Senate debates

Thursday, 10 November 2011


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

Debate resumed on the motion:

That this bill be now read a second time.

3:44 pm

Photo of Matt ThistlethwaiteMatt Thistlethwaite (NSW, Australian Labor Party) Share this | | Hansard source

I am proud to be a member of a government that is taking genuine, world-leading action on preventative health. I have spoken many times in this chamber about the burden that preventable disease is having on our nation's health system and, indeed, on our budget. Smoking, of course, is a big contributor to that burden. This legislation over time will provide an effective deterrent to the uptake and to the continuation of smoking in our society and should therefore reduce the burden of preventable disease on our nation and on our budget.

Every year around 15,000 Australians die of tobacco related causes. It represents one of the world's leading preventable causes of death and disease in Australia. Smoking causes 84 per cent of new lung cancers in men and 77 per cent in women. When tobacco related sickness and disability are taken into account it causes more disease and injury in Australia than any other single risk factor. If that is not enough to convince people, and sadly it is not enough for some, the social and economic costs of tobacco are around $31.5 billion a year.

In the last 10 years Australia has done much to reduce the use of tobacco in our society. We have seen social marketing campaigns, the restriction of tobacco advertising and promotion, mandated health warnings, product information on tobacco packaging and stronger enforcement of legislation prohibiting the sale of tobacco products to children. But there is more to be done. The rates of smoking in our society warrant that. Simply put, this bill will reduce the number of Aussies suffering from tobacco related illnesses.

We have heard some shallow arguments from an industry fighting to maximise its profits and, unfortunately, we have heard some hollow arguments from those opposite particularly in relation to the consequential trademarks amendment bill which is an effective part of this suite of reforms. Labor remains the only major party in our nation to refuse donations from tobacco companies. In the true spirit of the way in which we view tobacco production, this legislation will ensure that we reduce the incidence within our society.

About 15 per cent of Aussies in 2010 over the age of 14 continue to maintain the habit of smoking. Today almost three million Australians smoke including almost half of our Aboriginal and Torres Strait Islander population over the age of 15 years. In 2008, as a part of the National Healthcare Agreement, the Council of Australian Governments agreed to a target of reducing the national adult smoking rate to 10 per cent and halving the Aboriginal and Torres Strait Islander smoking rate by 2018. To achieve those targets, of course, we need to do more for the health of the Australian people.

As a result of a raft of marketing control initiatives introduced in previous years, the packaging of tobacco has become big tobacco's primary marketing tool. As one Philip Morris executive said:

Our final communication vehicle with our smoker is the pack itself. In the absence of any other marketing messages, our packaging ... is the sole communicator of our brand essence. Put another way—when you don't have anything else—our packaging is our marketing.

Colours, images, logos and fonts on cigarette packets are utilised to their full potential by the tobacco industry to entice more adults and more young people to purchase their products. There is also evidence that the tobacco industry uses packaging to influence sensory and health perceptions of tobacco products. For instance, the use of words such as 'light', 'mild' and 'low-tar' give a false impression that the product is less damaging to the smoker's health and less addictive than the full flavour brands. Under the World Health Organisation Framework Convention on Tobacco Control, which is legally binding in 172 ratifying or accessioned countries, parties are obliged to ensure that:

… tobacco product packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions, including any term, descriptor, trademark, figurative or any other sign that directly or indirectly creates the false impression that a particular tobacco product is less harmful than other tobacco products.

Further, parties are required to ban or restrict, as far as their constitutions allow, all forms of tobacco advertising, promotion and sponsorship. Australia is not alone in our interest in plain-packaging legislation. Several countries, including trading partners such as New Zealand, Canada and the United Kingdom, have also considered or are currently considering the introduction of plain packaging for tobacco products. Our leadership on this very important issue has received widespread support including from representatives in the United States, the European Union, India, Norway, Uruguay and, of course, the World Health Organisation. But, despite the compelling case and overwhelming support for plain packaging, the government's efforts have not been completely without opposition. Big tobacco has challenged the plain-packaging legislation, and they have been flexing their muscle through a vast advertising campaign aimed at bullying the government and the public into submission.

I am proud to say that the government's commitment to this important legislation remains firm. Plain packaging, in my view, is an absolute no-brainer. We are talking about 15,000 Australians every year that die through the use of this product. That is 15,000 Australians who do not get to see their son or daughter have their next birthday or do not get to see their next grandchild born. All MPs have received letters from 260 professors of health and medicine urging them to support this legislation. Studies have revealed that plain and generic packaging of cigarettes makes the product less attractive and appealing. The removal of imagery associated with cigarettes is particularly effective on young people, and the plain packaging also serves to highlight health warnings, which become more noticeable and more memorable.

A significant number of public health experts have expressed unequivocal support for the proposal. For example, the Australian Medical Association, the Royal Australasian College of Surgeons, the Public Health Association of Australia, the Cancer Council, the National Heart Foundation of Australia and the National Stroke Foundation have each welcomed the measure on the grounds that it will help to reduce smoking in Australia, it will help save lives and it will improve the health of many thousands of Australians.

In its submission to the government's public consultation on plain packaging of tobacco products, the World Health Organisation Secretariat welcomed the proposal, stating:

WHO is of the view that ... implementing the proposed legislation aiming to prevent tobacco advertising and/or promotion on tobacco product packaging will achieve its stated goals of: reducing the attractiveness and appeal of tobacco products to consumers, particularly young people; increasing the noticeability and effectiveness of mandated health warnings; and reducing the ability of the tobacco product packaging to mislead consumers about the harms of smoking.

WHO strongly supports the Australian Government's proposal on plain packaging and agrees with the conclusion that through the achievement of the aforementioned aims in the long term, as part of a comprehensive suite of tobacco control measures, this legislation will contribute to curbing the initiation of tobacco use, reducing tobacco consumption, and decreasing incidences of relapse in those who cease to consume tobacco ... In view of the scientific and legal bases for the interventions articulated in the exposure draft of Australia's Tobacco Plain Packaging Bill 2011, the WHO Secretariat strongly supports the proposed legislation.

The House of Representatives Standing Committee on Health and Ageing recently completed an inquiry into the bill. In particular the committee looked at evidence relating to the bill's health implications and served to drive home the point that tobacco packaging plays a large role in marketing the product. The committee concluded:

It is abundantly clear that different packages are designed to appeal to different socioeconomic groups ... it is also clear that packaging has been used to detract from the impact of graphic health warnings, and that plain packaging will increase the impact of these warnings.

The committee also found that existing plain packaging evidence was adequate to support the measure and its likely effectiveness. The committee considered that criticisms of the evidence were insubstantial and, on the whole, superficial. Notably, the fact that plain packaging has not been introduced in other countries should not function as a deterrent to the passage of the legislation in Australia. Rather, the committee found that it demonstrates Australia's willingness to take the lead in tobacco control, a role that Australia has taken in the past in terms of preventative health.

Research has shown that, over time, many of the tobacco control measures introduced in Australia have been effective in reducing the smoking rate, and there is no reason to believe that it will not be the same in this case. The committee was strongly supportive of the proposed tobacco plain-packaging legislation and recommended that the bill be passed.

As I have said, 15,000 Australians die each year from tobacco related illnesses. It represents one of the leading preventable causes of death and disease in Australia. Smoking causes 84 per cent of new lung cancers in men, and 77 per cent in women. The social and economic costs of tobacco use are around $31.5 billion a year. And the experts say plain packaging will make a real difference, particularly to the next generation of Australians who we need to protect from this addictive and damaging product.

We do not support the death of Australians, and we will not waiver in our determination to ensure that our next generation lives in a safer, more healthy environment.    It is as simple as that. This is a wonderful, preventative health initiative. It is a genuine world-leading reform and I am proud to commend this bill to the Senate.

3:57 pm

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

I would like to add some words to this debate on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011.

I am very concerned about the removal of the property rights for one reason only—and that is because the Australian government may get sued. It is no secret that members of the National Party and members of the coalition believe in property rights. I refer to the time of—I was quoting this the other day—the infamous Kimberley Maxwell Yeadon, the minister in the New South Wales Carr government. I believe Senator Wong was one of his staffers.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | | Hansard source


Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

Yes, it was interesting reading the other day. When I was in the sheep yards or the shearing shed I would often laugh at John Laws, who would make it a common habit to get stuck into the 'jumped-up shop steward' as he used to refer to him. Mr Yeadon brought in a policy called SEPP 46 followed by the Native Vegetation Conservation Act. That removed farmers' rights to carry out activities on their land. We now have a case, for example, in New England, where a farmer pushed over a tree.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | | Hansard source

We are talking about tobacco.

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

I am talking about property rights, Senator Wrong, if I am going to take the interjection, but I need to talk to the Deputy President and focus on him, as the rules allow. I will give you an example, Mr Deputy President. A farmer pushed over a tree to rip out blackberries—a noxious weed—and get rid of rabbits. He is now facing a $50,000 fine because he pushed over that tree to do away with vermin that cause soil erosion and to remove the blackberries. That is an example of how property rights were removed.

Now, let's get onto property rights and this bill. Like it or not, it is legal to sell cigarettes in Australia and these companies have a property right, a trademark. I find it most alarming that Philip Morris Asia has lodged a claim for compensation of some $67.5 billion. I do not know where the government will get that money if it is not successful. Tobacco companies are wealthy, which means they can employ good solicitors, the best barristers and the best senior counsel. Minister Roxon claims the government has strong legal advice and is on strong legal ground on this issue, but let's look at the government's record on the Malaysia solution. The High Court ruled against the government's legal advice. My concern is that if the government makes a mess of these property rights, these trademarks, it will cost Australian taxpayers billions and billions. So let's hope the government does have it right, because if it has it wrong and the court rules in favour of the tobacco companies for having their trademarks, their property rights, removed—and I know that some in this chamber do not care about property rights, as I just showed with the history lesson of Kim Yeadon in New South Wales—it is going to be at huge cost. If we get sued and the government loses the case—and of course there will be challenges and it will probably end up in the High Court—how many billions is it going to cost the Australian taxpayer? So I do hope this time the government's legal advice is strong and does hold water, because it certainly did not for the Malaysia solution for asylum seekers, as the High Court proved. We all know, in this chamber and around Australia, about the government's legal advice on that.

Just today a tobacco industry spokesman, Scott McIntyre, predicted that the government is going to have to spend millions of dollars of taxpayers' money fighting challenges in court followed by a potentially billions of dollars in compensation to the tobacco industry. That is my concern. He said:

We've invested billions of dollars into these brands. Unfortunately it looks like the government is pushing us down that path.

So already the tobacco industry are taking up the legal challenge; there is no question about that. As I said, they are wealthy—that is, I assume they are wealthy. I do not know if they are public companies; I do not have shares in them. I know that when I took on a challenge in court it was very difficult because I did not have much money. In the end, I had to come to a settlement because I had run out of money to pay the legal team. The point is that the tobacco companies will not have that problem. They will be able to finance, as I said, the best solicitors, the best barristers and the best senior counsel to take on this case.

Senator Bilyk may shake her head. Is she going to shake her head when she comes in here in two years time to say, 'We've just had to fork out for a $67 billion bill because of a court hearing'? She will not be grinning about it then, Mr Acting Deputy President. Those opposite will be saying: 'Where are we going to get the money from? Of course! The Australian taxpayers will pay it. We will sell off some assets. We will add it onto the debt of $215 billion.' As I said, I hope the government have it right because, if you have it wrong, removing those property rights—

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

So the rich can do whatever they want, the big companies can do whatever they want, and don't worry about the public health issue?

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party) Share this | | Hansard source

Senator Bilyk, order!

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

Thank you, Mr Acting Deputy President. You know interjections are unruly. I know you yourself would never consider doing that and I thank you for bringing Senator Bilyk to order on that issue.

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party) Share this | | Hansard source

Senator Williams, order!

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

It does get hard at times, doesn't it? I can recall Senator Forshaw in the chair. He was very strict but he was a very different Senator Forshaw when he was sitting over on the other side of the chamber.

You know what I believe about property rights. You may dislike the product—ban it if you wish; make it illegal—but the tobacco companies have a legal product as it stands and they have a property right, just like the farmers in the example I gave earlier. It might even have been Senator Wong who gave that advice to then Minister Kim Yeadon in the New South Wales parliament. Who knows? It is something we will never find out. But this is the issue: the cost and what will come out of it.

The government brought in the alcopops tax in an effort to raise the price of mixed drinks in cans—and I must admit I have shared the odd can of Bundy and cola in my life, in moderation of course. What do the young ones do then? They turn to buying a bottle of rum and a bottle of Coke and mixing it themselves, which is a very dangerous situation. I do hope that this does reduce smoking but I also hope that it does not cost the nation billions and billions of dollars. And I do hope the government have their legal advice correct.

4:05 pm

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

How would Australians react—and I specifically ask Senator Williams this question, through you, Mr Acting Deputy President—if each year 24 fully occupied Boeing 747s crashed, killing every passenger on board? That is the scale of the tragedy attributed to tobacco smoking in Australia: 15,000 deaths per year. And that description does not account for the months and years of suffering experienced by the many people affected by smoking related diseases.

Let us not forget that the health and social costs to Australian taxpayers have been estimated to be $31.5 billion, which is barely covered by the $5.8 billion raised in revenue from tobacco excise. That is money that we could be putting into our health system to save lives from diseases that are unpreventable, rather than the preventable diseases caused by cigarette smoking.

If we had a problem suddenly arise that started to cost our nation tens of billions of dollars annually and resulted in the death of thousands of Australians, I do not think we would regard it as a mere concern. Just imagine if terrorism or natural disasters were responsible for the same number of deaths. I am not sure even the word 'tragedy' would be adequate to describe it. I think we would call it a national emergency. a strong government response would be expected and would occur. But cigarette smoking has become so pervasive and so socially acceptable that many still seem to just regard it as a normal part of life, despite the destruction it causes.

Tobacco reforms over a number of years, coupled with other anti-smoking programs, including advertising and support for quitting, have, thankfully, been effective. The Australian Institute of Health and Welfare publishes a survey on a regular basis to gain information about use of tobacco, alcohol and other drugs. That survey, over a number of years, has shown a steady and consistent decrease in tobacco use from 29.1 per cent of people aged 14 years and older in 1993 to 15.1 per cent in 2010. The 2010 survey shows that, at 15.9 per cent, Tasmania, my home state, still has a higher rate of smoking than any other state except Queensland. However, the positive news for Tasmania is that between 2007 and 2010 there has been a statistically significant decrease in the proportion of daily smokers, down from 22.6 to 15.9 per cent.

This is very positive news and I would like to congratulate the Tasmanian government for its tobacco reforms, including the introduction of smoke-free areas. Smoke-free areas were established in Tasmania under changes to the Public Health Act 1997 and include all indoor areas at public places and workplaces, including offices, shopping centres, factories, hospitals, bars and nightclubs, gaming areas, indoor areas at restaurants, corridors, toilets, function rooms and movie theatres; areas within three metres of a doorway to a public building; areas within 10 metres of air intake for ventilation equipment servicing a public building; work vehicles when another person is present; inside a vehicle if a child is inside the vehicle; any other area not being on private premises designated by the occupier to be smoke free; 50 per cent of outdoor dining areas; and reserved seating areas of outdoor sporting or cultural venues.

I am particularly grateful for the inclusion of vehicles if a child is inside the vehicle. As a former childcare worker, a mother, a politician and co-convenor of Parliamentarians Against Child Abuse and Neglect, it concerns me greatly that any parent or adult would expose their child to cigarette smoke. While adults can to some degree actively avoid cigarette smoke and the harm caused by it, children have little or no choice. That harm is greatly increased by smoking inside a car, which is an enclosed space, often with no ventilation.

In terms of child protection, there is a statistic in Tasmania that concerns me very greatly, and that is our rates of smoking among pregnant women. In 2009, 23.9 per cent of Tasmanian women smoked tobacco during their pregnancy. Smoking prevalence among young mothers was highest, with 49 per cent of pregnant women under the age of 20 and 43.5 per cent of 20- to 24-year-olds continuing to smoke through pregnancy. Tasmania continues to have the highest proportion of women of any state or territory who smoked during their pregnancy. Unfortunately, many expectant mothers honestly believe that smoking during pregnancy will not harm their baby. However, smoking during pregnancy is regarded as one of the key preventable causes of low birth weight babies. Low birth weight babies, of course, are more likely to die in their first year of life and are more susceptible to chronic illnesses later in life, such as heart and kidney diseases, and diabetes. As with children in cars, they have no way to defend themselves against their mothers' behaviour, and I see this also as an important child protection issue.

Of course, the declining rate of smoking nationally proves that measures to limit the attractiveness of tobacco smoking can be effective. The Council of Australian Governments set a goal under the National Healthcare Agreement of reducing the national smoking rate to 10 per cent of the population by 2018 and halving the Aboriginal and Torres Strait Islander smoking rate. I am pleased and proud to be part of a government that is working cooperatively with the states and territories to deliver positive outcomes in reducing the rates of tobacco use throughout Australia.

This brings me to the bills currently before the Senate. The Tobacco Plain Packaging Bill 2011 will make it an offence to sell, supply, purchase, package or manufacture tobacco products for retail sale unless those products comply with plain-packaging requirements. The bill will enable the development of regulations to specify plain-packaging requirements and conditions for the appearance of tobacco products. Under plain-packaging requirements, brands and products will only be distinguished by the brand and product name, printed in a standard colour, in a standard position on the package and in a standard font, size and style. Individuals can be fined up to $220,000 for a fault based criminal offence or $6,600 for a strict liability criminal offence. A corporation may be fined up to $1.1 million for a fault based criminal offence or $33,000 for a strict liability criminal offence. The maximum civil penalty that may be awarded is the same as for a fault based offence, but no conviction would be recorded for a breach of civil penalty provisions. The bill does not limit the operation of state or territory laws relating to packaging and appearance of tobacco products. However, where there is any conflict of state or territory laws with the plain-packaging requirements, the bill will prevail.

Plain packaging on tobacco products achieves outcomes that we believe will be effective in combating tobacco use. Attractive packaging is one of the devices used by tobacco companies to attract people to smoking, so, primarily, plain packaging reduces the attractiveness and appeal of tobacco products to consumers, especially young people. The colour of the packaging has been chosen based on research to have the lowest appeal to smokers. Plain packaging also increases the impact of the graphic health warnings now mandated on tobacco products. It is very difficult to ignore a picture such as a graphic health warning if it is the most prominent feature on the package.

Coupled with this bill is the Trade Marks Amendment (Tobacco Plain Packaging) Bill, which is being introduced so that the government can, if necessary, quickly remedy any interaction between the Tobacco Plain Packaging Bill and the Trade Marks Act 1995 that cannot be dealt with under the Tobacco Plain Packaging Bill. It amends the Trade Marks Act to allow regulations to be made in relation to the operation of the Tobacco Plain Packaging Bill and to make regulations that are inconsistent with the Trade Marks Act.

There is plenty of evidence to support the effectiveness of plain packaging. In 1995, an expert panel provided the Canadian department of health a comprehensive review on the likely effects of plain packaging. At that time, four studies had been conducted into the effectiveness of plain packaging of tobacco products. They were a 1987 study by Trachtenberg published in Forbes magazine, various studies conducted in New Zealand by Beede and Lawson into brand image attraction for tobacco products and the impact of plain packaging on the perception of health warnings, a 1992 Melbourne study by the Centre for Behavioural Research in Cancer Control on the reaction of adolescents to cigarette packs modified to increase the extent and impact of health warnings, and a 1993 University of Toronto study by the Centre for Health Promotion examining the effects of plain packaging on the image of tobacco products among youth.

The expert panel found that all four studies produced evidence to support the hypothesis that plain packaging made cigarettes less attractive and appealing. No study providing contrary evidence is known to exist. The expert panel found that there are three primary benefits of plain packaging, which I will outline. Research shows that brand imagery can create false perceptions that certain brands are less harmful than others. Based on their colour and branding, adult smokers have rated particular brands as less harmful and easier to quit. For example, Marlboro's packs with a gold logo are regarded by smokers as less harmful than packs with a red logo. Researchers have concluded that removing colours from packs and terms such as 'gold', 'silver' or 'smooth' significantly reduces these false beliefs.

An Australian study published in 2008 involving more than 800 adult smokers found that the appeal of tobacco products was reduced by progressively reducing the amount of pack-branding design information. The plainest packs were not only seen as less attractive but were also considered lower quality, less satisfying and significantly less stylish or sociable. A similarly designed study in Canada reached the same conclusions. Research on plain packaging shows that reduced branding not only undermines the positive images in brands but also increases the negative aspects. This is why plain packaging can help to enhance health warnings. Brand imagery distracts from health warnings and therefore reduces their effectiveness.

People have an enhanced ability to recall health warnings on plain packs. They are seen as more serious than the warnings on branded packs, and smokers exposed to large, picture based warnings are significantly more likely to report thinking about the risks of smoking or to stop having a cigarette or think about quitting. Larger health warnings are more memorable, noticeable and more likely to elicit cessation related attitudes and behaviours.

However, an Australian study funded by the National Health and Medical Research Council and presented to the 2011 Society for Research on Tobacco and Nicotine found that plain packaging was actually more effective than increasing the size of health warnings. There is plenty of research evidence to support this measure, but anyone who doubts the effectiveness of plain packaging need only look at the response of the tobacco companies. If big tobacco did not believe that this measure would impact on their bottom line, why are they intent on campaigning so fervently against it? It is obvious that the likes of British American Tobacco and Philip Morris are concerned about their profits when it comes to their response to plain packaging.

The Gillard government's plain-packaging reforms are not a measure in their own right. Rather, they are part of a package of reforms that this government announced in April 2010 to reduce the rates of tobacco smoking in Australia. We increased the excise on tobacco products by 25 per cent, a measure designed to provide a financial disincentive for smokers to continue smoking. A 2009 submission by Cancer Council Australia to Australia's Future Tax System Review stated that a 21 per cent increase in excise would prompt 130,000 adults to quit smoking and prevent 35,500 children from taking up smoking. We have also introduced and brought into law legislation to prohibit the advertising of tobacco products on the internet and have made record investments in antismoking social marketing campaigns.

One of the tough questions that often arise in public policy is when to regulate and by what degree. Regulating people's behaviour is a difficult balancing act between the freedom of the individual to make their own choices and the freedom of others not to be adversely affected by those choices. Some tobacco smokers would argue that their smoking is a personal choice, but I disagree. Smoking affects everyone. It affects the health and environment of nonsmokers, who through no choice of their own are forced to live in an environment polluted with cigarette smoke. It affects friends and family who have to go through the grief of watching a loved one suffer and possibly die because they have contracted a smoking related illness. And it affects every taxpayer in Australia who ends up footing the bill for the billions of dollars in health costs and lost productivity that are caused by smoking. So, the more people we can get to give up smoking, the more every Australian benefits, including nonsmokers.

The Tobacco Plain Packaging Bill and the Trade Marks Amendment (Tobacco Plain Packaging) Bill are an important part of the reforms that this government is putting forward to reduce smoking rates in Australia. I welcome the federal opposition's support for this bill. Although it took them some time to get to it, it is the right decision and it is in the interests of Australia's public health. I am looking forward to the day when the opposition follow Labor's lead in other matters regarding public health and refuse to accept political donations from tobacco companies.

While the Liberal and National parties are still accepting donations from tobacco companies, they must be compromised. I accept that any individual or company has a right to participate in the political process. However, the coalition parties should exercise their good judgment and not accept donations from companies that produce a product which causes such harm when used as intended. If they want to take money from an industry which is killing 15,000 Australians a year through its products then I think they need to take a good hard look at themselves. It gives me great pride to be a member of a party that does not accept donations from tobacco companies.

Finally, I will conclude by saying that it gives me great pride to be part of a Gillard Labor government that are serious about tackling this huge public health issue that is being faced both here in Australia and across the world. With our plain-packaging legislation, Australia is leading the world, and I congratulate the Minister for Health and Ageing, Nicola Roxon, for the hard work that she has put into making sure that cigarette smoking is moving ever closer to becoming a thing of the past. I commend the bills to the Senate.

4:21 pm

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | | Hansard source

The Senate is considering in this second reading debate two bills which the government has introduced in what we are told is an effort to reduce the incidence of smoking in Australia. The first bill is the Tobacco Plain Packaging Bill 2011 and the second is the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. So that there can be no question about my position on the issue of smoking, I state for the record that, based on considerable empirical research, I believe that smoking is a health hazard and that smokers who indulge the habit for a period of time are likely to suffer significant health problems, which may result in their early death. Equally, I believe that there is considerable empirical research to show that the passive intake of tobacco smoke by those who come into contact with it is likely to have adverse health implications.

It is clear that the ill effects from smoking and passive smoking harm many of our citizens and impose a massive financial burden on the Australian health system. It is unacceptable to stand by and do nothing when up to 15,000 Australians die of tobacco related causes each year. I therefore support action which will effectively reduce the incidence of smoking in Australia in an effort to improve the health of our citizens and reduce the burden on our health system, which is estimated to be up to $31½ billion each year.

Given the government's stated purpose in relation to these two bills, the question that needs to be asked by the Senate is: does the proposed legislation in its present form achieve the government's stated purpose? Clearly, based on the evidence of numerous published reports and having regard to the submissions that have been made to the various parliamentary committees, the answer to this question is: most unlikely.

Given that the opposition and the government share a common belief that smoking does indeed harm one's health and can indeed cause death and given that the government and the opposition share a common desire to reduce the incidence of smoking in Australia, you would have expected the government to have adopted a bipartisan approach to achieving what is a common policy objective. However, clearly the Minister for Health and Ageing decided that she was the sole expert in the field of smoking and wanted to use the introduction of these bills to try to make out that the only political party in Australia that was interested in reducing the incidence of smoking in Australia was the Australian Labor Party.

What did the minister for health do? Australians were subjected to the minister embarking on a massive campaign to try to denigrate the opposition, notwithstanding the fact that the opposition had a remarkably positive and constructive record of reducing the numbers of smokers in Australia when we were in government. The minister got so carried away with her vilification of the opposition that she suggested that the opposition's position on the bills was influenced by political donations that it may have received at some stage from tobacco companies. The minister, in attacking the opposition, was so adamant in this position—that accepting donations or other support from tobacco companies was so wrong in principle and in practice—that she trumpeted from the rooftops that the Australian Labor Party's policy was not to accept donations from tobacco companies and that Labor maintained the holier-than-thou position that it would return any such donations to tobacco companies, no doubt with a curt note saying, 'The Labor Party is not for sale.'

The minister made it very clear, in her protestations, that Labor was clean and would never knowingly take money from tobacco companies. We have heard speeches from those on that side of the chamber saying that the coalition parties are the only parties in Australia that accept donations from tobacco companies. That is just plain wrong. Not only is it just plain wrong; it is offensive to this side of the chamber. Just as the Prime Minister said, the day before the election, 'There will be no carbon tax under a government I lead,' the minister pretended to the Australian public that the notion that the tobacco companies could give money to the Labor Party was an offensive one. That was just plain wrong. You can only imagine what the Australian people thought about the credibility of the minister in question when they woke up one morning to find that, notwithstanding her protestations that Labor would never contemplate accepting money from tobacco companies, the minister herself had actually written to tobacco companies soliciting financial support from the tobacco companies to assist her re-election campaign. Let us just say that again for the record. The minister herself had written to tobacco companies and asked them for money, solicited a donation from them, to fund her own election campaign—complete, total and utter Labor Party hypocrisy.

Worse than that, when the minister's hypocrisy was exposed by the media, the Australian published a story that showed that, despite the so-called ban on Labor accepting tobacco money, lo and behold, there were letters circulating that showed that the Australian Labor Party were still asking tobacco companies for political donations. Let us have a look at what the Australian newspaper ran on 18 June 2011:

THE Labor Party has continued to seek political donations of up to $102,000 from a major tobacco company, as recently as this week, despite a ban.

The embarrassing revelation comes in the same week federal Health Minister Nicola Roxon was forced to apologise for sending a fundraising request to the same company in 2005, a year after Labor banned tobacco company donations.

…   …   …

Most of the six newly revealed letters were sent by Sports Minister Mark Arbib when he was secretary of the NSW ALP. They invited a senior tobacco executive to spend up to $15,000 on tickets to fundraising functions.

Honourable Senators:

Honourable senators interjecting

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party) Share this | | Hansard source

Senator Cash, I draw your attention to the matter at hand.

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | | Hansard source

Thank you, Mr Acting Deputy President, but I was not engaging in taking up the interjections or should I say the bleating from the sheep on the other side—or, as they have been called, the 'zombies' on the other side. We all know who called his own colleagues zombies, don't we.

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

The quota girls.

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | | Hansard source

I love that: the quota girls as well; that is exactly right. The senators on the other side call out and interject saying that the Labor Party does not accept political donations and never did, but that is just plain wrong. It was Minister Roxon herself who had to apologise for misleading the Australian public on the basis that she wrote to big tobacco companies and asked them for money to assist in her re-election campaign.

Getting back to the Australian newspaper, what else did the article say, bearing in mind that it was as recent as 18 June 2011? It said:

Current NSW secretary Sam Dastyari wrote to the executive at Philip Morris this month offering a $5000 place at a Business Dialogue and Country Business Forum.

It would seem that the Labor Party's holier-than-thou attitude was nothing more and nothing less than typical Labor Party spin. What was the other spin the Labor Party tried to give to the Australian public? Minister Roxon also embarked upon a false campaign trying to denigrate the Liberal Party as not wanting to reduce the incidence of smoking. Like the minister's false statements about Labor not seeking money from tobacco companies, she was caught out this time for not properly checking the Liberal Party record.

As far back as 1966, under the government led by Sir Robert Menzies, the Liberal Party took positive action to reduce smoking by introducing a voluntary tobacco advertising code for television. Then in 1976 we continued our efforts to reduce the incidence of smoking in Australia when, under former Liberal Prime Minister Malcolm Fraser, we instituted a ban on the advertising of tobacco products on television and radio—again, a policy of a former Liberal government. In 1997, Dr Michael Wooldridge, the Liberal Minister for Health and Family Services, was responsible for cabinet agreeing to a massive national advertising campaign against smoking, which lasted two years and cost around $7 million.

In December 2003, the Howard government signed the WTO Framework Convention on Tobacco Control, which was ratified in October 2004. In 2006, then Minister for Health and Ageing Tony Abbott introduced legislation to require graphic warning measures covering about 30 per cent of the front of cigarette packets. Because of the positive action taken over successive decades by former Liberal governments, in particular the action taken under the former Howard government, Australia saw a significant decline in 2007 when smoking rates dropped from 21.8 per cent to 16.6 per cent. The reduction of smoking rates in Australia between 1989 and 2007 was 40 per cent for men and 44 per cent for women and represented one of the biggest falls in OECD countries. So it is purely false piety and hypocrisy for Labor to denigrate Liberal Party achievements in reducing the incidence of smoking in Australia, given that in 2007, when we lost office, Australia had the third lowest prevalence of smoking in the world, behind Sweden and Canada.

The legislation in its present form raises a number of significant issues on the question of trademark law and intellectual property rights. The government and the minister have on many occasions assured the opposition that its legal advice surrounding their plain-packaging proposal is robust, saying that they are 'on strong legal ground'. In agreeing that we will not be opposing this legislation in this place, the coalition—the opposition—has accepted the government's assurances regarding its legal advice at face value. However, despite accepting those assurances, we note that when you go to the text of the bill there are a number of alarm bells. For example, despite the government's assurances, proposed section 15 of the Tobacco Plain Packaging Bill provides that the 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 only conclusion that one can draw from the inclusion of this clause in the legislation is that the government itself does have some doubts about the strength and veracity of its legal advice. But, as I said, the government has given assurances to the coalition that its legal advice is robust and that it is 'on strong legal ground' and the coalition has accepted those assurances coming from the Labor Party. However, given the tenor of a number of the submissions on the potential infringement of intellectual property rights and given that the second bill is supposedly designed to overcome any infringement of trademark laws, the coalition is not necessarily convinced that the government has overcome all of the potential issues relating to intellectual property.

The other area of concern to me is the issue of unintended consequences that may actually flow from this bill. I have read the submissions made to the relevant parliamentary committees and I am somewhat alarmed at some of the dire predictions of what some believe will occur once tobacco products have to be marketed in plain and generic packaging. Based on the substance of a number of the submissions, it does seem very possible that there will be a substantial increase in the illicit trade of counterfeited tobacco products. To date the government has not advised the Senate on the specific action it proposes to take to overcome the increase in the illicit trade of counterfeited tobacco products and on what the cost impacts are in terms of detection activities. And, of course, there is the value of the revenue forgone, meaning the taxes forgone, due to the illicit tobacco trade. A number of submissions to the relevant parliamentary committees have raised issues relating to the impact of the legislation on retailers and, although I am supportive of appropriate measures being taken to reduce smoking, which clearly flow through to a reduction in the amount of tobacco products sold, it would be remiss of me as a Liberal not to acknowledge the adverse impact that will be borne by some retailers of tobacco products.

There are clearly without a doubt many unanswered questions in the minds of people when it comes to addressing the issue of tobacco products in our society. I have made my position very clear in relation to support for measures to reduce the incidence of smoking in Australia. The issue that I have with the legislation that is before the Senate is the unproven mythology being implemented by the government and the yet-to-be-answered questions on how successful the government's experiment will actually be. The coalition agrees that the use of tobacco each year kills and harms thousands of Australians and that it is sensible public policy to take action to reduce rates of smoking. The coalition has expressed its support for the policy objective of plain packaging of tobacco products. However, support for the government's objectives should not be an excuse for it to override principles of good legislative practice. That is why, whilst supporting the principal bill, the coalition will not be supporting the trademarks amendment bill, as we do not believe that this bill is necessary for the government to continue to implement its plain-packaging agenda.

If the minister had taken the time to draft the Tobacco Plain Packaging Bill properly, the trademarks amendment bill would not be needed. The coalition will be opposing this bill as we do not believe it is necessary and because the coalition do not agree with giving the minister the power to override the Trade Marks Act through regulations, which is precisely what this amendment bill does in clause 231A. This is a clause that allows for regulations made by the minister under an act of parliament to override the act itself. This is exceptionally uncommon. It goes against the basic legal principle that an act trumps regulations, it is not good legislative practice and it would not have been necessary had the government taken the time to properly draft the principal bill.

4:42 pm

Photo of Lisa SinghLisa Singh (Tasmania, Australian Labor Party) Share this | | Hansard source

I rise to speak, proudly so, in support of the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Almost everyone either knows someone that has contracted a tobacco related disease or has lost someone from this deadly, addictive product. For me, it was my grandfather, Les Southern. Like many of his generation, he took up smoking during the war not knowing its lethal consequences, simply seeing it as a moment of relief in the hard days as a 17-year-old serviceman. He continued smoking when he returned home, until it became such a reflex and a routine that it was ingrained into his personality. There were no barriers to smoking in those days, neither in his office nor visiting businesses and homes on his beat as a police officer, and it was a time when one would not be bombarded with advertising for tobacco smoking at every turn. I remember many a day visiting Les in his home, sitting in the kitchen under a cloud of smoke, as he told me stories about his times as a young soldier or in the police force. I did not see smoking then as wrong or right. I just saw it as my Poppy who, like many of his time, smoked.

But in the late 1990s he started to become sick: coughing, wheezing and having trouble breathing. As he became more ill, it seemed to become harder for him to give up the habit he had carried with him nearly his whole life. Yet he was an active man who loved to dance, go to social events and have a good long chat. Eventually, he was put on an oxygen machine for severe emphysema that restricted his activities—and, yes, his smoking. Doctors told him he needed to stop. It was the hardest thing to do.

I was 28 when he passed away. I was fortunate to have had 28 fantastic years with Les. But I wish he could have seen me enter parliament, and I know that he would have loved to have been here. After his passing, my mum and I cleaned his house. As we took the pictures and photos down around his house, the outlines of the frames left a distinct colour and shape against the nicotine stained walls. As it had done in life, the smoke had surrounded and crowded out signs of life. Losing my grandfather is just one example of the 15,000 Australian lives that are lost from tobacco related disease each year. According to the 2004 National Drug Strategy, tobacco is also the cause of over 750 hospital bed days, with eight per cent of these occupied by children under the age of 15. An Australian Institute of Health and Welfare report shows that a total of 4,715 men and 2,911 women died from lung cancer in 2007, making the disease the leading cause of cancer deaths for both sexes. The burden of this addictive substance is obvious and it is also heartbreaking. Too many people are losing loved ones, and these people are dying from what is too often a preventable disease.

What did big tobacco have to say about this? Big tobacco say plain packaging will not work. But if big tobacco believe it will not work why are they fighting so hard? Not only are they fighting; they are screaming, taking desperate measures and turning to threats of legal action in a desperate attempt to deter the Gillard Labor government from acting.

Research into the effectiveness of plain packaging has found a number of benefits, and I would like to take a moment to share some of those findings. Tobacco brand imagery distracts from the health warnings. Studies have shown participants have a greater ability to recall health warnings on plain packs, as opposed to those displaying brand imagery and flashy logos. Studies have also shown that unregulated package colouring and imagery contribute to a misperception that some brands are safer than others. The colour of the pack has been associated with lower risk. Perhaps surprisingly, cigarettes in red packets are considered less dangerous than those in black packets, for example. Cigarettes described with terms such as 'smooth', 'gold' or 'silver' have also been believed by smokers to have a lower health impact when compared to other tobacco products.

Perhaps most telling is a study of 800 Australian adult smokers, with results showing that the plainest cigarette packs were seen as less attractive and smokers of these packs were seen as significantly less stylish and less sociable. The cigarettes in these packs were also thought to be less satisfying and of a lower quality. Plain packs resulted in these negative perceptions—they were less attractive, less stylish and of a lower quality and smokers of them less sociable. It is exactly these negative perceptions that we want people to associate with smoking, especially our youngest generation, those who may be considering taking up smoking and who I certainly hope never will. Increasing evidence from Australia and right around the world shows that plain packaging reduces the attractiveness of cigarettes among young people, and this will mean that fewer young people take up the habit. This is exactly what we want this legislation to achieve. We must remember that tobacco companies constantly need to recruit new customers because they keep killing their current ones.

The evidence says plain packaging will work, and this is exactly why the Gillard Labor government is acting. It is why organisations such as Cancer Council Australia, the Heart Foundation, Action on Smoking and Health, the Public Health Association of Australia and many others have all worked so hard for so long and are throwing their support behind the Gillard Labor government and the federal Minister for Health and Ageing, Nicola Roxon, with regard to this legislation. In August this year 260 professors of health and medicine, including four Australians of the Year, banded together to write a letter of support to MPs. I can think of few issues that have commanded such attention and such support.

Big tobacco themselves know it will work. Professor Mike Daube, President of the Public Health Association of Australia, said on the release of the exposure bill earlier this year:

The tobacco industry has responded to this move more ferociously to anything in tobacco control in 20 years and I think that sends out a signal, if the tobacco industry is so worried about it, then we've got to be on the right track.

They are running scared at the thought of losing their astronomical profits. Big tobacco—and by this I mean companies such as British American Tobacco Australia, Philip Morris and Imperial Tobacco Australia—collaborated to fund a mass media countercampaign. Their sole aim, of course, is to stop this legislation. So underhand were their actions that the major corporations associated with this alliance were not initially aware of the involvement of these tobacco companies. These corporations promptly withdrew their membership of the alliance as soon as they did become aware.

Arguments against plain-packaging legislation are light. They include a simple 'it won't work', but we know that tobacco companies would not be screaming so loudly unless they knew, as we do, that it will. Since the idea of plain packaging was floated as an option by the Labor government, tobacco companies have been turning to desperate measures to stop this legislation. Why? Because they know this legislation will reduce their profits, as fewer people will take up smoking. This legislation will have the biggest impact on those who do not yet smoke. Thanks to these bills, current nonsmokers will not be wooed by fancy logos, by split packs, by retro tins. This product will never say anything other than the reality. And what is that reality? It is that cigarettes kill you.

The world is watching as we take this brave step against big multinationals. We have not been intimidated. We have not been frightened off. Australia's leadership with these bills will undoubtedly result in similar legislation being adopted in other countries. History will show it was the Gillard Labor government that led the way. History will show that Australia was not afraid to take on big tobacco and win.

A cigarette pack is one of the final avenues for advertising that tobacco companies have. It is somewhat of a compact billboard, one would say. We know that cigarette packs are used as 'badge' products. They allow a smoker to promote certain characteristics, just as a certain brand of fashion accessory always does. A cigarette pack becomes a status symbol, as it promotes the characteristics associated with a particular brand.

Tobacco companies know the power of this marketing on their customer base and they have been getting increasingly sneaky when it comes to attracting people to their brand. In February 2006, just a month prior to picture based warnings being introduced on all tobacco products, one company began selling their products in retro style tins. These tins had health warning stickers that were able to be easily peeled off. And, just as the tobacco company knew they would be, they were very popular with young people, with new young smokers. This is both underhand and sneaky. Plain packaging will eliminate this ability and there will no longer be an avenue to implement underhand marketing strategies via packs. All packs, regardless of their brand, will look the same. There will be no trademarks, no logos and no pretty colours. Only prescribed information, such as a brand name, will be allowed, in a set font, style and colour. Most importantly, graphic health warnings will dominate. There will be no ignoring the fact that tobacco is a product that kills.

Unfortunately, while those on the other side of this chamber say they support—or supposedly support or halfway-pregnant support—this legislation, they have continued to employ stalling tactics and block it, and the Labor government has been forced to reconsider implementation time frames for this legislation. This is quite unbelievable when those opposite have full knowledge of the fact that such companies are killing their voters each year with their products. But perhaps they are playing these games because they enjoy the odd political donation from big tobacco companies.

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

You obviously weren't listening to Senator Cash.

Photo of Lisa SinghLisa Singh (Tasmania, Australian Labor Party) Share this | | Hansard source

I was listening to Senator Cash very closely. Big tobacco are very desperate to stop plain packaging and are resorting to every trick in the book, and the Liberal Party seem to be on their side—given Senator Cash's nonsensical diatribe just earlier. Unlike the Liberal Party, which continue to receive such donations from cigarette companies, the government will not be influenced by big tobacco. Unlike the coalition, the Gillard Labor government is serious about tobacco reform and about reducing the burden of smoking-related disease in our country. Plain packaging is one of many reforms that will ultimately drive down smoking rates.

While these rates are dropping, they still remain unacceptably high in Australia. The government raised the tax on cigarettes by 25 per cent last year because we know there is a clear correlation between a price increase and the cessation of smoking—particularly among low-socioeconomic groups, which we know carry the highest burden when it comes to smoking-related illness. A price increase not only helps drive people towards a quit attempt but also stops people from taking up the habit in the first place.

The Gillard Labor government has also spent $27.8 million on advertising on antismoking campaigns. Why? Because we know that sustained mass media campaigns, specifically TV advertising, are an effective way to decrease smoking rates. In December last year, the Labor government made the decision to place nicotine replacement therapy on the Pharmaceutical Benefits Scheme, and it has been available since February this year. Where NRT once cost up to $140, those with a concession card can now access a four-week course for approximately $5.40—and $33 for those without a concession card. This was a move welcomed by many, as it broke down the barrier for those who could not previously afford NRT. For many, it was cheaper to continue smoking when compared to purchasing NRT.

In September this year, federal health minister Nicola Roxon announced that the Australian government would commit an additional $700,000 to the World Health Organisation to increase the global fight against tobacco smoking. More than 170 countries have ratified the World Health Organisation Framework Convention on Tobacco Control, which includes a comprehensive road map for the implementation of effective tobacco control policies—one of which is plain packaging. As Ms Roxon said, tobacco companies are fighting for their profits, but we, the Labor government, are fighting for people's lives.

Unfortunately, in my home state of Tasmania, we continue to buck the national trend with higher than average smoking rates. In 1995, Tasmania's smoking rate was 1.5 per cent higher than the national average and today it is more than four per cent higher. Just last week, Tasmania was named as the state with the worst lung cancer rates for women in the nation and the state with the second-highest rate of mortality in both men and women who develop the disease.

This is unacceptable, and that is why the Tasmanian Labor government was the first state to ban smoking in bars and clubs, in January 2006, and smoking in cars carrying children, in 2008. The Tasmanian Labor government is introducing reforms that will see a dramatic increase in the number of places smoking is banned, including in all outdoor dining areas and pedestrian malls. These laws are planned to commence in March, 2012. These regulations will help reduce the proportion of daily smokers in Tasmania and have done so already—from 22.6 per cent in 2007 to 15.9 per cent in 2010. But, of course, we still have a long way to go, with four in every 25 Tasmanians still choosing to smoke.

In closing, I would like to acknowledge the tireless efforts of some of those who have been involved with this legislation—those who have thrown their support behind the Gillard Labor government. While I cannot name them all—there has been such support and momentum behind this legislation—there are some key players. Cancer Council Australia, the National Heart Foundation of Australia, Action on Smoking and Health Australia, the Public Health Association of Australia and many more have long advocated for plain packaging and have had the courage of their convictions, fronting more than one government inquiry to represent the arguments for plain packaging. All the efforts on this issue are to be applauded.

There is no quick fix when it comes to smoking addiction. There is no overnight solution—just as there is no quick fix for those addicted to the substance. We know that it can take many attempts to successfully quit, but each attempt is a step closer, just like each measure introduced by this government: a 25 per cent increase in tobacco tax, placing nicotine replacement therapy on the PBS, increasing the spend on antismoking marketing and now plain packaging. It is all a step in the right direction and eventually we will win this fight. I commend these bills to the Senate.

4:59 pm

Photo of Bridget McKenzieBridget McKenzie (Victoria, National Party) Share this | | Hansard source

I rise to speak to the Tobacco Plain Packaging Bill 2011 and wish to highlight some of the complexities surrounding this bill and its intentions. But, firstly, I would like it on the record that the tragedy of death by smoking is felt on both sides of this parliament. The complexities I mentioned earlier go to human behaviour and concepts around personal responsibility. Firstly, let me place on the record my perspective of human behaviour as it pertains to smoking. It actually needs to be cool to smoke for people to take it up. In our culture, in our society, smoking is a whole lot less cool now than it was when I took it up at 19—and our national smoking figures actually back up that fact. What we are debating today is a bill that gives a great headline, but Australia is once again out there on its own in terms of legislative firsts. Like other legislation introduced by the government and voted on this week, the result of this legislation will be simply an increased cost and action burden for small business without a whole lot of action on real smoking rates. Let's face it: it is very difficult for young people to be lured by the bright colours and engaging packaging that currently sits behind roller doors, under lock and key, in milk bars across my state of Victoria. Whilst advertising of this product has become more sophisticated and targeted, in Victoria there is no avenue for the message—highly targeted and sophisticated as it is—to get out and let the people of Victoria know that smoking apparently, according to the companies that make the cigarettes, is an attractive proposition. So, in Victoria, we will be unable to see the plain brown packaging. But never mind—the headlines were great: 'Government won't be bullied by tobacco'; 'Labor beats big, bad tobacco'. Maybe the headlines should have said: 'Labor once again implements policy that burdens small business'.

I am a former health educator, and the number of adults and young people who smoke is certainly disappointing to me. Of course, it is a reality: everybody knows that smoking kills you. The Centre for Behavioural Research in Cancer released a study in 2008 that showed that 16.5 per cent of Victorian adults aged 18 and over smoked regularly—not happy; not good enough from my perspective. The smoking rate for men was 18½ per cent, which was higher than for women at 14 per cent—again, too many people are smoking, and this is a big drain on our health and the economic fabric of our society. In 2010, the Cancer Council of Victoria spent $27 million on research, education, prevention and support initiatives around tobacco control. Figures from Victoria indicate that almost $8 million has been spent on tobacco control activities in that state. Of the $8 million, over $4 million was spent by VicHealth, an internationally recognised preventative health body and a statutory body of the Victorian parliament, around tobacco control activities. Currently VicHealth has placed tobacco control as one of its highest priorities. We have initiated several successful strategies within my home state as a result of VicHealth's advocacy which have been really successful in lowering the smoking rate.

School based smoking intervention programs have had only limited, if any, effect on smoking reduction. I have been part of delivering those programs in classrooms right across the state. These programs are generally viewed as dated and too narrow a form of health education without the backing of strong community-based programs. There has been a significant effort to reduce smoking rates in this country, and it has worked. We lead the world in smoking reduction strategy. The Victorian government introduced the Tobacco Act in 1987 and, since then, has constantly rolled out reforms and supporting regulations to reduce smoking rates. I understand that there needs to be an essential and comprehensive tobacco control strategy in place, but introducing legislation that simply adds costs and complexity to small business rather than complementing what Victoria has contributed towards tobacco control is not the solution to combat such a complex issue. While the intention of the Tobacco Plain Packaging Bill, to reduce smoking rates, is sound—put up your hand if you do not support a reduction in smoking rates—the broader implications of passing the bill mean that restrictions to small businesses and retailers, in terms of stock management and pricing methods, are significant.

I wish to bring to light the issues borne by retail and small business. They have advocated the issues to the Gillard government to no effect. My electorate office in Bendigo, Victoria, has received hundreds of phone calls and letters from small business owners opposing the plain packaging bill—not big tobacco industries but little corner stores and milk bars, where cigarettes are already under the table in Victoria. Owners of small stores in Dunkley, Ferny Creek and Ringwood have all indicated that there would be many unintended consequences of the legislation. As an additional burden, any business would need to spend more time and money in relation to the plain packaging bill to ensure they were complying with the law. Frustrated small business under a Gillard government—what a surprise!

On this note, I turn to concepts around individual responsibility. The nanny state is alive and well. As a current smoker let me know recently, it would not matter if you wrapped the cigarettes in barbed wire—the addiction to nicotine is so complete that they would gladly reach in to get it. Let's remember that this is a legal substance. The best way to ensure that we reduce smoking rates would be to ban the substance that kills people. Smoking, since cigarettes are a legal product in a liberal democracy, is an individual choice and the decision to smoke is an individual decision. It is ignorant of the government's to justify that one rationale for plain packaging is to reduce the ability of the tobacco product and its package to mislead consumers about the harms of smoking. If I went out on the main street here or in any town across Australia, I would struggle to find anybody who does not know that smoking is bad for you. The government is misguided if it thinks that people smoke because they are not aware of the harmful effects. Social learning theory suggests that people smoke as a result of social and psychological influences, which usually start in an experimentation phase when people are in their teens. Smoking then becomes a physiological condition with nicotine as the addictive product.

Children and teenagers generally learn by example from others, and, when they see their peers or parents smoke, they emulate this behaviour. It is scientifically recognised that influences for people taking up smoking are peers, parents and economic status, not the colour of the packaging. There are several methodological issues around the research, particularly David Hammond's work, that I have concerns with. Smoking becomes associated with other social activities such as having a coffee or going to the pub.

Let's talk about the research. The virtues of science have been lauded in this chamber all week. The study that this bill is based on has serious flaws. The research used by the government to formulate the rationale that trademark imagery and brand appeal are directly related to people's decision to take up smoking—not whether they decide to take up smoking but whether they prefer colour packaging over khaki—just does not hold water. The article by Hammond et al 2009, 'Cigarette pack design and perceptions of risk among UK adults and youth', outlines the findings, and the research and was published in the European Journal of Public Health. The results of the study showed that plain packs significantly reduced false beliefs about the health risk and ease of quitting and were rated as significantly less attractive and appealing to young people for picking up smoking. What a surprise—olive green is less attractive than blue, red or silver! No news there. 'Do teens prefer khaki or shiny, bright, primary colours?' What a great piece of research on which to base the legislation!

Effective public policy should be based on evidence-based best practice, not one-off studies. In fact, large independent studies have failed to identify a significant link between tobacco advertising and teenage smoking rates. We want to see surveys and statistical analysis from Australia which take into account our framework for housing cigarettes—you cannot see the packages in my home state—as well as our already stringent laws at a state level, our comprehensive tobacco education programs and the other cultural factors. In Australia right now, smoking is not cool. Plucking results and figures from other countries and pinning them onto Australians means the Gillard government is again dodging its responsibility to see the real problems and concerns of Australia at large.

I understand the goodwill of the bill, but I would hate it to be an opportunity for the government to distract itself—or, rather, the public—from other more pressing political issues. I would hate to think that this bill is a populist attempt to create a veneer of action by the Gillard government. The coalition has always been a strong advocate of public health advancement. We laud the good intentions of the bill. But, having said that, let me ask fellow senators: is this another example of the Labor government producing a quick headline—an irrational fix—to a very complex and deep-rooted societal problem? I will not be opposing the bill.

5:09 pm

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

I rise to address the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. As I said in my maiden speech in this place, I am a conservative, and that means that I believe in individual responsibility as opposed to the deadening hand of government control over individuals. However, there are times when the national interest or the greater public good means that there is a role for government to intervene.

As we look back in recent history and see how well Australia has survived the global financial crisis, we do not have to look back too long to see that the structures that the previous Treasurer, Mr Peter Costello, put in place—with his financial sector reforms to the RBA and the Securities and Investments Commission, the Prudential Regulation Authority and the ACCC—were some of the things that helped us to survive that crisis. So there are times when the government should intervene for the greater public good, and I believe that this is one of them.

Some 15,500 deaths each year in Australia, and some 55,500 admissions—and that is in New South Wales alone—are caused by tobacco-related illnesses. In 2004-05, the cost to the Australian society was $31½ billion, which is a huge cost to the society. There are many areas where that money could be put to better use—not to mention the cost to families, individuals and relationships which is due to the suffering caused by of tobacco related cancers, illness and death. On a more global scale, the World Health Organisation has put out a number of fact sheets, the most recent of which, updated in July this year, estimates that currently tobacco kills about half of its users on a worldwide basis—that is some six million people each year, including some 600,000 people dying of tobacco related disease who are not even smokers but people who have contracted cancer or associated illness just from being in the presence of smokers.

Australia, thankfully, has a good record on the world scene of leading incentives to decrease the rate of smoking. If we go back to 1945, some 72 per cent of men in Australia smoked; by 2007, only 18 per cent smoked. In 1945, some 26 per cent of women smoked; interestingly, the number of female smokers peaked in 1976, when some 33 per cent of women smoked, but by 2007 that had decreased to 15 per cent. Disturbingly, youth figures are still high: some 19 per cent on average still smoke. Even worse, of our Indigenous population, some 50 per cent, on average, still smoke—51 per cent men and 49 per cent women. So, whilst we have come a long way, in reducing smoking rates among both a demographic within our population who are easily influenced—that is, our young people—and a large proportion of our Indigenous population, we still have a long way to travel.

I can certainly look back and see the change, and I am very thankful for it. As I was looking at some of the notes and background information for this speech I recalled my time as a trainee pilot with the Defence Force, stuck in the CT-4A aircraft, which was a very small plastic bubble—we used to call it the plastic parrot—flying in the days when people could still smoke while flying an aircraft. I recall once not actually being able to see out the front of the cockpit due to the amount of smoke from my instructor who was smoking there. Thankfully, by the time I left active flying—in fact, even just earlier this year as an active reserve pilot—I found that smoking had well and truly been banned in ADF aircraft. In fact, they do not even make the aircraft which the Australian Defence Force purchases with ashtrays anymore. So, personally, I welcome the advances and the changes in attitude.

The other thing I welcome about this whole debate is that, by and large through the history of Australia, smoking reduction has been a very bipartisan effort. Both sides of politics have made a real attempt to influence the behaviours of Australians to decrease the rates of smoking because of that greater public good. I have been disturbed by some of the comments that almost accuse the coalition of having no interest in this, so I just want to put on the record some of the contributions that the coalition has made over many years, often with ALP support. There have also been many times when the ALP has initiated things, and the coalition has supported them. Right back in 1966, it was Sir Robert Menzies who brought in the first voluntary tobacco advertising code for television. Former Prime Minister Malcolm Fraser banned the advertising of tobacco products on TV and radio in 1976. Michael Wooldridge, the Minister for Health and Family Services in 1997, launched what at the time was the largest ever national advertising campaign against smoking, with a spend of some $7 million over two years. The current Leader of the Opposition, Tony Abbott, when he was Minister for Health and Ageing was in 2006 the first person to introduce the graphic health warnings on tobacco products. In opposition, it was the coalition who first proposed an increase in the tobacco excise in May 2009—a measure that was later adopted by the government. So I think the coalition can hold its head up as having a good track record of working constructively with the ALP on anti-smoking measures in the past, and I certainly encourage members opposite to continue that approach and make sure that we work for the best interest of the Australian people rather than try to make smoking reduction into a party political action. It is far too important for that.

The question, then, is: will it work? The fact is that we already have those graphic warnings, and some of the feedback and studies on them appear to indicate that they work. The World Health Organisation has done a number of studies not only in Western countries but also in places such as Brazil and Thailand and in other countries as well, such as Canada and Singapore. They have found that putting the graphic warnings on cigarette packets has a statistically significant impact. It is not a silver bullet, though. There are many other factors: socioeconomic factors, peer influence and age—young people are very susceptible to risk taking and doing things that are slightly rebellious, and smoking is one of these things, and there are also people who have just become addicted to the habit and find it really hard to give up. I graduated from military college with a peer who did a double major. He was looking at cancers caused by smoking, yet he was a chain-smoker. So understanding the damage caused by smoking is not necessarily incentive enough for some people to give up the habit. For some people, it has to be recognised that it is a difficult habit to give up, and I applaud the governments of both persuasions for their efforts over the years to provide support to people through education and other measures to help them break that addictive habit.

Plain packaging is probably going to be most effective on young people, who are perhaps more influenced by the attractive nature of some packaging. If you look through some of the papers that have been produced by people such as the Cancer Council of Australia, the World Health Organisation and others, there is ample evidence that tobacco companies have spent considerable time, money and effort designing packaging to attract people in certain demographics to use particular products. Some of the ways they have used internal packaging and the ability to have sub-packages, expanding the amount of advertising space, indicates that they are aware that money spent on that additional advertising—that visual appeal—is going to increase the uptake of their product, if not smoking in general.

So, even if it is not the silver bullet, this plain-packaging legislation is one more measure—and again, in the overwhelming interest of the public good, I support anything that will provide some assistance in reducing smoking rates. One area I am concerned about, though, is process. I am not raising this as a criticism of the government's bill but as a general comment about consultation with stakeholders. I have had many emails from small business owners who are concerned about the impact on their operations in the shop and their ability to control stock. I note the fact that it was only after the coalition really pushed the fact that small business had not been consulted that allowances were made for the concerns of small business owners. I note that the coalition in the other place did put forward an amendment to allow the use of a tobacco company trademark on the two smallest outer surfaces of a cigarette carton to try to alleviate some of the concerns of small business. I regret the fact that that amendment was not passed, not because it is a sop to the companies but because it supported small business, who at the end of the day are the people who generate a significant number of the employment opportunities in Australia.

One of the other areas I wish to touch on is that of unintended consequences. The Australian Customs and Border Protection Service annual report shows that Australia over the last number of years has seized a significant amount of illegal tobacco: some 743 tonnes and 217 million cigarettes. In 2010 the National drug strategy household survey report claimed that illicit tobacco in Australia is used by some 4.6 per cent of smokers. There are other figures around which show that there has been an alarming increase in the amount of illegal tobacco smoked. There has been some contention that that is a position put forward by the tobacco companies to try to get government intervention in order to make sure that they are not losing margin. Some of those figures show that the amount of illegal tobacco smoked was around 6.4 per cent in 2007, 12.3 per cent in 2009 and 15.9 per cent in 2010, equating in this report to some $1.1 billion in lost revenue. To this debate—and, as far as I am concerned, my support for the intent of reducing smoking—the revenue is a secondary issue. The primary issue here is the health outcomes for our community. If we do see an increase in the illegal trade, it may well undermine this and many others anti-smoking initiatives that both sides of politics have been supporting.

One of the reasons that the health outcomes may be worse is shown in a number of reports about the ways that illegal tobacco is marketed. The tobacco is often slightly damp to increase the weight and increase the returns to the people selling it. That dampness turns the tobacco mouldy. It is then bleached with chlorine to treat the mould, and the chlorine then turns to chlorine gas when it is inhaled. So, if people do start turning to illicit tobacco because it is cheaper, easier to procure or for some reason becomes more attractive—again, the young people have that risk-taking approach—then the health outcomes could be worsened. In parallel to these plain packaging initiatives, I would certainly encourage the government to continue adequately funding and encouraging the activities of the Customs and Border Protection Service. I know the ATO are very concerned about making sure the government does not lose revenue, but there should be a whole-of-government approach taken to make sure that the illegal tobacco industry is really clamped down on so that it does not become an unintended consequence of the plain packaging measures.

One of the concerns the coalition has raised around this legislation is that we have not had access to the government's legal advice. The government assure us that they are on very strong ground in relation to trademarks. The concern that has been raised by the coalition and other players is whether this legislation's treatment of intellectual property and trademarks will set a precedent that will affect other areas. We can only take the government on their word that they are on strong ground. We certainly trust so, because the tobacco companies have indicated that they will be prosecuting these anti-smoking measures in the courts, and there is potential for the taxpayer to be exposed to a large cost to defend that action. We would certainly hope that that would not be money spent in vain, that the government's position would indeed be validated. As I say, we have not seen the advice, so we cannot comment on that. But we will give the government the benefit of the doubt and trust that that is the case.

In summary my position is—as evidenced by many people we know in our community—that tobacco does kill, and the greater public good is served by government intervention to make sure that users are informed, that those who are easily influenced are dissuaded and that the taxpayer's exposure to the consequences of the use of tobacco is minimised. I will not be opposing this bill.

5:24 pm

Photo of Cory BernardiCory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | | Hansard source

I start my contribution to this debate by making a confession. I know we are not in the hallowed halls of St Francis Xavier Cathedral or somewhere like that, but I want to put on the record that I, for a substantial part of my adult life, was hopelessly addicted to cigarettes.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | | Hansard source

And a rower!

Photo of Cory BernardiCory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | | Hansard source

And being a rower, Senator Wong—that is exactly right. The lure of tobacco was such that every morning I would wake up and crave a Marlboro Red and that I would continue to smoke Marlboro Reds throughout the whole day until I went to bed—and on occasions I would wake up in the middle of the night and do it. I am not particularly proud of it, because it is a terrible habit. I make no bones about the fact that smoking is addictive and it is dangerous; yet it can seduce even people who have a commitment to health and fitness.

One of the great challenges is how to break this nexus of people picking up the habit—the addiction—of smoking. I fully support measures which do that by targeting children. We should protect our children. Senator Singh mentioned before that we have banned smoking in cars where children are present. I think that is an excellent initiative. I do not support smoking in public buildings. As a former publican, I believe that individual businesses should have the right to make a choice as to whether they want to allow smoking on their premises or not, but I accept that that is not the way the world is moving.

I declare this because I suffered a number of ill-effects from smoking. They are not directly related to smoking, but once I picked up a respiratory infection and spent some time in hospital. After three months there I was allowed out for a brief sojourn to visit a doctor. Such was the lure of my addiction to Marlboros, I stopped and bought a packet and had a couple of cigarettes along the way. I got to the doctor, who said, 'You've been smoking, haven't you?' and I said, 'Yes, I have' quite sheepishly. She said: 'Look, you've got some scars on your lungs. If you continue to smoke you will die of cancer very quickly.' It was a rather a telling moment. That was probably the last cigarette I had. So I know full well the dangers of smoking. I know full well how bad it is. I know that it kills people. The less smoking we have, the better.

The reason I tell this story is that I want to put it very clearly on the record that I am not a defender of what Senator Singh called 'big tobacco'. I am apparently associated with big everything—big tobacco, big oil. Maybe I am accused of this because I am big Cory! But I am just big Cory and I am marching to my own beat. Senator Wong, I see you laughing. Maybe you have accused me of being too big—whatever it is. I am not a defender of big tobacco, but I am a defender of freedom. I am a defender of freedom of choice, I am a defender of intellectual property rights, I am a defender of small business and I am a defender of a business's right to sell a legal product.

I am also a very strong supporter of effective and prudent policy. Many people in this chamber and out there in the community would know that I am deadset against the creep of the nanny state, which seems to have an insatiable appetite. The problem with the nanny state is that it is not so much concerned about whether the practices or the laws it wants implemented or introduced are going to be effective or not—it is not concerned about whether it is actually going to achieve its stated aims. The objective of the nanny state, for those who advocate along this line, is generally to gain more control. It is about more control over individuals, more control over choices, more control over people, more control over businesses and ultimately more control over our society. That is what concerns me, quite frankly, about this legislation.

The advocates of this legislation are proudly trumpeting that this is the most draconian—that is my choice of words; they say it is the strongest—antismoking legislation anywhere in the world, as if it is some sort of patriotic duty that they have done and some sort of great achievement. Those words fill me with dread. Every time we fail to learn from the experience of other nations we risk imperilling our own nation and the things that make it so good. Other countries have quite thoroughly examined this issue of plain paper packaging, and they have invariably rejected it. They have rejected it on the grounds that there is no compelling evidence—no sensible belief—that it will actually decrease smoking rates. Coupled with this are a number of notable risks, and I will come to those risks a little bit later.

The suggestion that this bill is really just another piece of nanny-state legislation is evidenced by the response when the coalition said we would not be opposing it—albeit that we have a number of serious concerns not only about its being ineffective in reducing smoking rates but also about the dangers of legal challenges, the dangers to intellectual property and a range of other concerns which I will come to. When we announced that, the nanny-state supporters came out and started loudly trumpeting what a great victory it was. They then started their campaign suggesting plain paper packaging for alcoholic beverages and for energy-dense and nutrient-poor food. That is the sort of food that most of us have eaten on more than one occasion.

We have a Preventative Health Taskforce who have said they are going to have a crackdown on drinking, on smoking and on this energy-dense, nutrient-poor food. They want to talk about banning drinks advertising. They want graphic warnings on beer bottles. They want 'appropriate portion sizes for meals'. Now, who is going to determine what an appropriate portion size for a meal is? It is a mighty difficult question, because I would suggest to you that someone of my stature might consume a little bit more food than someone of, say, Senator Cash's stature—and that is no reflection on you, Senator Cash; it is probably a reflection on me. They want to tax unhealthy food because it might contain a little bit too much salt or too much fat. We already have a tax on ready-to-drink beverages, based on the premise that it would help reduce under-age drinking; but that reduction has not come to fruition. We have seen a transition from ready-to-drink beverages to naked spirits and people mixing their own. We have also seen suggestions that they want to ban alcoholic energy drinks.

Every time we talk about banning something because people, particularly adults, cannot make the appropriate choices, we go down a path from which I think there is very little chance of return. Once again I come to the fact that we do want to protect children and that there are measures which are effective in reducing the appeal of smoking and other harmful practices to children. We have seen the effectiveness of some of those measures in the form of advertising restrictions and things of that nature. But, with companies investing hundreds of millions, sometimes billions, of dollars in branding their products, for a government then to say unilaterally, 'Sorry, we're not going to allow you to do that,' sends a very, very bad message about the state of governance in this country.

I do not know anyone who defends smoking from the point of view that it is healthy for you. That may have been the case many years ago. In fact, my wife once told me she was diagnosed with asthma when she was seven or eight, and she was told that when she felt an asthma attack coming on she should have a menthol cigarette—an Alpine Light or something similar. It did not really work for her, and she would be shocked that I have revealed the state of the Irish health system back in the early seventies! But, anyway, things have moved on.

We have here an unproven policy, which may be well intentioned, to reduce smoking rates. But I do not think it is going to be effective. That is part of the reason I reject the idea that this bill is good policy. Also, we have heard that people are concerned about the intellectual property rights which may be lost by companies and about the fact that the bill could subject our people or our government to significant compensation claims. The legal issues associated with this bill are actually reflected in the Australian Constitution, a document which I believe more Australians should be knowledgeable about and more governments should be mindful of, because there are often encroachments on the separation of powers and some of the freedoms in our Constitution. There is a suggestion that plain paper packaging would constitute acquisition of property on other than just terms according to section 51 of the Australian Constitution. It may also violate article 20 of the TRIPS agreement, the World Trade Organisation's multilateral agreement on international property, which says:

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

However, there is a health exemption in the TRIPS agreement, and this is where the legal contention lies.

The government and the minister responsible have on many occasions assured the opposition that their legal advice surrounding plain paper packaging is 'robust' and that they are on strong legal ground. Despite past experience, we accept the government's assurance at face value. But we are concerned because we have no proof of this. The government have refused to provide a copy of their legal advice to the opposition. Proposed section 15 of the Tobacco Plain Packaging Bill provides that this bill would not apply to the extent that it would result in acquisition of property on other than just terms, as under section 51 of the Australian Constitution. To me, that also suggests that there must be some doubts about the strength of the legal argument advanced by the government's advisers.

I am also concerned, having been a small business man myself, about the impact of this measure on retailers. There seems to have been a lack of consultation with retailers and small businesses over this issue. A number of them have contacted me, as I presume they have many other senators. They are worried about how this is going to impact their stock management at the point of sale—the difficulties in differentiating between packets that look almost identical.

We know that the House of Representatives Selection Committee referred this bill for inquiry to the House of Representatives Standing Committee on Health and Ageing with a wide-ranging brief. It focused solely on the health impacts of this bill. It did not deal with the impact on small retailers or the impacts of illicit tobacco—statistics for which were mentioned by the previous speaker, Senator Fawcett. The chair of this committee made a specific point of suggesting that there were concerns over these issues and that the bills should be referred to other committees to have those issues dealt with. I would also like to make the point that the first we saw of this bill was when the minister introduced it in the House on 6 July. It was not flagged or issued as part of the Commonwealth's exposure draft or consultation paper, which was released in April this year. The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011, which we are discussing as well, has been referred to the Senate Legal and Constitutional Affairs Legislation Committee so that the committee can consider the specific provisions within this bill, any issues they create and ultimately their constitutionality. This bill contains what is known as the Henry VIII clause. This clause allows regulations made by the minister under an act of parliament to override the act itself. It is the clause that ministers can use to do virtually anything they like. In this situation, regulations made by the minister under the Trade Marks Act could override the Trade Marks Act itself. This is uncommon, to be very generous. It goes against the basic legal principle that an act trumps regulations. These clauses are exceptionally rare, and I stress that they are used only when there is no other alternative. Of course, the minister in this case did have an alternative: she could have drafted the original legislation—the Tobacco Plain Packaging Bill—properly. The coalition believe this would have been a better way. We do not believe that the trade marks bill is necessary for the government to continue to implement their plain packaging agenda. I would suggest that if the minister had not been in such a hurry, has been across the detail, and had taken the time to draft the Tobacco Plain Packaging Bill properly, the Trade Marks Amendment (Tobacco Plain Packaging) Bill would not be needed. That is why the coalition will not be supporting the Trade Marks Amendment (Tobacco Plain Packaging) Bill.

In the time I have left, I turn my attention briefly to the issue of counterfeit and illicit tobacco. I have spoken with the tobacco companies about this and about whether they are overstating the case. I have spoken to some retailers as well. Based on the information that I gained, and based on the information provided to me by some consumers, illicit tobacco is widely available. The annual report of the Australian Customs and Border Protection Service shows that over the last three years it has seized 743 tonnes of tobacco and 217 million cigarettes. Clearly not all of that is illegal tobacco—it might include tobacco brought in by people who have bought too much duty free. I think the government have completely ignored the counterfeit tobacco issue and made no real attempt to address it through the legislation. This is despite the fact that articles 15 and 20 of the World Health Organisation framework also recommend implementing a track-and-trace regime for tobacco products and strengthening legislation against illicit trade in tobacco products. The government have instead let the tobacco companies manage their own tracking of tobacco products on a voluntary basis. This is despite articles within the draft protocol to eliminate illicit trade in tobacco products, as published by the WHO, which also state that the obligations of each party of the FCTC shall not be performed by or delegated to the tobacco industry. So there are a number of ways in which this government have failed to take fully into account the issues surrounding the counterfeit and illicit tobacco.

Finally, I would like to address the minister's conduct. I know that partisan politics play a significant role in how we go about our business, and it would be remiss of me not to insert a bit into my contribution to this debate. The minister has sought to politicise this issue surrounding plain packaging and tobacco control, simply for political gain. Any genuine attempt to engage in discussion or to raise issues which may have a serious impact on how our country will function in the future has been dismissed as the action of a person in the pay of big tobacco, and the rhetoric has been ramped up. The joke of this is that apparently the Liberal Party is in the pay of big tobacco because the Labor Party banned donations from the tobacco industry. It is somewhat galling that it was then discovered that the minister herself wrote to the tobacco industry asking them for a contribution to her own campaign fund. It is somewhat galling that recently there have been six newly-revealed letters—some sort of new revelation—sent by people such as the Minister for Sport, Senator Arbib, when he was secretary of the New South Wales ALP. These letters invited a senior tobacco executive to spend up to $15,000 on tickets to fundraising functions. Personally I do not see anything wrong with that. That is their business. They can invite anyone they like to their functions. But it is rank hypocrisy for those selfsame people and their conduits within the Labor Party to walk into the chamber and say, 'You people are talking to tobacco executives' and 'You people are talking to the tobacco companies about support and sponsorship' when they are doing the selfsame thing. This is what is diminishing politics in this country. The hyperbole is being ramped up, the hypocrisy is reaching a much higher level than it otherwise would, and we are diminishing politics and political debate in this country as a result. If you want to deal with tobacco companies, deal with them. I do not have any shame in saying that I am happy to talk to the tobacco companies, but not because I like their product or because I want to use their product—and I do not particularly want other people to use their product either. I would be devastated if my children started smoking. But they point is that they run legal businesses in this country and, whilst they are doing business legally in this country, we should have no shame in talking to them and openly engaging with them. I say to the government: whilst you are living off the pig's back and taking their taxes and using them to support your employment, you cannot demonise them and say that anyone who talks to them is somehow in their charge.

The problem we have here is that the level of hypocrisy is so large and so grotesque in this government that people have lost confidence in them. They have lost confidence in any genuine attempt there may be to redress some serious social ills, and they have lost confidence in the government's ability to manage things. That is proven by this issue, because the legislation is so poorly drafted that it will not achieve what it is intended to do, and it will have myriad unintended consequences. That is why the coalition stands for common-sense policies. We will give the government the benefit of the doubt on this legislation, but we have serious concerns about its legal implications for the Australian government, to the tune of billions of dollars, and about its effectiveness in stopping smoking at all.

5:44 pm

Photo of Sean EdwardsSean Edwards (SA, Liberal Party) Share this | | Hansard source

I rise today to support my colleagues in talking about the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I was compelled to come down here after listening to quite a bit of the other side's contribution to this debate. They seem to have tried to corner the market on suggesting that we are involved in some kind of conspiracy with big business. It gets a bit tiresome to hear, I must say. What is wrong with big business? We try to attract big business to this country all the time. I think that everybody outside this place would want to know that every big, medium-sized and small business is receiving the support of all sides in this place.

We all know that smoking is the largest single cause of preventable death and certainly contributes to disease on a large scale in Australia. Globally over the next 50 years tobacco smoking is projected to result in 450 million deaths worldwide. That is a staggering nine million people a year. Today I want to draw the Senate's attention to the issue at a local level. According to the most recent ABS survey, 20.2 per cent of Australian males and 16.4 per cent of women are daily smokers. The annual social costs of tobacco use in Australia—the lost productivity and the medical intervention and research—are estimated at $31.5 billion. I have been digging into this further as I have been getting into these bills and I see that South Australia's share of this social cost is $2.39 billion, a staggering figure that recurs every year. Smoking and smoking related diseases are estimated to cost South Australia 57,275 hospital-bed days annually, while the direct impact on South Australia's health budget is estimated at $24 million annually.

No-one can credibly argue that this habit is not an incredible drain on this country's budget. Further research shows that there are not only social monetary imposts. The Cancer Council indicates that smoking rates are higher in rural Australia than they are in major cities and urban areas. This is putting stress on health services that are already diminished compared with those available to their city cousins. More alarmingly, in South Australia there are approximately 1,140 tobacco-attributable deaths annually. Tobacco is the greatest single risk factor for the disease burden in Australia. It accounts for 7.8 per cent of the total disease burden, including sickness, disability and death. Twenty per cent of all cancers and 70 per cent of lung cancers are attributed to smoking. One in two long-term smokers will die prematurely from tobacco-attributable deaths. The Australian Bureau of Statistics figures show that people aged 15 years and over who lived outside major cities in 2007-08 were 30 per cent more likely to be daily smokers than those in the major cities. The difference in daily smoking rates for women was greater than for men. Women outside major cities were 50 per cent more likely to smoke on a daily basis, while men were 15 per cent more likely. Men and women living outside major cities had higher rates of smoking in most age groups and it is only from the age of 55 that the rates of smoking converge for those living inside and outside major cities.

In highlighting these facts I want to make it clear that I support Australians giving up smoking and I actively encourage all those I can to do so. It is this emphasis on reducing smoking rates that leads me to my first concern: the potential rise of the illicit tobacco trade. Senator Bernardi has just spoken about it and Senator Birmingham spoke earlier about it. Most of the senators on my side are very concerned about the illicit trade in tobacco. The impact plain packaging may have on the growth of the illicit trade is not clear and it is likely to become evident only after this measure is implemented. Some retail businesses are already claiming that the illicit tobacco trade, or chop-chop as it is sometimes called, is already on the rise, evidenced through the increase in the sale of papers and filters but not in the sale of pouch tobacco. They are going in and buying their papers and filters, but they are not buying tobacco. This anecdotal evidence has been put forward by representatives of the supermarket industry, who obviously feel somewhat slighted by this legislation because they have not been consulted in any kind of detailed way. The minister has delivered this legislation and they now have to scurry around and reorganise their businesses. It is another lot of government interference in their businesses that they did not expect. The intent of this bill is to further reduce the rates of smoking. If we see a rise in the use of chop-chop then the purpose of the bill has been defeated. The government, if it is serious about reducing the rates of smoking in Australia, must also have a clear strategy on how to deal with the illicit tobacco trade.

Further to the potential rise in the illicit tobacco trade is the uncertainty surrounding the legal foundation upon which this bill sits. I am not a lawyer, unlike a lot of people in this place—it is probably fortunate that Senator Cameron is not here; he would say 'Hear, hear!'—but I do bring some real working experience on trademark legislation. Before coming to this place I spent decades promoting and investing hundreds of thousands, if not millions, of dollars into businesses which had to grow and prosper their products through the use of brands and trademarks. Across the world, it is fundamental that trademarks should be protected. Laws are enshrined, as they are here in this country, to protect people's proprietary rights in trademarks. My concern with these bills rests upon the possible interpretation that they acquire trademarks, which are unquestionably property rights.

There is much contestation about the impact of these bills. We must proceed with caution when legislating for this type of action. Currently, trademarks and intellectual property rights are provided for under the Trade Marks Act 1995 and a number of international agreements, such as the Paris convention and the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, refer to them. Trademarks are an important way for businesses to differentiate their product from others in the marketplace, effectively making it easier for consumers to make decisions about which products to purchase. Plain packaging takes away the ability for companies to differentiate and market a legal product through the use of their trademarks and, as a consequence, takes away their right to their personal property. I will come back to this point shortly.

The tobacco industry states that the introduction of plain packaging regulations would contravene minimum obligations for the protection of intellectual property rights under trade agreements in general, and under article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 in particular. While there is debate about how broadly the industry has chosen to interpret article 20, the point is that there is significant uncertainty over the impact of this legislation. However, in considering this proposed legislation I cannot support the erosion of property rights in any form, whether it be for chewing gum, cheese, soap powder or motor cars. My fear is that parts of this legislation will be the thin end of the wedge. This, colleagues, is one of my primary concerns: that measures like plain packaging could creep into other legitimate, legal goods and services sold and consumed in our society.

Do we prevent the use of trademarks for all products that pose a risk or are perceived to have a negative impact on society? Is plain packaging for tobacco simply the start? What is further down the road of political correctness? It was floated around this place last month, and Senator Bernardi referred to it earlier, that we should have an extra tax on fast food and health warnings on potato chips. Should all food come in drab brown packaging with a warning saying that this product may cause obesity? I suspect not. This bill reflects the totalitarian roots of those opposite: the Left/socialist origins of the Labor Party and the Greens. Telling people what is good for them and passing legislation is another step in their plan to control behaviour.

There are very few things we humans use or consume that, when used in excess, are not damaging. One of my Senate colleagues eats a lot of carrots. I noticed that her palms were orange, and she told me that it is from eating a lot of carrots. We must never resile from protecting an individual's right to choose whether they eat a lot of carrots, whether they smoke or whether they drive a certain brand of car that they like. We must always empower people to take responsibility for their own behaviour. Governments should not be in the business of telling people when, where and how much of something they can eat, drink or do. This is particularly true for all products which are legal—and tobacco, of course, is legal.

This kind of social debate should always come back to freedom of speech, to freedom of choice and to personal responsibility. Through information and education, which are freely available in our community via a number of sources, people can decide what is best for themselves. Branding and marketing are key tools used to differentiate very similar products in a highly competitive marketplace. We cannot take away a company's right to market and brand its product under the spurious guise of health benefits.

Having said all this, I want to reiterate my support for reducing smoking rates in Australia. It is a sentiment with which everybody in this house, including the smokers I have heard, is in furious agreement. But I want there to be a particular focus on rural Australia and I want to let the minister know that it has an unacceptably high number—a disproportionately high number—of people who smoke, compared with the number of smokers in urban and city areas. That is something we should address as a matter of great priority.

To this end I offer my support for the Tobacco Plain Packaging Bill. I hope that it achieves its intended outcome. But I cannot, for the reasons I have outlined, support the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011.

5:59 pm

Photo of Alan EgglestonAlan Eggleston (WA, Liberal Party) Share this | | Hansard source

I have to concede from the beginning that I am an ex-smoker. When I was a medical student, all medical students and all nurses smoked. If you went to a hospital dining room, there would be a smell of tobacco there. But I do not think many health professionals smoke these days. The world has changed so much: from a culture where smoking was acceptable to a world where people see smoking as taking an unnecessary risk with your health. In a world where fitness is regarded as such a high value objective, smoking—which reduces people's lung capacity and can cause peripheral vascular disease, meaning that people cannot run as far or as fast as they otherwise could—is no longer acceptable.

The facts and figures on smoking are as indisputable as they are staggering. When the sickness and disability costs caused by tobacco are taken into account, along with the deaths related to usage, it can be said that tobacco causes more disease and injury in Australia than other risk factor. In fact, research suggests that the cost of tobacco usage to our economy and in the health budget in particular amounts to an astounding $31.5 billion a year. That is a lot of money. To put this in perspective, this is more than three times the GDP of Papua New Guinea—an enormous amount of money.

It is interesting and educational to consider what could be done if we saved that $31.5 billion a year that tobacco is costing us. We could build more schools. We could build more hospitals. We could build more roads. We could build a lot more important infrastructure around this country. We have to consider tobacco perhaps not so much in terms of health impact, even though that is important, but in terms of what we could do if the money that tobacco and the tobacco industry is costing our country and budget every year were available to put into other programs and activities.

Because I was a medical practitioner, I am sure that it will not surprise my colleagues to learn that I support the Tobacco Plain Packaging Bill 2011 as another step in the battle to reduce the level of smoking in this country. But, like other speakers who have spoken this afternoon, I do not support a ban on tobacco. Banning tobacco is not the way to go. Whenever you ban things people then set up a trade in getting around the bans and the prohibitions. We ban drugs and yet there is a great illicit trade in this country in both soft and hard drugs. In the United States in the 1930s, when there was Prohibition and the United States government sought to ban alcohol, bootlegging then occurred. I believe that the Kennedy family in fact became rich by bringing whiskey made in Canada across the border with the United States and selling it around the United States—so the story goes. So banning tobacco is not what we want to do. Banning is the wrong way to go. What we need to do is educate people about the risks of tobacco and the benefits of giving up smoking. That is the pathway that by and large has been taken by various governments around Australia.

As a medical practitioner, like Dr Di Natale—and I am sure that he will make some remarks about this—over the years I have seen firsthand the damage that smoking does not just to an individual's health but in the arbitrary way that it breaks apart families and indiscriminately disables people with diseases like emphysema. It is very hard to forget the sight of an old friend who was once a robust and energetic person and who now has severe emphysema and has to get around dragging an oxygen bottle on a cart behind them and breathing with a mask over their nose just to get enough oxygen to walk a short distance. I once had the experience of catching up with somebody who I had not seen for many years who was in exactly that situation. He invited me to come and have coffee with him at Mindarie Keys in the northern suburbs of Perth. I felt how sad it was to see this once robust person living in that way, pulling his oxygen bottle around with him and able to do very little.

To put it bluntly, smoking kills. It kills in many ways. It kills through heart disease; it kills through the cancers it causes, such as lung cancer and bladder cancer; it kills through peripheral vascular disease; and it kills through respiratory disease, a disease with a very high morbidity rate. I must say that I am very proud to be a citizen of a country that has pioneered anti-smoking health education campaigns and began doing so some three decades ago. Australia, quite rightly in my view, introduced legislation banning tobacco advertising in the media and in the promotion of sport. This meant that people—young people in particular—were not presented with images that encouraged smoking. Instead, they were confronted only by the effects of smoking in the people around them. We strengthened laws prohibiting the sale of tobacco to innocent children. More recently, we imposed tight tobacco controls on smoking in public areas. Once upon a time, whenever you went into a cafe or restaurant you had to peer through the mist of smoke to find whoever it was you were going to have your meal with. People used to smoke in theatres, which is hard to believe now, and even harder to believe is the fact that people used to smoke on aeroplanes, which would be totally unacceptable in this day and age.

Australia in fact has been at the forefront of change when it comes to this toxic drug, and our achievements are truly outstanding when it comes to the curbing of the scourge of tobacco on the community and preventing meaningless incapacity and premature deaths. In my home state of Western Australia, under the leadership of Professor Mike Daube, the Quit campaign, which the Western Australian Department of Health introduced and funded, has produced outstanding results in reducing smoking and is regarded as a world benchmark. I congratulate Mike Daube on his enormous success in reducing the incidence of smoking in Western Australia.

The coalition's record in this area, at the federal level, is also one which we can be proud of. It was Robert Menzies who first introduced a voluntary tobacco advertising code for television, almost half a century ago. It was under the Fraser Liberal government that bans on advertising tobacco products on television and radio came about. More recently, Dr Michael Wooldridge, who was the health minister in the early years of the Howard government, in June 1997 announced what was at the time the biggest ever national advertising campaign against smoking, with a federal government budget of some $7 million over two years. That was a very effective campaign and it began a program of public health activity and action which the federal government has shown considerable leadership in in other areas, such as the HIV campaign, for example. I think our federal government indeed has every reason to be proud of its great record in terms of public health campaigns. The Howard government imposed tougher tobacco taxes and the graphic health warnings on tobacco products, which were introduced under Tony Abbott's leadership as Minister for Health and Ageing in 2006 and which also led to quite significant reductions in the level of consumption of tobacco, particularly, I believe, among younger people. So, not surprisingly, in total the coalition presided over the biggest decline in smoking rates recorded in the history of any Australian government.

The coalition generally supports the Tobacco Plain Packaging Bill, but with some reservations, as some of my colleagues have mentioned today. There are issues, of course, about trademarks—and they are quite legitimate issues of a legal nature. These things have to be given due consideration. I have read that the tobacco industry plans to challenge this legislation through the courts in Hong Kong on issues to do with trademarking, and it will be very interesting to see what the decisions of the courts are when this matter is tested.

But, as I said, I do not think banning is the way to go in terms of reduction in tobacco usage. I think the road we have followed, in terms of health education in discouraging people to smoke, has been very successful—and it is a road that does not involve particularly big legal issues. Even if, in fact, the tobacco industry is successful in the Hong Kong courts in objecting to this legislation, I think the health education campaigns which are being followed in Australia, and this legislation to require plain packaging, will do a great deal to continue the reduction in the consumption of tobacco in this country.

The bill, as we all know, seeks to prohibit the use of all tobacco industry logos, brand imagery, colours and promotional text on the retail packaging of tobacco products. It allows for the use of a brand and variant name in a standard colour, position, font and style on the tobacco package. The bill does mandate that retail packaging of tobacco products should be in a standard, drab brown colour, with the exception of health warnings, the brand and variant name and any other relevant legislative requirements. Personally, I think that people who are nicotine addicts will find a way of finding the particular brand of cigarette that they want, whatever packaging it is in, but hopefully there will be fewer people who are addicted to nicotine and fewer people going into shops to buy packets of cigarettes. The bill does make it an offence to sell, supply, purchase, package or manufacture tobacco products in retail packaging that does not comply with the requirements of the bill—and that, I am sure, will prevent tobacconists and other stores from in some way indicating on the packs, either through their placement on the shelves or with other signage, the brand of the tobacco that is available.

While tobacco control reforms in Australia undertaken by both government and public health organisations have reduced the prevalence of smoking in our community, it is clear that more needs to be done, if for no other reason than the very important one that tobacco is costing our economy $31.5 billion a year—an enormous amount of money. And, as I said, that money could be used in so many other ways: building community infrastructure and other programs which the government might provide for the benefit of the Australian community.

Something like three million Australians, more than one in eight, still smoke. I am told the prevalence is highest amongst Aboriginal and Torres Strait Islander people, with almost 50 per cent of the population over 15 years smoking. That is very sad, because our Indigenous population, especially in some of the more remote areas of Australia, is unfortunately subject to a number of disadvantages, principally alcohol abuse, which leads to breakdown of family values and various other kinds of abuse in these communities. It is very unfortunate that, on top of this, smoking is such a common thing among Aboriginal people.

It is hard to escape the fact that we need to have community health programs and public health nursing services that go out into these Aboriginal communities running, specifically, antismoking campaigns and encouraging Aboriginal people, especially young people, to recognise the detrimental effect tobacco smoking will have on them by reducing their health and life expectancy. Smoking leads to secondary diseases such as chronic bronchitis; emphysema; various kinds of cancer such as lung cancer, cancer of the bladder and cancer of the throat; and vascular disease. So its mortality and morbidity rates are very high.

I believe in health education. I do not believe that banning a product is going to be very helpful, because once you ban it a criminal trade is immediately created to get around the ban. I believe very strongly that the health education campaigns run by governments, both at the Commonwealth and state level, and particularly in Western Australia, have been very successful. We should not only congratulate ourselves on the success of those campaigns but put much more money into reducing the incidence of tobacco usage in this country, bearing in mind that the cost to the community is $31.5 billion a year as a consequence of tobacco usage. That cost is not just in hospitalisation costs; it is in the cost of social services, disability pensions and loss of income for people who are unable to work. I do not think we as a community can ignore a problem that is costing this country $31.5 billion a year. We should all be working and dedicating ourselves to supporting programs that will help to reduce that cost to the community.

I quite sincerely believe that this plain packaging initiative is a step in the right direction, and for that reason I am quite happy to support it.

6:17 pm

Photo of Michael RonaldsonMichael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | | Hansard source

I am pleased to be able to participate in the debate on this legislation. Before I do so I acknowledge that I have been a reformed smoker for some 27 months, 10 days, four hours and about 34 seconds, I suspect—and counting. Those who have been around here for some time will know that in between my time in the other place and my time here I was a participant on behalf of the industry, which is no secret to anyone.

I just want to say a few words. The first is that this is still a legal activity. The companies producing the cigarettes are doing so legally. Those who are selling the cigarettes are doing so legally. Therefore, it was with some concern that during this debate I heard from some on the other side an almost arrogant dismissal of the concerns of small business. Small businesses are concerned about loss of business and the flow-on effects of a reduction in smoking. To arrogantly dismiss those concerns is, I think, very unfortunate. I think they should be listened to, respected and acknowledged. Their issue is also our issue, because it is indeed we who have put them into this position.

I would like to think that this bill will work. I remain unconvinced and I remember vividly when I was in the other place meeting with Customs, the Australian Federal Police and others to address what was a very serious chop-chop issue in Ballarat. What a lot of small business people are concerned about is that they will lose business as a result of this but there will be other so-called small business people operating out of homes and the backs of cars and at markets who have not been paying rates and taxes as part of their businesses, and we will see a shift from legitimate taxpayers across to illegitimate non-taxpayers. That is why I think arrogantly dismissing the concerns of small businesses in relation to this matter is wrong—wrong, wrong, wrong.

Chop-chop undoubtedly is going to become an even bigger issue than it is at the moment. It is a serious issue because it is cheap. There are price controls and points in smoking, as there are with any other purchase. You will probably see more cigarettes smoked with greater prevalence of chop-chop, not fewer. With chop-chop you will probably see some of the outcomes of the reduced use of filters, for example. It will not always be so, but those who know something about it will know that filters are not necessarily used with chop-chop. So I want to make sure that we are not just transferring a problem from the main street to the back alley. If we have done that and that is the outcome then we have let down a generation of small business people, and that, quite frankly, is not fair.

While I remain unconvinced that this is going to work, I will be supporting it. But there is a bigger issue involved, and that is at what stage personal responsibilities finish and government responsibilities start. At what stage do parental responsibilities start and finish and government interference and intervention start in a legitimate sense? This is a bit like the debate at the moment about takeaway advertising. At what stage do we as parents abrogate any responsibility for our children to the state? It is a bit like what is happening in schools, where our teachers are getting enormous pressure placed on them to be parents. These children are delivered from our loins, not those of the teachers who have responsibility for them at school. So what has happened to parental responsibility in relation to issues such as takeaway? What is it that drives people to say the state must step in at every point in the chain to impose itself on the community? Why do parents continue to abrogate their responsibility for their children in relation to these matters? Children do not hop in motor cars and drive down to takeaway outlets; they are in the main driven down there by parents who have the choice as to whether they go and buy some vegetables and some meat and some fish—whatever it might be—at a supermarket or take those children through the driveway at a takeaway shop.

We can sit back here as legislators and throw our hands up and just say at every stage, 'We will support the intervention of the state.' I am simply not prepared to accept that. The challenge for this chamber and for the other place and for the state legislators is to ensure that we do not become the most overgoverned country in this world, and I suspect that is where we are at. We are so darn lucky in this country that I think we have forgotten to take personal and collective responsibility for our own good and we have abrogated it to a group of faceless people who might be there to do the right thing, but are they necessarily delivering the right outcomes? I need a lot of convincing. If we keep on ceding responsibility to government, which is by design a faceless person, then we deserve the outcome we get, quite frankly.

Some six or seven years ago I prepared a paper in relation to red tape in this country. This debate has prompted me and will drive me to update that. When you look at the level of state interference, be it at a local, state government or Commonwealth level, it is frightening. I have heard some remarkable discussions in this chamber over the last 24 hours about trademarks and trademark protection. If we as a nation are prepared to undermine the sanctity of trademarks in this country then we deserve to die by the sword that will be delivered to us. We must protect the integrity of the trademark, and that is why we will be opposing that particular bill.

But I want to say this before I finish up. I have seen the outcome of cancer in its most insidious state. Senator Di Natale talked about his experiences as a doctor. I fully accept that. I lost three of my closest friends in about 18 months from various forms of cancer; none of them reached the age of 55 and I still desperately miss all of them. But we have to separate out those issues from the bigger issues. We have to make sure that we are not doing things because we think it will make us better or we think that it might work. We must be making these long-term decisions, these government intervention decisions, on the back of facts. There is no doubt that smoking is bad for you. There is no doubt that smoking will kill you. There is some doubt about whether this measure is going to address that issue. If in 10 years time we look back and all we have achieved out of this is an increase in the illicit tobacco trade then we have not just let ourselves down; we have let down those people we are ostensibly here to protect as a result of this legislation. It would give me no joy, I can assure you, Mr Acting Deputy President, if that were the outcome, but I think there is a very serious risk that it will be.

This is a campaign that has been driven by those who I accept have a legitimate health issue and concern, but it is also being driven by an industry of people who want to see the state interfere in every single aspect of our lives. I am not suggesting for a minute that any one person here who has spoken is solely part of that latter group. I certainly would not accuse Dr Di Natale of that. But what I am saying is that there is a group out there that just see this as part of a long-term strategy in relation to increased interference. And we know what is going to be next: it will be the alcohol industry; and then they will just be picked off slowly, slowly, slowly. I think it was Senator Edwards who said it is the thin end of the wedge.

Let us support this bill, let us see if it works, but let us not make this the test case for what we are going to do in the future. Feeling good about doing something is not the reason we are here. We are here to legislate for legitimate outcomes, not faint hopes. If we allow ourselves to slip into the latter then we will allow ourselves to be seduced by the notion of 'feeling good' being the appropriate outcome. And it must never be the appropriate outcome; good governance has got to be the outcome; what is in the long-term interests of this country has got to be the long-term outcome. But what is not in the best long-term interests of this country is for the state to determine our every single movement, our every single activity. I have said before that there is a very substantial risk that we will become totally over-governed in this country.

I hope that this measure works. The jury is very much out. But I will finish where I started. Do not blame the small business community for their concerns about this legislation. Do not blame them for expressing concern, as I said earlier, that we will see the tobacco industry going from a legitimate business to an illegitimate business. Do not accuse the tobacco companies of being the purveyors of evil. They are operating because we allow them to operate—no more and no less. They are a legitimate business in this country, fully sanctioned by this chamber, by this government and by past governments. If someone wants to do something about that, okay, put your hands up and let us do it. But do not, in these debates, separate these people out and put them into the evil corner without acknowledging that they are there because we allow them to be there. They are legitimate because we make them legitimate. Those small businesses selling this product are there because we make them legitimate. I do not support the trade marks bill. We do not support the trade marks bill. I will support the first bill in the hope that something constructive comes out of it. But I think the jury is very, very much out in relation to that.

6:33 pm

Photo of Jan McLucasJan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | | Hansard source

I am very pleased to be closing the debate on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Senators in the chamber recognise that these are very important pieces of legislation. Today is a landmark day for tobacco control in Australia. Senators who have spoken in favour of the 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 politics that we have unfortunately seen from some speakers. They join with the 260 professors of health and medicine, including four former Australians of the Year, who have written to all federal MPs to seek unanimous support for legislation to mandate the plain packaging of tobacco products sold in Australia.

When the Minister for Health and Ageing introduced the bill in July, the minister detailed the toll of death and disease felt by our community each year from tobacco related diseases. The stark reality is that some 15,000 Australians die every year from this deadly product. The purpose of this legislation is to reduce the toll that is felt within our community. Tobacco is a product not like any other product. It kills half the people who use it regularly and as intended. The pack is not opened and thrown away; it is carried around by the smoker, continually brought out of their pocket or purse, put on their desk, held in the public arena and shown to friends—reinforcing the brand and their personal identity and exposing the marketing to many social groups, including 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 on the packaging will be the brand and variant name in a standard colour, standard position and standard font size and style. That legislation is being supported by the chamber, and I take this opportunity to thank all senators for the support—albeit some quite grudgingly—of this historic legislation.

The opposition have already said that they will oppose an important part of the legislation package—the second bill, the Trade Marks Amendment (Tobacco Plain Packaging) Bill. There has been a lot of debate in this chamber about this bill. I take this opportunity to thank the Legal and Constitutional Affairs Committee for their inquiry and report into the legislation. The bill is designed to allow the government to act quickly to protect trademark owners' rights if there are unintended consequences for trademark owners and applicants from the practical operation of the plain packaging legislation. Contrary to what many coalition senators have been saying today about the trade marks amendment bill, any regulation made under the new section 231A will not have any effect on the operation of the Trade Marks Act in relation to goods and 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 are simply not correct. Some of the contributions given by senators opposite about this bill seemed to show a level of misunderstanding that is somewhat bemusing. I do not know whether that level of misunderstanding is somewhat intentional. It does seem a little strange to us that the opposition is going to oppose the second bill, which actually provides additional assurance to tobacco companies that if the interactions between the plain packaging bill and the Trade Marks Act impinge on their legitimate trademark rights to register, maintain or protect trademarks, we would be able to take urgent action to protect those legitimate trademark rights. The enactment of these bills will give effect to Australia's commitment under the World Health Organisation Framework Convention on Tobacco Control.

A number of senators have made comments about illicit tobacco. The first bill, the plain packaging legislation, allows for tobacco companies to place an origin mark which is an alphanumeric code on the packaging on a voluntary basis to assist the industry in tracking and tracing. It also allows tobacco companies to continue to use other anticounterfeiting measures such as taggart ink and forensic-level differentiation of packaging material. Further, the 2010 National Drug Strategy Household Survey found that the proportion of smokers using unbranded loose tobacco regularly—that is, half the time or more—remained at about 1.5 per cent. That is not a significant change from 2007. I share the concern about chop-chop. I live in Far North Queensland. Mareeba, just west of us, was a tobacco-producing area and chop-chop was around. But this bill actually puts in place some measures which will assist in ensuring that there will not be growth in illicit tobacco use.

The fact that we will be the first country to introduce these measures is very exciting. I am aware that a number of countries around the world are supportive of our legislation. I take this opportunity personally to commend our Minister for Health and Ageing, Minister Nicola Roxon, who has shown great leadership and courage in bringing this legislation forward. She has been recognised both here in Australia and internationally for this leadership. She received the Nigel Grey Award, which is awarded to people who work hard to ensure that tobacco use is diminished in our country. That award is given by tobacco control advocates in our country. But importantly—and we can be enormously proud of this as a nation, and I am not being partisan about this—Minister Roxon was awarded this year, on World Tobacco Day, the Director-General's Special Recognition Award by the World Health Organisation. She should be commended by us all for that leadership.

The passing of this legislation, Senators, will be another nail in the coffin of tobacco marketing. I commend this legislation to the Senate.

6:40 pm

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

Mr Acting Deputy President, I request that the question be divided, as some senators wish to vote differently on the two bills. I think this has been foreshadowed sufficiently during the debate, so at this point I would like the question for the second reading to be divided.

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Indeed. We will deal first with the Tobacco Plain Packaging Bill 2011. The question is that the bill be read a second time.

Question agreed to.

Bill read a second time.

The question now is that the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 be read second time.

Question put. The Senate divided. [18:45]

(The President—Senator Hogg)

Question agreed to.

Bill read a second time.