Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Hansard source

I can just see you, Minister Evans, in olive green! The Australian Olive Association was outraged, as was reported by the Sydney Morning Herald online, and said the move would 'denigrate their brand and cost them money'. The report said:

Association chief executive Lisa Rowntree has sent a cease-and-desist letter to Health Minister Nicola Roxon, asking her to stop using the term ''olive green'' and instead adopt the term ''drab green''.

''Our members are having enough problems countering the flood of imported olive products being dumped in Australia via the large supermarket chains without the government promoting to the community that there is something negative about olive green,'' the letter says.

Ms Roxon reportedly said:

''I'd be happy to offer an (olive) branch to the association and support their bid for greater publicity.''

In her speech to the plenary session of the United Nations High-Level Meeting on Non-Communicable Diseases in New York recently, Minister Roxon extended that olive branch. She told the meeting:

From next year, all tobacco products are sold in Australia will be required to have the same packaging in an unattractive drab dark brown colour.

Here's hoping Cadburys are not offended!

The coalition has a proven track record with regard to tobacco control and reducing the rates of smoking in Australia. It was Robert Menzies who first introduced a voluntary tobacco advertising code for television in 1966. It was the Fraser Liberal government in 1976 that first implemented a ban on the advertising of tobacco products on TV and radio. Dr Wooldridge, in June 1997, announced what at the time was the biggest ever national advertising campaign against smoking, with a federal government spend of $7 million over two years. The Howard government reformed cigarette taxation from a weight basis to a per stick excise in 1999. It was the Howard government and Tony Abbott, as health minister, who introduced the graphic health warnings on tobacco products in 2006. It was the coalition which first proposed an increase in the tobacco excise in 2009, a measure later adopted by the government. The coalition presided over the biggest decline in smoking rates whilst in government, with the prevalence of smoking declining from 21.8 per cent in 1998 to 16.6 per cent of Australians over the age of 14 by 2007. This was amongst the lowest rates of smoking in the world. The decline in smoking rates in Australia—a fall of 40 per cent for men and 44 per cent for women between 1989 and 2007—was amongst the biggest in the OECD. The fall in smoking rates amongst women was the biggest in the OECD. So any suggestion that the coalition is soft on tobacco companies is just plain nonsense.

There is no silver bullet. There must be a comprehensive tobacco control strategy, and no one measure will work by itself. There have been concerns raised by stakeholders regarding the legality of this proposal, under three different avenues. The first is that it would constitute acquisition of property on other than just terms according to section 51 of the Australian Constitution and that it may violate article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, the TRIPS agreement, which came into effect on 1 January 1995. This is a minimum standards agreement which allows members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the agreement within their own legal system and practice.

The second is as follows. The TRIPS agreement is an agreement made under the World Trade Organisation and is a multilateral agreement on intellectual property. Article 20 says:

The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements …

There is, however, a health exception to the TRIPS agreement, and this is where the legal contention lies—that this legislation may violate the 1993 Australia-Hong Kong investment treaty, and Philip Morris may sue the Commonwealth over plain packaging under the expropriation and investor state dispute settlement provisions of the treaty. This was explained by Deborah Gleeson and David Legge of the School of Public Health and Human Biosciences at La Trobe University. As they wrote in the Conversation on 7 July 2011:

Expropriation, in ordinary usage, means dispossessing property owners of their property. But it has a much broader meaning under trade law.

The government and the minister have on many occasions assured the opposition that the legal advice surrounding their plain packaging proposal is robust and that they are on strong legal ground. The coalition has accepted the government's assurance regarding this on face value. This is because the government have refused to provide a copy of their legal advice to the opposition. Despite this, proposed section 15 of the Tobacco Plain Packaging Bill provides 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. This means that they must have some doubts as to the strength of their legal advice.

There is also a small retailer impact. The government's consultation with small business retailers over this issue has been lacking. Small retailers are concerned at the way the government's plain packaging proposal will impact their stock management and at their point of sale, with the difficulties in differentiating between packets that look almost identical.

There are also issues with counterfeit, illicit tobacco. While Australia is generally seen by its peers as a 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—

Debate interrupted.