living stresses that families within my electorate who do smoke will experience, particularly in the context of rising prices with the onset of a potential carbon tax that will have an impact. Also, I think that the initiatives of the Australian health ministers, certainly of the Council of Australian Governments, have strengthened an awareness around the need for people to weigh up and consider their health in the context of smoking and the impact of tobacco. What I have been pleased to see is the focus on passive smoking. Certainly the Preventative Health Taskforce and the work led by Professor Michael Daube and many others has highlighted the need for very considered thinking by those in households where there are children about the impact on them of tobacco smoke. If this approach to plain packaging works and helps further to decrease the number of people smoking then it is at least a constructive outcome.

By the same token, I have a concern about the way in which we can become a nanny state. At times we have to give people responsibility for their decisions. It is easy for governments to legislate on a range of factors in which we become protective in a way that sees the state intrude on the choices that people make. To that end I would not want to see a further reduction in the way that Australians do have a choice. However, I do see the benefits of at least plain packaging that might make that difference.

Another element that is of interest to me is that, when I walk past hospitals, I am always fascinated to see people standing there with drips in their arms and bandaged getting in as many cigarettes as they can in the short period of time they can stand out the front of the hospital.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

And in some cases it is pregnant women outside a maternity hospital.

Photo of Ken WyattKen Wyatt (Hasluck, Liberal Party) Share this | | Hansard source

I agree with you, it is pregnant women also. To me that is an anomaly in terms of the health of an individual, given the level of impact that smoking has, that it is detrimental to the wellbeing of a child in a womb or the person who is a patient.

In the inquiry by the House of Representatives Standing Committee on Health and Ageing, our discussion focused on the health prevention measures, the health outcomes and the health benefits to Australian society. We hoped that the amount of funding that is needed to be spent on treating people whose health situation is exacerbated by their smoking will diminish and that that funding can be directed towards preventative measures in other health sectors and other initiatives within those sectors.

One of our challenges in all of this is the balancing of responsibility against the need to intervene. I suppose the task force heard this in submissions to it. Certainly the health and ageing parliamentary committee heard arguments from those who have a very strong interest either as a wholesaler or retailer or as a consumer of the product. In weighing up those arguments we considered the health impact, the impact on work and the workforce, and the level of poor health. We also considered the World Health Organisation frameworks that encourage a reduction in the level of smoking and the suggestion that plain packaging would be highly beneficial in discouraging people from taking up smoking.

In reading through some research papers I was interested to see that countries such as Canada, the United Kingdom and New Zealand have considered at some point introducing plain packaging. One of the challenges in that is the issue of intellectual property. Certainly the legislation that related to intellectual property and plain packaging was referred to the health and ageing committee, but it was not within our scope or experience, particularly legal experience, to make a judgment with respect to that element of the legislation.

I hope that at the end of 12 months we review what progress has been made as a result of plain packaging, to see whether it has made a difference and whether it has led to a reduction in the take-up of smoking, particularly by younger people. What perturbs me is the number of young women I see smoking, particularly in the teenage years. If we can see a reduction in that 12-month period and then take more of a longitudinal look at this issue, maybe the decision to have plain packaging will be vindicated. It may be vindicated with respect to the amount of funding required to provide hospitalisation treatment for those who experience cardiopulmonary illnesses, chronic disease conditions and other conditions that have a related impact from smoking. I also hope to see that impact of passive smoking—on a child as it develops in a womb, or in its formative years—diminish. Having travelled overseas I enjoy the clean air that we have in restaurants in this country and being at sporting venues, events and functions where smokers are now much fewer than nonsmokers. The Tobacco Plain Packaging Bill, whilst challenging in concept and in the debates that have occurred and from the evidence we heard in the committee, has challenged my thinking about prevention, awareness, targeting and the relationship of colour to a tobacco brand's IP. The needs of retailers in all this have been very illuminating.

I acknowledge that the Minister for Health and Ageing in her considerations has looked at the health impact outcome and has embedded that strongly in her speeches. Having had a health background for some period of time, I would endorse those messages so that we have a population which is much healthier and has lower rates of illness from tobacco smoking and a community in which people are given the opportunity to make choices because there will be some people who will continue to smoke. Within a democracy, I would equally defend their right to exercise that choice, but I would encourage them equally to relinquish the habit of smoking, consider their health and look at alternatives that will prolong their life, give them the opportunity to be healthy and to contribute to Australian society.

5:31 pm

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

One point on which I strongly agree with the member for Hasluck relates to the fact that in a democracy people should be allowed to smoke if they wish, however undesirable that habit might be. I think we always have a difficult problem in our community balancing the rights of people to do certain things even if those things are not good for them with the fact that it would be enormously better and in the community's interest were those people not to take that course of action. A prime example of that is cigarette smoking and the way in which so many people over so many years have become addicted.

For a moment we probably should pause and just say how fortunate we are in Australia to have actually reduced the incidence of smoking. I recall people telling me that, in times past, medical practitioners used to advise pregnant women to smoke as it would help them relax. I can recall, as others can, going to places where there were smoking sections and non-smoking sections. Somehow in those days we did not seem to have our nostrils as offended as they now are by the smell of cigarette smoke or, indeed, smoke from other tobacco products. I remember my grandfather had the most incredible array of pipes and each of them had a name. His favourite one was called Thora and was shaped like a lion. It was a beautiful pipe. He happily lived until almost 90. But the impact of smoking on the collective health of the Australian community is something that ought not to be underestimated.

Governments have sought over the years to combat smoking through a range of measures, using both the carrot and the stick. The Liberal and National parties in government have a really good track record with respect to tobacco control and in reducing the rates of smoking in this country. Way back in 1966, the then Prime Minister, Sir Robert Menzies, introduced a voluntary tobacco advertising code. Ten years later, in 1976, the Fraser government implemented a ban on the advertising of tobacco products on television and radio. Dr Wooldridge, in June 1997, announced what at the time was the biggest ever national advertising campaign against smoking with the federal government then spending some $7 million over two years. The Howard government, in 1999, reformed cigarette taxation from a weight basis to a per stick excise. The Howard government, with the now Leader of the Opposition as Minister for Health and Ageing, introduced the graphic health warnings on tobacco products in 2006. In 2009, the Liberal-National Party proposed an increase in the tobacco excise, a measure which was happily—and I thank the Minister for Health and Ageing for this—later adopted by the government.

The Liberal and National parties have presided over the greatest decline in smoking rates whilst in government. It is illuminating to recognise that the prevalence of smoking declined from 21.8 per cent in 1998 to 16.6 per cent of Australians over the age of 14 by 2007. These are amongst the lowest rates of smoking in the world. The decline in smoking rates in Australia, with a fall of 40 per cent for men and 44 per cent for women between 1989 and 2007, were amongst the biggest in the OECD. The fall in smoking rates amongst women was the biggest in the OECD. So it is wrong to suggest that the Liberal-National opposition is soft on tobacco companies.

The reduction in the rate of people smoking cigarettes has partly been as a result of the increased cost of cigarettes and partly as a result of education. I think it is also due to the fact that people recognise that smoking is not a healthy thing to do. In 2011, more and more people are aware of the benefits of health, the benefits of healthy practice and the benefits of not smoking.

I am very pleased to join the debate on these cognate bills. As other honourable members have said, the Liberal-National opposition is supporting the first bill, the Tobacco Plain Packaging Bill 2011, with an amendment to be moved but is opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I think one ought to give credit where credit is due and there is no doubt that the government, through this bill, is seeking to build on the excellent record of former Liberal-National governments in the improvement of the rate of people who do not smoke in Australia. I think that most people, even many smokers, would accept that smoking is a filthy and costly habit which has been allowed to gain a considerable foothold in societies around the world, including in this country. We do, however, have a situation here where the rate of smoking is so much lower than in many other parts of the world. When I have travelled, I must confess that I have been shocked at the wafting smell of cigarette smoke almost everywhere and I have forgotten that once in this country we had the same sense of pollution and the same kind of pollution.

Smokers themselves will tell you that it is an unwelcome habit. Many of them hate themselves for smoking. Many of them understand that their health is diminished as a result of this habit and also that their lifestyle has been diminished because the smoking habit tends to consume considerable amounts of income. I am actually not sure what a packet of cigarettes costs today, but I understand that it is quite expensive. Some people smoke a packet a day, two packets a day or three packets a day, so it may well cost them $45 a day. If you multiply that $45 by the number of days in a year and then the number of years in a lifetime, often it is not hard to see that tens of thousands of dollars, if not hundreds of thousands of dollars, could have literally gone up in smoke. Many smokers have described themselves quite bluntly as the 'sucker' at the end of their cigarettes, and I suppose that term applies to them in more ways than one.

The biggest danger is that once new smokers get a feel for the hit they receive from nicotine and cigarettes it is only a short step further to where they become addicted and dependent on cigarettes. All of us would know of people who, when they had a difficult phone call to make, would sit down and light up a cigarette. That would enable them to accumulate the mental concentration necessary to carry out what they perceived to be a difficult task. Unfortunately, although they might temporarily receive a euphoric feeling, as with many other addictions the victim is slowly dragged towards financial disaster and also health disaster.

The cigarette industry has through advertising encouraged people to smoke. I suppose they want to sell cigarettes and that is understandable in a commercial sense. However, I am pleased that they do not have the same opportunity to advertise as they once did. It is hard to believe that not so long ago there were people who actually said that lung cancer was not caused, partly, as a result of smoking cigarettes. Lung cancer is a considerable killer in Australia. Figures from 2007 show some 9,703 sufferers of lung cancer at that time in this country. That same year saw 7,626 recorded deaths from lung cancer. One would be quite incorrect to suggest that all lung cancer could be attributed to smoking, but smoking does account for a considerable number of people who fall victim to lung cancer.

It is, therefore, the responsibility of the government of Australia—and in fact all other governments regardless of their political make-up—to do all that they can to maintain the health of Australians generally, and with the benefit of the facts now out there about smoking and the impact it has on so many Australians, there is little argument from anyone that more needs to be done to address the problem and reduce the deaths. It is the government's responsibility to do all that it can to reduce smoking and ensure that those who choose to smoke are given the best information available so that they are able to make an informed decision about this practice so as to reduce illness and death and reduce the costs of health care in this area.

The first health warning appeared on cigarette packets in the early 1970s and it was a simple warning: 'Warning—Smoking is a health hazard', and I mentioned before about steps taken by the Liberal-National government when graphic pictures accompanied various warnings on cigarette packets. Under the legislation currently, the warnings must cover 30 per cent of the front and 90 per cent of the back of the box. Pictures are accompanied by printed messages such as: 'Smoking causes emphysema', 'Smoking causes throat and mouth cancer', 'Smoking clogs your arteries', 'Smoking harms unborn babies', and of course 'Smoking causes lung cancer', and others.

This bill aims to strengthen further, from 1 January next year, the message to smokers and those thinking of taking up smoking. From that date under the provisions of the Tobacco Plain Packaging Bill 2011, all forms of brand logos, colouring and printed promotional text will no longer be allowable on cigarette packets. The new regulations will allow only a brand name and graphic health warnings.

There have been some concerns and objections regarding the right of any commercial company to display its company logo on its products and this issue has been addressed in part in the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Under the Agreement on Trade-Related Aspects of Intellectual Property Rights, the TRIPS agreement, administered by the World Trade Organisation, the 'use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements'. However, the obvious concerns in relation to plain packaging are somewhat allayed as the WTO agreement does include exceptions based on health reasons. This bill aims to address the concern by overriding any tobacco company concerns with the Tobacco Plain Packaging Bill 2011.

There is a group in our community who is disadvantaged by cigarette smoking but who did not make the decision to actually smoke. They are forced to smoke because of the polluted atmosphere when they are around people who do smoke. I refer of course to passive smokers. I suspect that even those people who do not smoke have over the years absorbed quite a lot of smoke passively and there have been situations where the health of people who are victims of passive smoking have been affected either as adversely or even more adversely than the health of people who actually do smoke.

So I believe this is a work in progress. The bills before the House are not a panacea. They are not going to solve the problem overnight. It would be delightful in a health sense if the government could ban smoking—except that would be incompatible with Australia being a democratic society and people being able to do what they want when they want as long as the rights of others are not adversely affected. With smoking, the rights of others are adversely affected because passive smoking has impacts for people who are not actually smoking.

While the simple solution might be to remove this product from the shelves, I do not believe that is an acceptable proposition in a democratic society like Australia. Therefore, the government must use the range of weapons at its disposal. Plain packaging of cigarettes will make them less attractive. Advertising campaigns pointing out the dangers of smoking must be continued. I believe that over the years governments will continue to increase the rate of excise levied on cigarettes with a view to discouraging more and more people from continuing or taking up this practice which is clearly adverse to their health. Some people like to smoke socially, but the reality is that nicotine via cigarettes is clearly addictive. There are many people who might want to occasionally light up one with friends and ultimately end up smoking one, two or three packets a day.

I do support the Liberal-National position on these bills. I commend the Tobacco Plain Packaging Bill 2011, with the amendment, to honourable members.

5:46 pm

Photo of Bruce BillsonBruce Billson (Dunkley, Liberal Party, Shadow Minister for Small Business, Competition Policy and Consumer Affairs) Share this | | Hansard source

I rise to support the coalition's position of being in favour of the Tobacco Plain Packaging Bill 2011 in this second reading stage and with some thoughtful and well-considered amendments in the consideration in detail stage and to oppose the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Tobacco smoking is the largest preventable cause of disease and premature death in Australia. When in government the coalition acted decisively to address the prevalence of smoking in Australia. The former coalition government presided over the biggest ever fall in smoking to a prevalence rate of 16.6 per cent for people over the age of 14, giving our nation one of the lowest smoking rates in the world. As the health minister in the former coalition government, Tony Abbott introduced the current graphic health warnings that cover 30 per cent of the front and 90 per cent of the back of cigarette packaging.

The coalition has always supported and will continue to support sensible measures to reduce smoking rates. That is relevant because in this debate the Minister for Health and Ageing and some government members have sought to characterise the coalition's position as being somewhat less than committed to a coordinated and considered effort to reduce rates of smoking in Australia. The minister herself has gone so far as to suggest that the coalition's position is being dictated by big tobacco—a statement I found offensive and that the record shows is untrue. That has created a very difficult atmosphere for this discussion and for considered debate on what additional steps we as a nation need to take to reduce smoking rates amongst young people particularly and amongst those who have found their addiction very difficult to shake over many years.

Particularly frustrating for those on the coalition side is that it seems that whenever the government was in trouble it would reannounce its plain-packaging tobacco measures. It was as if they would say: 'We're in trouble. Break the glass. Talk about tobacco.' That did not assist in a thoughtful and considered debate on the merit of these measures and created an atmosphere where it was very difficult to have sensible discourse on what else might be done or what finetuning might be worthwhile to a broad plain-packaging initiative.

I reiterate that the coalition has a proven track record with regard to tobacco control and reducing smoking rates. I will not go over all of the measures that have been canvassed by previous speakers, but they include the initiatives of Robert Menzies, the Fraser government and Dr Michael Wooldridge, who was an indefatigable advocate for action to reduce smoking rates, and the broader work of the Howard government in terms of reforming cigarette taxation and advertising the graphic health warnings. Even when in opposition the coalition first proposed an increase in the tobacco excise in 2009—a measure that was later adopted by the government. That is the record of the coalition and any suggestion that the coalition is soft on tobacco companies is just plain nonsense and completely unsupported by the facts.

We are faced now with what to do next. What considered action will see a further reduction in rates of smoking uptake and smoking prevalence? There is no one straightforward solution that will do the trick. A coordinated strategy is what is required. Also we can look internationally to see that a concerted strategy can achieve results, but action without thought can actually produce unintended results. In some jurisdictions, where a coordinated strategy has not been introduced, illegal tobacco, chop-chop, has found a bigger market share.

That brings us to the bills before the chamber today. There is the effort to introduce plain packaging, as it is characterised in the Tobacco Plain Packaging Bill, and also a second bill that is mainly to do with the potential of this action to offend trademark obligations. We are opposing the second bill relating to trademark amendments because there needs to be an outstanding argument put forward as to why a regulation should trump a piece of law. The government has failed to make that case, and that is why the coalition will oppose that bill. We do so in that there are certain protections available to people in relation to their property right and more broadly property in section 51 of the Australian Constitution. Where those protections are violated there should be consequences.

The government have repeatedly said that they have taken account of those constitutional issues and have also taken account of the TRIPS agreement and are on 'robust and strong legal ground'—I think those are the words—to proceed down the course they are proposing. We would like to accept on face value those reassurances, but this is difficult because we cannot actually access this legal advice to see whether or not it is more political speak from the government, which has used as a political strategy this issue that was once pursued in a bipartisan spirit. We have not seen that legal advice to learn how robust and dependable it is. What is interesting is that the bill seeks to ensure that, if there is some offending of the acquisition and property on just terms, it then has a consequence as to the application of the bill. That setup seems to point to some legal doubts about the strength of the advice the government has received and, as I said earlier, the concept that a regulation should trump a piece of statute is something that should be avoided wherever possible. That is why the opposition will be opposing the trademarks amendment bill. We do not think the case has been made for that action where regulation made by a minister could override the Trade Marks Act itself. That is an exceptionally uncommon cause of action and, because the coalition have not been privy to the legal advice that the government aims to rely upon, we find that course of action quite dubious. We believe that, if the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 is necessary, there should be other action considered and the minister should not have the power to simply override the Trade Marks Act through regulation if he or she feels that is the way to go.

On the broader question of the plain-packaging measure I have been alarmed at the lack of engagement between the government and the small business community. I was troubled by the fact that a very legitimate range of concerns have been raised by small retailers as to the impact of this measure on their business and on their costs of doing business but no-one in the Gillard government seemed to be interested in those points of view. It does carry forward a history of the Rudd-Gillard government not really taking small business seriously and that is reflected in the fact of 300,000 jobs being lost in the sector since the Labor government was elected.

But here is another example where the Commonwealth led by a Labor government seems to think it knows best and legitimate concerns are just brushed aside as if they are immaterial and not worthy of proper consideration. Not only has the minister displayed that kind of dismissive attitude but even the parliamentary inquiry process seemed to go out of its way not to engage with the small business community, particularly small business retailers, about their legitimate concerns.

The coalition has listened to those concerns and the amendment proposed by my friend and very capable shadow parliamentary secretary Dr Southcott seeks to address some of those concerns as they relate to the storage and stock management of tobacco products. This activity is a long way away from the point of sale—in back storerooms. Stock control and management, the ready identification of what tobacco products are at hand and what needs to be ordered, should be facilitated by the kind of amendment that the opposition has proposed—that is, a marking on one of the two smaller packaging surfaces for cartons so that small businesses can properly manage their stock.

I still believe that there should be scope to more genuinely address a broad range of small business concerns but it is clear that the government is just not interested in doing so. The small business community have contacted me and raised a very legitimate range of issues. I will just touch on those briefly. Then I will come back to the motivation for this measure and show how I thought there was scope for common ground to be found but there needs to be an appetite by the government to engage in a sensible conversation. Sadly, that appetite is not present.

The small business community, particularly the retailers, are the meat in the sandwich of most of the tobacco control measures. We have already seen many small business retailers having to adapt to display bans. A decision was made that there needed to be, in many cases, a refitting of the shop presentation and point of sale so that tobacco products were not visible to people when they entered retail premises. As I understand it that was aimed at not activating a spontaneous desire to buy tobacco—someone fills up their motor vehicle, goes in to pay, sees a whole bunch of cigarette packets and thinks, 'I don't smoke, but I'll buy one,' or something of that kind. There has not been a lot of evidence to show how effective that has been. What is clear though is the cost that the imposition of that measure has provided for small business retailers and that it is another example of how small business retailers are the meat in the sandwich.

When we come to the area of penalties that are faced for the sale of tobacco to minors, I entirely agree that they should be penalised where it occurs, but the sale process actually involves a purchaser. What I do not understand is why this is so vigorously pursued. Even my own city, the city of Frankston, recently on 16 March boasted about how they had gone after 60 retailers to see whether they were upholding the law of not selling tobacco products to people under the age of 18. There were a number who had not done the right thing. The circumstances under which people are not doing the right thing need to be explored. That is a discussion for another day.

What I find fascinating is the case of a mum-and-dad owned corner store that has half-a-dozen big, strapping 16-year-old lads come in and give them plenty of advice about what they should be selling to them and plenty of indications that, if they are not going to make that sale to them, there will be all sorts of consequences for their business. There is plenty of intimidation to say that retailers should engage in a transaction with people who may well assert that they are over the age of 18 but refuse to provide any evidence that they are. You might have someone who is somewhat taller than me—and I am somewhat over the age of 18—looking very much over the age of 18, but who is perhaps not.

Mr Windsor interjecting

Thank you for the interjection. What happens in that case is that the entire weight of the law lands on the retailer. Is this fair and reasonable? Surely, there should be some responsibility carried by the person who is under the age of 18, who is seeking to purchase or is in possession of tobacco, but there is no such requirement. The small business community is saying, 'Hang on, this is another example where we are the meat in the sandwich.' The penalties that they face for selling tobacco to under-age customers are steep and may involve a loss of licence while the under-age person seeking to buy or in possession of the tobacco faces no penalty.

Retailers then point to the growth of the illegal and counterfeit market that seems immune from enforcement activities while there is brazen selling going on in community markets on street stalls and even, in some cases, with an offer of home delivery of chop-chop—illegal tobacco products. That seems to be something that cannot be detected by enforcement authorities, yet there is this coordinated effort to crack down on small business retailers. Even the large supermarkets are positioning themselves in the market. Just as we have seen them push their own brand with other products, right now Coles is importing cheaper cigarettes from Germany, labelled 'Made for Australia', so that they can optimise their profit margins and sell at a cheaper price. How is that helping the issue of managing the uptake of tobacco in Australia? All these things are going on and small business people are saying, 'Where is the pro-active education campaign to senior primary school students about the dangers of smoking?' There is a price signal benefit from the continual price rises for legitimate retailers, but there is little action on excise lost on chop chop or on the health and safety concerns of illegal products. There is the sense that any intervention will do without the need to provide supporting evidence.

This is the atmosphere within which the small-business community operates. I thought there was some scope to consider even more health warnings on the front of the package, even greater visual displays, rather than the generic name and variant which is displayed in a number of locations under the government's proposal. Have more graphic health warnings, have greater warnings for smokers and those considering it, and in return maybe a small stripe on the bottom of the packet—not something that is highly visible, but something that at least the small-business person could put the cigarettes top down in their chutes, readily identify them and not at another burden to their cost. That would also go some way to guarding against what the minister says are efforts 'designed to remove the last vestige of glamour from tobacco products'. We could have done more, we could have improved this with some fine tuning, but for that to occur we need those opposite to be willing as well and that has not happened.

6:01 pm

Photo of George ChristensenGeorge Christensen (Dawson, National Party) Share this | | Hansard source

In rising to address the Tobacco Plain Packaging Bill, I have a vision of these little men or women in olive green uniforms jumping out of their little olive green car with 'fun police' written on the side in a small and discreet font. Since this minority government was cobbled together with a plethora of promises and compromises, we have seen this little olive green car popping up all over the place. The fun police do not want us to enjoy a drink, so they tax the alcopops more. The fun police do not want us to play the pokies, so they regulate them. And the fun police certainly do not want us to smoke, so they put cigarettes in olive green packets. It is as if there is a little Julia or Nicola in an olive green uniform on your shoulder and, when she is not telling you what to do, she is making a sneaky grab for your wallet. We must wonder if there is any place in our recreational lives that the fun police will not show up under this government, because if that little olive green car can fit through the bedroom doorway then I bet it will even show up there too!

I recognise the issues associated with smoking, and in an ideal world the concept of setting fire to a bunch of chemicals and breathing it in would never have been invented. But it was invented; it was invented and it was legal; and it is still legal. At what point do we stop this incessant attack on people who choose to smoke? Is this the end of it? If not, what will be the end of it? For the security of people who smoke and the businesses whose livelihoods depend on the tobacco industry, please tell us where this is going. If you are fully against it, then just ban it. It would be interesting to know if that is the government's end policy. The policy in other areas is: if it moves, tax it; if it does not move, ban it. If they are not willing to ban it, then this is just more hollow rhetoric from this government. If they are not serious, then get back to focusing on something more productive, like getting the basics right on everything else.

The government talks a great deal about leading the world with this plain packaging bill, just like they make a great deal about leading the world with a carbon tax. But do we want a government that is trying to lead the world. As one constituent in my electorate of Dawson said, 'We don't want a government that leads the world, we just want them to lead the country'. We have to ask: if Australia is going to lead the world, is this the government we want to do it? The people out there, the people who are genuinely and justifiably disenchanted with this government, those people do not think this government is capable of leading a dog, let alone leading the world. But here we are, standing on the edge of a cliff, getting ready to be the first to jump and hoping like hell that the parachute is packed right and wondering if someone has really thought this process through. The truth is that plain packaging probably will not work.

It probably will not do a thing to reduce the level of tobacco use, which is unfortunate. It probably will not do a thing to stop people from starting to smoke, which is unfortunate. And it probably will not do a thing to make people stop smoking, which is very, very unfortunate. There is very little research covering what effect plain packaging will have on consumer behaviour. The Canadian House of Commons Standing Committee on Health noted the lack of evidence to support such a case. Their expert panel found that plain packaging would have a slight to moderate effect on smoking among teenagers.

While the opposition does not plan to oppose the enabling bill being debated in the cognate debate, I do believe that it is a bad bill and the responsibility for this bad bill will ultimately rest on this government. Any legal consequences that arise out of the bill will rest solely on this government. These bills, although they provide a doubtful benefit, also come with an inherent legal risk. Even before this bill came up for debate, there had been significant discussions about potential legal action from the tobacco companies. I can understand why a company that invests millions of dollars into their brand and their trademark would be upset when they can no longer legally use it. There is a serious question about whether or not the government will be liable to compensate for the acquisition of this property in this case. The government will contend that they are not acquiring the property because they are not going to use it. But taking candy off a baby and then throwing it in the bin does not take away the fact that you took the candy from the baby. The fact that there are other legal barriers associated with these bills is of great concern. I refer of course to the Paris Convention for the Protection of Industrial Property and, as the Minister for Trade tends to go on about, the World Trade Organisation's Agreement on the Trade-Related Aspects of Intellectual Property Rights 1994—

Photo of Craig EmersonCraig Emerson (Rankin, Australian Labor Party, Minister for Trade) Share this | | Hansard source

It is a one-world government.

Photo of George ChristensenGeorge Christensen (Dawson, National Party) Share this | | Hansard source

Look it up, Craig.

The government believes that there is a loophole. The loophole is in the interpretation of the ambiguous word 'unjustifiably'. The government is willing to stick its neck out here; it fancies its chances with this loophole. But do we want a government sticking its neck through a loophole for legislation that will probably provide very little benefit? We must wonder, given past performances, if the government has fully thought this through. Have they thought through what people will do and exactly what impact this bill will have? Have they considered what the tobacco companies will do? Will the tobacco companies be too scared of the government to take legal action? Will they baulk at the cost of such legal action? This government, and certainly the member for New England, would have us believe that they are here to stop us from smoking, but they are not willing to buy the trademarks from the tobacco companies. Those two statements prove that the government is not really serious about the health of this country.

And what about the consumer and tobacco market in Australia? As I said, I do not believe there will be much effect on the consumer. But what about the market? How will that work? Has the government considered how the industry will be forced to compete on price, and how much more attractive the prices will be to smokers and potential smokers, especially young people? Will the move cause an increase in the illegal tobacco trade? I would like to think that a government would fully think through all the consequences of a bill before it puts that bill before parliament, but history suggests this is not the case with this government.

What will the affect be on shopkeepers and retailers? Did anyone consider the practicality of trying to determine which pack of cigarettes is which when faced with a cabinet full of little olive-green packets? People who work in the corner store and the independent service station are usually very busy people. They are selling, taking money, watching the store and helping customers. There is usually only one person to serve at the counter, and they are run off their feet. What impediments will this bill put on those workers and those businesses? As is the case in some shops, including in my electorate, the person behind the counter may have English as a second language, and that will only complicate the issue.

Another niggling worry I have is that, if the government is right and somehow this bill does reduce the number of smokers in our community, who will then bear the financial brunt? Do they seriously think that it is going to be British American Tobacco? Tobacco firms with a worldwide consumption can easily do a high-intensity marketing campaign in Central America or South-East Asia to make up for the relatively small loss of revenue here in Australia.

The people who do need to worry about a small loss of turnover for the tobacco companies are the corner store and the independent service station, who make a small margin on tobacco but generally rely on the tobacco trade to generate the traffic required for the rest of their trade. If the tobacco companies lose a market they have the money to take the federal government to court, as I mentioned before. Who does a small shopkeeper turn to for compensation? How do they fund a court case against the government? Will the federal government now grant small shopkeepers and independent service station owners a 'cigarette income loss rescue package'? Or will this government pull out the bandaid like they did when they stuffed up the live cattle export trade and put people out of work? Will they once again offer the dole to those who lose their job? This could be one of the unintended consequences of this bill.

While I doubt the bill will actually change consumption, we should never underestimate this government's ability to create detrimental, unintended consequences with whatever they do. Like it has been said elsewhere, this government has the Midas touch, but in reverse. Everything they have touched so far this year has turned to what can only be referred to in parliamentary terms as 'fertiliser'.

What they want to do with this plain packaging plan is to exert more control over what we, as citizens, do. We are being further and further devolved into a people who are not capable and not allowed to make decisions for ourselves. But we are intelligent people who want to be able to make a choice. People want freedom, and if we keep taking away people's choice we are taking away their freedom. Australians do not want to be prisoners in their own lives, with 'nanny state Nicola' making all the decisions for them.

Photo of Tony WindsorTony Windsor (New England, Independent) Share this | | Hansard source

Are you voting for it?

Photo of George ChristensenGeorge Christensen (Dawson, National Party) Share this | | Hansard source

The coalition is not opposing this bill, but I think the bill is very wrong.

Photo of Shayne NeumannShayne Neumann (Blair, Australian Labor Party) Share this | | Hansard source

You read the wrong speech!

Photo of Steve GeorganasSteve Georganas (Hindmarsh, Australian Labor Party) Share this | | Hansard source

Order! I ask members to cease interjecting.

6:12 pm

Photo of John CobbJohn Cobb (Calare, National Party, Shadow Minister for Agriculture and Food Security) Share this | | Hansard source

I rise to speak in the debate on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. As the House knows, the coalition is not opposing the Tobacco Plain Packaging Bill, but there are a few things I do need to talk about, and which I could not let go without mentioning in the House.

I probably have more right to speak on this than most people in the House. Until my eldest girl left school, which was quite a long time—well over 20 years—ago, I was, as my children used to say, a heavy user. When there were seven girls, my wife and I in the car they probably had reason to call themselves 'passive smokers' in a big way. They were all very relieved when I did give it up. I am not here to defend smoking. If I had not given up I have no doubt that I would be in a box by now. Smoking definitely contributed to the deaths of both my mother and one of my aunts in their 80s. However, they were both highly intelligent, very tough and very strong-willed women. So I guess that was their decision, and if they had decided to stop that would have been their decision too—as it was mine.

I must mention the fact that it would seem that, as previous speakers have said, there are legal issues surrounding this bill. If the government believes they can deal with those, that is their business. But, obviously, it would seem that there are legal issues.

There is no silver bullet to stop people smoking or to prevent them from doing so in the first place: that is totally correct. I would never stand in the way of any measure which prevented it or which encouraged or coerced a child into not doing it. I guess most of us started as kids in one way or another, but most of us did not go on with it. But I do have enormous issues with totally taking control of people's lives. The conundrum I have in this debate is that, if this is so bad that we are going to risk trademark rights, intellectual rights and treaty rights, and bring all these legal issues up—if smoking is so bad that we are willing to do that—why not just ban it?

If, however, it is not, why are we so concerned with taking away the right or the ability of an adult to make their own decisions?

I am rather stunned that we want to control people's lives to this extent. As I said, when it comes to helping parents and their children in this area—preventing children making bad decisions, denying children access to nicotine, helping parents—I am all for it; you will get no argument from me. But it seems to me that, if I remember correctly—and I probably would be a similar age to the member for New England—back when Whitlam was Prime Minister, he lowered the age of the right to vote and all those things from 21 to 18, so one assumes an 18-year-old is quite capable of making their own decisions. I just come back to that point. I do not want to speak for long about this, but when do we stop? At what point do we say, 'You are an adult; you make your decision'?

I very much wish my mother had not smoked and that it had not contributed to her death. But she was an intelligent woman and a very strong character, and it was her decision what she did, just as it was my decision what I did—it contributed to bad health for me and I had to give it up.

As I said earlier, I just wonder, if it is so bad, why it is not illegal to sell it, let alone to smoke it. Surely it is not just about money. I do not believe it is just about money, even with this government, who certainly have great need of that commodity. I should add at this point in time that they have nobody but themselves to blame. They have run short of it because they are borrowing $135 million or whatever a day to deal with their habit of borrowing money and spending it.

I have to say that, as adults, we make our own decisions. At 18 we are supposed to have the ability to make decisions; otherwise, why in the hell is 18 the age at which you reach seniority and have the rights every adult in the nation has? Yes, let's stop those who are under that age from smoking. For those over that age, either make it illegal or get over it.

6:17 pm

Photo of Tony WindsorTony Windsor (New England, Independent) Share this | | Hansard source

I would just like to make a few comments in relation to the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I personally congratulate the government for bringing forward the plain-packaging legislation. I identify with some of the concerns that have been raised in terms of the retailers, and I might get to that in a moment. But I think for people to back two horses on this piece of legislation is quite strange. I know we all have our constituencies to play to, but there is a very real health issue that we are trying to address here.

If I were God, I would ban cigarettes totally. Obviously that is not going to happen. I think most people recognise that that is not going to happen. In terms of the disease factors that are absolutely certain, it is the community that pays that bill. It is all very well for people to say that an adult should have the choice of making their own decisions, but, if we are chronic smokers—and I have been in my lifetime—or we are prone to obesity from overeating, we do not pay. The health system is not a user-pays system. It is not based on what you have done in your life. It is a socialist system that we all pay for. I think we are honour bound as representatives to, where we do see some form of health risk, try and do something about it.

I first smoked when I was at school. I was a bad boy—I am not a bad boy now, but I was a bad boy, I did smoke and I received quite severe punishment on occasions—

Photo of Mrs Bronwyn BishopMrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | | Hansard source

This is getting close to being too much information.

Photo of Tony WindsorTony Windsor (New England, Independent) Share this | | Hansard source

as the member for Mackellar probably did and probably still does! I was at school around the same time as the member for Calare—we are similar ages. I smoked at school and became addicted to cigarettes. At different times I attempted to give up cigarettes and found that very difficult to do. I visited a hypnotist in Manly, as many other people did, from time to time. On three occasions I was able to stop smoking, because I was advised that it was not good for one's health to smoke 40 cigarettes a day—Benson and Hedges they were, beautiful. One time I gave up for three years; another time for 18 months; another time for six months; and a fourth occasion for one day. In the late eighties, I attended a single face-to-face hypnotherapy session which was successful, and I have not had a cigarette since. I still carry a legacy of that addiction to this day. I was warned at the time by my medical practitioner that the pulse in one of my feet was not terribly good—and the possibility of my demise might interest some people in this chamber! However, that was 20-odd years ago, and I can assure everyone that my foot is in magnificent condition now. This shows that if you give up an addiction—whether it be cigarettes, food, alcohol or whatever—you can reverse some of the processes that you put in train during your addiction.

The other and major reason that I sought hypnotherapy on the last occasion was my kids. I heard some discussion before about what we are doing to educate kids. Those people who come from New South Wales would be well aware of the Life Education Australia band that travels around the schools with Harold the Giraffe—I think that is his name.

Photo of Michael McCormackMichael McCormack (Riverina, National Party) Share this | | Hansard source

Healthy Harold.

Photo of Tony WindsorTony Windsor (New England, Independent) Share this | | Hansard source

Healthy Harold—he bears a striking similarity to Andrew Southcott! My children are now aged 29 and 26 respectively. Healthy Harold visited the infants school of one of my children who became very concerned about the message that Healthy Harold had given about cigarettes. It was through badgering from my kids that I sought help once again through hypnotherapy, and to this day I have not had another cigarette. I think that if I had maintained the rate of cigarette intake that I was on in those days I would not be here to make this speech today. The point I am making is that reducing smoking rates is not just about people making decisions in adulthood but also about expenditure in the health system—and there is no doubt that smoking is not good for one's health. So I applaud the government for taking this step. It is not an easy step, but it should be taken.

There are some people in this building who argue that science is not absolute. For instance, some people have argued in the course of the climate change debate that the science is not absolute, and therefore we will not really know who was right and who was wrong until it happens or does not happen. The science is not absolute on smoking and lung cancer either; yet we believe, because the scientists tell us so, that there is a relationship between lung cancer and cigarettes. I have not gone out and proven whether there is a relationship between the two because I am not a medical practitioner or a scientist. There is no absolute proof that massive amounts of alcohol are not good for your liver; yet we believe, on the basis of scientific evidence, that this is the case. There is no absolute proof that being obese is not a healthy way to live—you have some stored bodyweight to go through a drought—but I think most people would understand that there are real issues, particularly in the Western world, with obesity and weight issues. We are, where we can, in our job as representatives of the people of Australia, attempting to encourage people into more healthy lifestyles. This legislation is about trying to remove some of the attraction to a product that is addictive, not to every personality but to many. I think we should applaud this legislation rather than get stuck on the relatively minor differences that we have found here between the opposition and the government.

I congratulate the Life Education Australia movement and am grateful to them for saving my life and sending a positive message to my children, none of whom smoke. I think education is part of the process, along with recognition of the science on cancer and so on, of making sure that the next generation does not make the same mistakes as the past generations did. Presenting warnings on cigarette packets and presenting them in plain packaging, as this legislation provides for, is a step in the right direction and I think we should endorse it.

Like many members in this House, I have had representations from retailers about the management, storage, display and identification of cigarettes. I will be listening very closely, because I know the opposition has an amendment before the parliament that we will be asked to vote on, to what the minister has to say about the amendment and the issues that the retailers, particularly smaller retailers, have. Cigarettes are not an illegal product, but we are sending a message through the plain packaging arrangements in an attempt to make smoking less attractive. Some of the laws that have been made in recent years on the display of cigarettes by retailers have been designed to send that message. However, under the changes proposed in this legislation, retailers have legitimate issues about their ability to identify cigarette brands in the storage area at the point of sale. There have been some indications from the minister, and as recently as last night we had some discussions about this question, but I would like her to clarify. I do understand that there are some state issues here with ticketing and display rules, but the amendment which the opposition is putting up and which we are going to be asked to vote on relates, as I understand it, to allowing retailers to have the two smallest outer surfaces of the cigarette carton exempted from sections 19 and 21 of the bill. As I understand it—and again I ask the minister to put this on the record to clarify the areas I have difficulties with—retailers, even with the legislation, will be able to put a sticker on the shelf so that they can identify the cigarette packet or the brand of the cigarette that is behind the barrier. There are different dispensers of cigarettes, some vertical and some horizontal. The retailers are suggesting that there may be issues around recognition of which packet they are trying to get from the shelf for the purchaser. I understand that the cigarette packets, even in plain packaging, will have the name of the brand on the bottom of the packet—correct me if I am wrong, Minister. I understand that some retailers have the problem that, if their dispenser holds the cigarette packet vertically, the railing on the dispenser may obscure the name of the brand so that the shop assistant cannot see which packet they are getting. I am led to believe that, in those circumstances, it would be legal for the retailer to mark the dispenser with the name of the brand so that the shop assistant can go to the dispenser and look along the row, not at the packet but at the name of the brand behind the barrier—Benson and Hedges, Marlborough or whatever the cigarette brand may be. I would like the minister, if she could, to go through some of that information because I will be listening closely to what the opposition are saying about their amendment as well.

As to whether stickers can be coloured, I understand that New South Wales point of sale regulations go into some detail about the requirements regarding colour, size et cetera for labelling and price tickets at the point of sale. I would like that clarified against the opposition's amendment, which goes to this issue of the storage and identification of a legal product in the shop area.

I am almost out of time, but I said at the start and I say again: I congratulate you, Minister, for doing this. I think it is an important step on our road to better health. But I would ask you to consider the real issues that some retailers have at point of sale. (Time expired)

6:33 pm

Photo of Mrs Bronwyn BishopMrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | | Hansard source

In rising to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011, I find it necessary to put on the record that, unlike the previous speaker, no, I did not smoke at school. Yes, I did smoke at university, but I gave it up fairly soon after becoming a mother of two daughters because I felt it was adverse to my health. Rather than suffering the trials and tribulations that the member for New England seems to have experienced, I simply said one day, 'Tomorrow I will no longer smoke,' and I have not from that day to this.

In supporting the bill, I agree with the sentiments that have been expressed about smoking being bad for health. I also agree with other sentiments that people have expressed about intervention in people's lives, but I want to make this point: public policy has meant that there has been a strong advertising campaign which has been successful in reducing the percentage of the population that smokes from what it used to be, somewhat over 50 per cent, to, if my memory serves me, somewhere around 16 per cent. That has been a highly successful campaign. Equally, with regard to drink driving, we have had a very successful public policy which has meant that the incidence of people being picked up on random breath tests is now one in 170.

But the real elephant in the room is that we do not seem to take seriously the need to prevent young people in particular taking up illicit drugs. I recall that when we were in government the former minister and current Manager of Opposition Business proposed a campaign against illicit drugs which was cancelled by this current health minister and has never seen the light of day. It will perhaps shock people when I tell them that statistics broadcast this morning show that, on random testing for illicit and illegal drugs, the incidence picked up is one in 70. It is high time that we take seriously the damage that is being done to young people in particular, who become easy prey to addiction to illegal and illicit drugs, and do something about it, instead of trying to pretend that they are merely 'recreational drugs'—a term which, in my view, should be struck from the lexicon. We should have a very strong public campaign against illicit drugs and hope it is as successful as those we have had against drink driving and smoking.

The second point I wish to speak on is the question as to why we are voting against the second bill. There has been much talk about the fact that the regulation-making power can overcome primary legislation. It is indeed a very serious matter. It is known as a Henry VIII clause. When I sat on the Senate Standing Committee on Regulations and Ordinances, we would frequently, if we thought there was a Henry VIII clause, send it back to the minister for redrafting for the simple reason that one of the first principles of that committee, which will examine this legislation, is that laws should be embraced in primary legislation and not in secondary legislation, otherwise known as subordinate legislation. I think it is interesting that in 1990 the Queensland Law Reform Commission issued a working paper under the chairmanship of Justice McPherson CBE, in which it notes that the Henry VIII clauses were so named after the monarch in disrespectful commemoration of his tendencies to absolutism. It also noted that on occasions the Supreme Court of Queensland had held that regulations were invalid as they were contrary to the intention of the legislature. But I do like the comments of Dr TP Fry contained in that report of the Queensland Law Reform Commission:

By thus upholding Parliamentary Statutes against Cabinet Regulations which sought to impose penalties which Cabinet was unable to induce Parliament to impose, the Supreme Court proved itself to be a bulwark to constitutional government.

I think that is an important message to heed. If the practice were to again be introduced, to again raise its ugly head—as it has seen flights from time to time in the history of parliaments; and I think this is the first time I have seen it in this parliament—whereby we had a practice to allow subordinate legislation to overturn a term contained in primary legislation, we would not be doing our job as legislators. It is a serious responsibility which we have and I believe we should uphold it. We should all, as legislators, oppose this legislation for this reason. The opposition will not support this legislation, because of the way in which it is so sloppily drafted, because it is, simply, a Henry VIII clause—a clause which is held in disrepute. I do not wish to see it in this parliament again.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

Before I give the call to the Hon. Minister for Health and Ageing, I would like to recognise present in the advisor's box Zac Power, who is a work experience student with the Parliamentary Secretary for Pacific Island Affairs. He is working with the parliamentary secretary this week and he is a student at Geelong High School. He is accompanied by Grant Dew, who is a member of the staff of the parliamentary secretary.

6:39 pm

Photo of Nicola RoxonNicola Roxon (Gellibrand, Australian Labor Party, Minister for Health and Ageing) Share this | | Hansard source

I am sure that, for such a young person doing work in an area interested in other countries, witnessing this world first will be a good experience.

I am pleased to be summing up on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. These are very important pieces of legislation. I think over 30 members of the House have spoken in this debate. I want to use this summing up to address a range of issues that have been raised by members in this House, and I hope that we will be able to vote on this important legislation tonight before the House adjourns.

It is of course a landmark day for tobacco control in Australia. Those members who have spoken in favour of this legislation have demonstrated that they are prepared to put the public health of their constituents absolutely at the top of the list of their priorities and certainly above the partisan party politics that we have seen from some speakers. They join with 260 professors of health and medicine, including four former Australians of the Year, who have written to all federal MPs seeking unanimous support for legislation to mandate plain packaging of tobacco products sold in Australia.

When I introduced these bills some six weeks ago, I detailed the toll of death and disease felt by our community each year from tobacco related diseases, and I will not repeat that in the House again today. But of course the purpose of this legislation is to reduce that toll that is felt within our community.

Tobacco is a product not like other products. When it is used as intended it kills people. The pack is not opened and then thrown away; it is carried around by the smoker, continually brought in and out of their pocket, put on their desk, held in the public arena and shown to friends—reinforcing the brand and personal identity and exposing the marketing to many social groups that it may not have been intended for and to children. Plain packaging joins the range of direct actions that we are taking to tackle tobacco, including the 25 per cent tobacco excise introduced in April 2010, record investments in anti-smoking social-marketing campaigns and legislation to prohibit the advertising of cigarette products on the internet.

The first piece of legislation will mandate that packaging can only appear in a standard, drab, dark brown colour and the only thing to distinguish one brand from another will be the brand and variant name in a standard colour, standard position and standard font size and style. Let me assure the member for New England that the name will appear on the top and bottom of the pack to accommodate concerns that have been raised by retailers who pack and sell their products stacked horizontally—and I will come to the other issue in terms of those who might stack vertically. That was a suggested change that came through our consultation process and one that we have taken on board.

I understand that the coalition have made clear that they will support this first piece of legislation that mandates plain packaging. However, they have flagged that they will move an amendment in the consideration in detail stage to allow branding to remain on cigarette cartons. We are very concerned that this will undermine the policy intent of the legislation. The coalition amendment creates a series of loopholes in the legislation that will enable tobacco companies to continue to brand and therefore market their products—the very thing we are trying to restrict. Though cartons are used in some cases to deliver wholesale product to retailers, they can also be sold at the retail level, particularly in duty-free settings but also in shops. There are also cases where individual packets can be bundled together—for example, two small packs of cigarettes bundled together in transparent wrapping—that would fit the definition of 'carton' in the opposition's amendment.

The opposition claim that the amendment is designed to help retailers in the handling of the product, but the legislation already does this because the legislation allows for the brand name and variant to appear prominently and legibly on the front and two small end surfaces of cartons for retail sale. The legislation does not affect wholesale packaging of tobacco products. Under the legislation, it is open to the industry to fully brand cartons delivered to retailers—with colours, logos et cetera—as long as the retailers are not on-selling the branded cartons to consumers. So, for the purposes of handling stock in the back of an office, in a warehouse and elsewhere—legitimate concerns that industry have—this legislation does not affect that.

The amendment, however, would open a loophole which would mean that products that are branded are called 'cartons' and are not only used for wholesale and would be made available to retailers. This amendment could also have the perverse impact that retailers stock and sell more cigarettes in bulk packaging such as cartons rather than in individual packets, potentially increasing the consumption of cigarettes. Clearly this would dramatically undermine the policy intent of the legislation. Let me make clear, if it has not been apparent, that the government will not be supporting that amendment. The opposition have already said that they will also oppose an important part of the legislation package—the second bill, the Trade Marks Amendment (Tobacco Plain Packaging) Bill—and now they are moving this amendment which will water down the legislation and potentially create a loophole for tobacco companies to continue to market their products.

In regard to that second piece of legislation, there has been a lot of debate in this House about the Trade Marks Amendment (Tobacco Plain Packaging) Bill. It will allow the government to act quickly to protect trademarks owners' rights if there are unintended consequences from the practical operations of the plain packaging legislation. Contrary to what the coalition have been spruiking today about the trademarks amendment bill, any regulation made under new section 231A will not have any effect on the operation of the Trade Marks Act in relation to goods or services that are not covered by the plain packaging bill. So suggestions that this can affect broader trademark legislation for products other than tobacco products is simply not correct. It does seem a little strange to us that the opposition is going to oppose this second bill which actually provides additional assurance to tobacco companies that, if someone were seeking to deregister a trademark for lack of use as a result of the plain packaging legislation, we would be able to take action which would protect the existence of that trademark.

The member for New England also raised some concerns about what sort of coloured stickers or promotional or marketing material will be able to be displayed at the point of sale, particularly where cigarettes might be sold and stacked vertically rather than horizontally. I need to advise the House and the member for New England that this is something that is covered by state legislation. I have been able to identify and provide that to the member, but am happy to also put on the record that the New South Wales fact sheets that cover the specific requirements for price tickets make it clear that tobacco retailers can use price tickets. They can use two colours, one for the ticket and one for the price. There are a number of restrictions on how they can be used, how distinctive they can or cannot be, and what sort of lighting and lettering can be used for them. This is consistent with legislation in each state and territory that restricts very tightly the sort of display that is allowed in any retail shop but makes sure that there is identification available for those who sell the product and need to be able to know which brand they are choosing. A number of members on this side of the House have met with retailers, and when they have said to them, 'If you stack your products alphabetically, won't that actually be quite easy for your sales assistants?' that has been received quite enthusiastically. People do have concerns, but we believe that the combined protections of this act and the restrictions will still allow retailers to identify where products are, which brand they are being asked for and which brand they are selling.

I said that today was a watershed day for tobacco control. It is also a day where we have seen the best and, unfortunately, the worst of this parliament. Listening to the speeches by the majority of members of the opposition, it is obvious that they are not voting for this legislation because they believe in doing everything possible to lower the smoking rate. It is clear from the comments made by many opposition members that they were shamed into this position but when they vote it is with every fibre of their being saying they should oppose it. I think it is not an exaggeration to say that today we scratched the skin of the opposition and the extreme right has come oozing out of the wound. The member who— (Quorum formed) I understand why the member for Dawson, who called attention to the state of the House, is sensitive about that, because he gave one of the most appalling speeches, where he told this parliament that smoking was fun. He, as a member of parliament and a leader in the community, was prepared to stand up here and say to his constituents that a product that is going to kill people who use it as intended is fun.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

I apologise to the minister, but would honourable members on my right please resume their seats or leave the chamber. I cannot hear the minister, and if I cannot hear the minister I suspect others cannot.

Photo of Nicola RoxonNicola Roxon (Gellibrand, Australian Labor Party, Minister for Health and Ageing) Share this | | Hansard source

The member for Dawson I think may have been bettered by the member for Mitchell who, in his speech, made it absolutely clear that he does not support this legislation, and told us that 'life kills'—that we might as well not worry about doing anything on smoking because life kills anyway. What a silly statement to make in this House. It is something that the Liberal Party and the Liberal leadership should be embarrassed about. He also made the claim, which was made by many others opposite, that we enjoyed the revenue that big tobacco raised for the government. Let us correct the record here: the revenue that is raised by the excise on tobacco is five or six times less than the amount that we spend in dealing with the social, health and economic costs of smoking. This financial year it is projected that the revenue raised from tobacco excise will be $5.8 billion. The latest report indicates that the estimated health and social costs of tobacco in Australia a number of years ago was $31.5 billion annually. Therefore, the costs to our system are far greater than any benefit that the coalition says the government or taxpayers receive from this product.

The party room compromise to support plain packaging was obviously that it would oppose the trademarks amendment bill, and we are very sure that the coalition is just playing politics on this issue. In response to those opposite who claim that the trademarks amendment bill would avoid parliamentary scrutiny, I remind them that any regulations made under this act would be able to be disallowed by the parliament and they should stop playing politics on this. I also remind the House that the Howard government introduced a similar regulation making power in 2000 to implement the obligations of the Madrid protocol. The enactment of these bills will give effect to Australia's commitment under the WHO Framework Convention on Tobacco Control. The fact that we will be the first country to introduce these measures is very exciting and I am aware that a number of countries around the globe are supportive of our legislation.

One of the shadow ministers opposite raised the issue of track and trace. There are not any international agreed standards for that yet, but we are happy to continue to work on those and to do ongoing work with those opposite. The passing of this legislation will be another nail in the coffin of tobacco marketing and I commend the legislation to the House. (Time expired)

Question agreed to.

Bill read a second time.