Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Last night, as we proceeded to the adjournment, I was talking about the impact of smoking in the Northern Territory and I now remind people that the rate of smoking in the Northern Territory is, in fact, the highest in the country. When I concluded last night, I was in the middle of a sentence that went something like this: in 2004-05 more than 56 per cent of Indigenous adults in the Northern Territory aged 18 and over were smokers. The rates of smoking in some Aboriginal communities are as high as 73 per cent of adults. Based on this data, the rate of smoking amongst Indigenous adults in the Northern Territory is approximately 2.2 times the non-Indigenous rate and 3.3 times the national rate. Based on this data too, the rate of smoking in the Northern Territory produces a great burden. The burden of tobacco related disease is particularly high amongst Indigenous people, and we see this on a daily basis. It could not be more clear that drastic steps are needed to address the enormity of this problem.

Under the Council of Australian Governments National Healthcare Agreement, the government has committed to reducing the smoking rate among adults, aged 18 and over, from 19 per cent in 2008 to 10 per cent by 2018 and halving the smoking rate among Indigenous adults from 48 per cent in 2008 to 24 per cent by 2018. As part of the strategy to achieve this, we recognise the need to assist and encourage smokers to quit and we also recognise the need to discourage people from taking up the habit. So a major element of the strategy is to reduce the attractiveness of tobacco and to focus attention on health issues. That is why we have appointed Dr Tom Calma as the National Coordinator for Tackling Indigenous Smoking and much of the work that we are doing to decrease the smoking rate amongst Indigenous Australians will be his responsibility. In 2008 we committed $14.5 million to the Indigenous Tobacco Control Initiative, which supports 18 pilot projects to tackle smoking in Indigenous communities around Australia. The lessons learned from those projects are being applied to the measures worth $100 million for tackling smoking under the Council of Australian Governments Closing the Gap in Indigenous Health Outcomes National Partnership Agreement. The Tobacco Action Workforce is being rolled out nationally in 57 regions over three years through regional teams with healthy-lifestyle workers who are working to promote good nutrition and physical activity. On 29 April we announced that we would legislate to mandate plain packaging of tobacco products by 1 July 2012. The evidence shows that branding and packaging design can mislead consumers about the safety of tobacco, reduce the effectiveness of graphic health warnings and increase the appeal of tobacco to young people. This evidence is set out extensively in the reports of the Preventative Health Taskforce, which find that plain packaging would increase the noticeability, recall and impact of the health warnings, that it would reduce the ability of packaging to mislead consumers to believe that some products may be less harmful than others and that it would reduce the attractiveness of tobacco products to both adults and children. Generally, the aim is to reduce the appeal of smoking.

The Tobacco Plain Packaging Bill 2011 regulates the retail packaging and appearance of tobacco products to improve public health and to give effect to certain of our obligations under the World Health Organisation Framework Convention on Tobacco Control. The plain-packaging legislation will prohibit tobacco industry logos, brand imagery, colours and promotional text other than brand and product names in a standard colour, position, font and style on the drab dark brown colour shown through research to have the least appeal to smokers. When the legislation comes into effect, the warning and graphic will cover 75 per cent of the front of the package rather than the current 30 per cent.

The bill will make it an offence to sell, supply, purchase, package or manufacture tobacco products for retail sale other than products in packaging which complies with plain-packaging requirements. These offences will apply to manufacturers, packagers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the plain-packaging requirements. We know that these strong measures are not going to be popular with everyone. After all, these will be some of the toughest measures against tobacco smoking in the world, if not the toughest. We do have a responsibility to reduce the incidence of tobacco related diseases and encourage people to quit. In fact what we want to do is prevent our young people from taking up smoking.

Finally, I want to turn to one of the main elements of debate in relation to these bills. There is not so much debate about the Tobacco Plain Packaging Bill 2011—we hear that the opposition is going to support that legislation—but they make spurious arguments for not supporting the Trade Marks Amendment (Tobacco Plain Packaging) Bill. This bill was sent to the Senate Legal and Constitutional Affairs Legislation Committee, which I chair, for particular inquiry into and reporting on the elements of this legislation. The trademarks bill is consequential to the plain-packaging bill. It is intended to amend the Trade Marks Act to enable regulations to be made in relation to the use of trademarks. As the minister noted in her second reading speech:

The objective of any such regulations would be to ensure that the practical operation of the Tobacco Plain Packaging Bill 2011 does not prevent businesses from registering new trademarks, or from protecting registered trademarks against infringement.

The opposition say they are not going to support this piece of legislation. It would not be any surprise, of course, that the people who are objecting to the trademarks amendment bill are the four main tobacco companies operating in Australia. It seems to me that the opposition want to have their cake and eat it too, basically. Their public position is that they are going to support the plain-packaging bill but that they are going to hedge their bets and support the big tobacco producers by not supporting the consequential legislation, which is the trademarks amendment bill. They do that by hiding behind the fact that the trademarks amendment bill is predominantly what is known as a Henry VIII clause. That is, it is an express provision which authorises the amendment of either the empowering legislation or any other primary legislation by means of delegated legislation.

The Scrutiny of Bills Committee, which I once chaired in this parliament, is tasked with looking at each and every piece of legislation that comes into the Senate—and a fine upstanding committee it is. It examined this bill and noted that, while clause 231A enables regulations to be made which are inconsistent with the Trade Marks Act, the explanatory memorandum to the trademarks bill contains a detailed explanation of the possible need for this clause, including the need for the government to comply with its obligations under the Madrid protocol. The Scrutiny of Bills Committee then concluded that it would make no further comment, so it did not see this as a significant issue or problem. The Madrid protocol is an international agreement which facilitates a system of international registration of marks administered by the World Intellectual Property Organisation.

It is interesting to note the evidence that the committee took while investigating this legislation. The submission from the Department of Health and Ageing outlines that a draft of the trademark bill, along with any amendments we were proposing to the plain-packaging bill, had been issued for public response so that anyone could raise items of concern. There was consultation on the exposure drafts of both of these pieces of legislation. And do you know what? None of the evidence we received during the committee inquiry came from the tobacco associations. None of them provided input—none at all. There was no input from British American Tobacco Australia, who so adamantly said to us during our committee inquiry that they were fervently opposed to the trademarks bill. Issues about the trademarks bill were raised only by the International Trademark Association, the Institute of Patent and Trade Mark Attorneys, the International Association for the Protection of Intellectual Property and Professor Mark Davison, who was a member of the expert advisory group. It is interesting that when the department had an exposure bill out there for consultation, none of the main tobacco companies sought to have any input then but were more than happy to come to a Senate committee and raise their concerns at that time—and, of course, have managed to arm-twist the opposition into believing them that the Tobacco Plain Packaging Bill 2011 and the consequential bill, the Trade Marks Amendment (Tobacco Plain Packaging) Bill should now, for some reason, be supported.

But let us have a close look at why we believe we need to support this legislation. Contrary to what some people on the opposition would have you believe, it will be able to be disallowed in parliament. Under the subordinate legislation—which is what this trade marks amendment bill provides—if a regulation is made that can then change the substantive plain packaging bill, that process that the minister may undertake is disallowable in both houses of parliament. So I am entirely baffled as to why the opposition would not support the trade marks amendment bill, and I would welcome an explanation from them as to why they do not believe that the ability to have any regulation examined by the Senate Standing Committee on Regulations and Ordinances and the ability to disallow any regulations by both houses of parliament is not a sufficient enough safeguard for them to support the trade marks amendment bill.

Henry VIII clauses are not unprecedented in Australian legislation or even in the Trade Marks Act itself. My committee concluded:

In this context, the committee notes the evidence of Professor Simon Evans who stated that, on current authorities, a Henry VIII clause, regardless of its breadth, would be constitutionally valid.

We also noted that the Henry VIII clause in the trade marks bill that we are dealing with today is limited in its scope. That is in the explanatory memorandum and the outline of the bill. It provides that regulations can only be made in relation to the effect of the operation of the plain packaging bill. So we have a very narrow application that would be used only if needed, drafted in response, as the department said, to issues raised by the submissions during their public consultation.

So let us be clear about the process. The department went out with a draft exposure of the trade marks amendment bill and three organisations and a professor provided input and none of the tobacco companies had any input. The drafting of this has been done in response to that public consultation. The trade marks amendment bill would allow subordinate legislation or a regulation to be drafted that amends the substantive plain packaging bill. If that occurs, the regulations and ordinance committee of the Senate can have a look at it and that instrument can be disallowed by both houses of this parliament.

So I am at a loss to work out why the opposition would want to support this. I will go to their dissenting report and quote what they suggest. They use a very unusual word, but I suspect it is one that probably Senator Brandis has dug up somewhere. They say:

It is difficult to see how a lacuna—

'a lacuna' sounds like something out of TheLion King, really—

in the Government's plain packaging regime of a few months—should that be necessary to allow Parliament to remedy any flaw in this regime …

A lacuna is actually a gap. If you go to a thesaurus or a dictionary it talks about a gap or a flaw. But that is not what the trade marks amendment bill is about.

If Liberal senators are actually opposing the trade marks amendment bill because they somehow think that there has been a gap or a flaw in the original legislation, they have totally got it wrong. The trade marks amendment legislation is there in case at some stage there is a need to protect the manufacturers of the cigarette companies. The plain packaging legislation 'is intended to provide an additional level of assurance for trade mark owners' and to ensure that the government will be able to 'act quickly to address any unintended consequences' arising out of the regulation of trademarks intended for use on tobacco products and their retail packaging.

So I would be really interested to hear from the opposition exactly in the context of the work that we did in the Senate Legal and Constitutional Affairs Legislation Committee and on the fact that the large tobacco companies in this country did not provide to the department any input during the consultation phase of the trade marks amendment bill, on the fact that that bill is here to provide some level of reassurance for trademark owners of tobacco products on their retail packaging and on the fact that any regulation that is struck under this trade marks amendment bill could be subject to scrutiny by the regulations and ordinance committee and disallowed in both houses of parliament.

I can only come to the conclusion that while, on the face of it, you might be seen to be supporting the tobacco plain packaging bill, what you are really doing is hiding behind the facade of the trade marks amendment bill to actually protect the big tobacco companies and owners in this country. That is what you are really doing. You are using this bill to actually say, 'We agree with the intent of the health outcomes you are trying to achieve'—yeah, right—'but really we're backing up big business.' I call on you to reconsider that and to put your support behind both of these pieces of legislation. (Time expired)

Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate Senator Xenophon's speech on the Tobacco Plain Packaging Bill 2011.

Leave granted.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

(South Australia) (12): The incorporated speech read as follows—

Tobacco Plain Packaging Bill

Mr Acting Deputy President, tobacco kills over 15,000 Australians every year, from cancer, heart disease and chronic obstructive pulmonary disease.

That's around 50 people a day.

It is the largest single preventable cause of death and disease in Australia.

In fact, smoking kills more people every year than road accidents, alcohol and other drugs combined.

Yet despite these statistics, despite most people knowing the dangers, 3 million Australians continue to smoke daily.

This Bill is one way to try to reduce the number of Australians who smoke and who take up smoking.

The Preventative Health Taskforce has told us that plain packaging will increase the impact of health warning messages, it will reduce the ability of tobacco companies to mislead consumers into believing that some cigarettes are less harmful than others, it will make cigarettes look less attractive and it will reduce the appeal and desirability of smoking generally.

This Bill is also in line with the World Health Organisation Framework Convention on Tobacco Control, which recommends that plain packaging be considered as part of comprehensive bans on tobacco advertising.

Australia is the first signatory to the Framework and will be the first in the world to implement this recommendation.

The question is, will plain packaging work?

Well, if it isn't likely to reduce the number of smokers, I highly doubt the big tobacco companies would be as scared as they are.

Mr Acting Deputy President, tobacco is big business.

The equivalent of 1100 packs of 25 cigarettes are sold in Australia every minute.

In the last financial year, Australians spent $13.4 billion dollars on cigarettes and tobacco.

So it's not surprising that British American Tobacco, Imperial Tobacco and Philip Morris, for example, are very worried about the impact this legislation will have on their bottom line.

Because plain packaging will go some way to reducing smoking.

Plain packaging will prohibit the use of all tobacco industry logos, brand imagery, colours and promotional text on the retail packaging of tobacco products.

And it will make every packet a drab green-brown colour.

Smoking may have a bit more of a taboo culture about it these days, but for many young Australians, the attractiveness of the habit is still there.

Of course, plain packaging on its own won't reduce smoking rates to 10 percent by 2018.

But, in conjunction with increasing the tobacco excise, alongside restrictions on internet advertising through a Bill that's about to be brought before the Senate, and with additional funding for anti-smoking social marketing, smoking in Australia may fall.

Mr Acting Deputy President, I note the concerns that have been raised by the tobacco companies about the impact this policy will have on Australia's international obligations with respect to trade marks.

But ultimately, I believe we need to do whatever we can to reduce smoking rates in Australia.

The Tobacco Plain Packaging Bill will remove the advertising for smoking which a cigarette packet does on its very own.

As one Philip Morris executive is reported to have said — "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," he said.

Let's face it — a group of people are out at a café. Let's assume they're in a State where they can smoke in the outdoor area.

One pulls out a pack of cigarettes. They light up, and leave the pack on the table. That's advertising. Right there.

A smoker I know, for example, has admitted to me that they smoke the brand of cigarettes they saw all their friends smoking and, on occasion, this person will see someone smoking a different brand and they'll try one of their cigarettes "just to see".

And the only way this person knows to try a different brand is by the different coloured box, the different font, the different logos.

Mr Acting Deputy President, plain packaging will change this mindset.

It may not see a dramatic drop in smoking straight away, but I do believe plain packaging will, year by year, reduce the prevalence of smoking and most certainly it will reduce the uptake of smoking.

Tobacco companies spend big bucks in research and development of packaging.

They look at every minute detail — not just what colour the packet should be, but exactly what shade; they look at the fonts and the size of the letters and the spacing between words; they think about the size of the box, whether it's slim, wide or narrow ...

The packaging of each brand is different, tailored for men, for women, for the more expensive brands and for the cheaper brands.

Mr Acting Deputy President, plain packaging will remove the opportunities for tobacco companies to draw in its consumers.

Mr Acting Deputy President, I welcome the transition measures in the Bill for retailers, which will allow them to stock and sell both compliant and non-compliant cigarettes for a period of time.

This will enable them to sell continue to sell current stock while at the same time stocking their shelves with compliant products so there will not be a gap in supply and there will be minimal excess stock of non-compliant products.

Mr Acting Deputy President, whether you smoke or not, I think most people agree that we have to do something to reduce smoking in Australia.

This Bill is one key measure to achieve this and that is why I support this legislation.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I rise to speak on Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011, and I do so having had, I think, a track record in my few years in this place of expressing reservations where appropriate about proposals that governments introduce that increase the nanny-state approach to regulation and legislation in this country. Today my remarks will be no different and I will outline some concerns I have with this legislation, notwithstanding, ultimately, recognition that it will pass.

I do hold strong concerns with the mission-creep of government into the lives of individuals and into the operations of private enterprise. Individuals find government spending more and more of its time interfering in things and therefore more and more of their money telling them what is good for them and telling them how to live their lives or run their businesses. In some ways this is a good thing. I fully accept that information is power, and knowledge used wisely can lead to better decision making by individuals. But law makers in this country, at all levels, must ensure they know when and where to draw the line, when enough knowledge is available to empower sensible decisions and when government action starts to impede on voluntary, informed decision making by people, decisions that are made by individuals with full cognisance of the consequences of those decisions.

In approaching this debate, I am reminded of the words of PJ O'Rourke in his Liberty Manifesto of 1993. He said:

There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences.

That libertarian sentiment does, I believe, need some tempering, so I will leap from the modern day liberal thinking of PJ O'Rourke to the early liberal thinker John Stuart Mill. In his classic text On Liberty, Mill said:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him …

…   …   …

In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

In On Liberty, Mill set a standard for liberal thinking which, I believe, is as broadly relevant today as it was when he penned those words in 1859, and it is with that philosophy in mind that I turn to this legislation. Within this legislation are elements of both persuasions and compulsion. The impact of this legislation for individuals is largely one of persuasion. However, the impact for business is largely one of compulsion. For individuals, the legislation attempts to make smoking less appealing by, firstly, removing any allegedly attractive or appealing elements of tobacco packaging and, secondly, by effectively warning people about the harms of smoking. For business, the legislation strips from them their established brands and trademarks, with no recompense.

Let us assess these motivations and the consequences of this legislation in sequence—firstly, the removal of the allegedly attractive or appealing elements of the packaging and its impact on the motivations of individuals. The impact of this so-called plain packaging approach on consumer behaviour is, frankly, unknown; it has not been tried anywhere else. That is not to say that it should not be tried here; somebody has to be the first in all reforms, of course. But what I do note is that already cigarette packaging is hardly attractive to the eye in any event. The unattractiveness of existing cigarette packaging is due to steps already taken by governments to achieve the second motivation behind this legislation, which is to effectively warn people about the effects of smoking. Health warnings, however, have actually been displayed on tobacco products since 1973. Most significantly, they were dramatically overhauled by the Howard government with reforms which took effect in March 2006. It was the former member for Adelaide and Parliamentary Secretary for Health Trish Worth who championed and delivered these reforms, and they were quite striking in their effect.

Tobacco products today have health warnings that cover 30 per cent of the front of the packet—that being the most prominent, most visible top fold of the packet—and 90 per cent of the back of the packet. Each warning contains graphic and disturbing imagery. Alongside those disturbing images are warnings that are rotated on different packets. Those warnings—such as 'Smoking causes emphysema,' 'Smoking causes mouth and throat cancer,' 'Quitting will improve your health,' 'Smoking: a leading cause of death,' 'Smoking harms unborn babies,' 'Smoking causes blindness,' 'Smoking is addictive,' 'Smoking doubles your risk of stroke,' 'Smoking causes lung cancer' and 'Smoking causes heart disease'—stand out very, very strongly indeed.

Since these reforms took effect in 2006, it has been nigh on impossible for anyone to pick up a packet of cigarettes without being warned about the health consequences every time they look at the packet. To return to my opening comments, there is no excuse for people not already being fully informed about the consequences of their smoking. In fact, it is almost guaranteed that smokers these days choose to smoke while being fully informed of the potential negative consequences.

Senator Di Natale interjecting—

That, in fact, would be illegal, Senator Di Natale, and that law should be enforced fully. They may choose to reject those consequences. They may even dispute the validity of those consequences or the smoking warnings. But they are certainly informed of the facts and the figures, which, of course, have very emotive pictures alongside them to emphasise the message. So, in terms of the motivations behind this legislation, we do not know whether this will work in reducing the appeal or attractiveness of smoking, but we do know that these packets have been pretty unattractive since the reforms of 2006. We also know that it is impossible, barring sight or literacy problems, that people are not already being warned about the negative consequences of smoking. It is hard to see how or if this legislation will make any meaningful difference to the likelihood of people taking up smoking or choosing to smoke.

The consequences of this legislation on business are clear and are meaningful and do apply an element of compulsion—in this case, a ban on companies using trademarks, branding, logos et cetera on their products. This is an extraordinary step for government to take. It is not that in passing this legislation the government is making these products, cigarettes, illegal. It is not that in passing this legislation the government is acquiring the trademarks or brands from the companies in question. It is that this legislation effectively extinguishes these trademarks and logos by banning their use.

This raises some serious questions around intellectual property rights and the rights of companies in terms of established logos. Companies, in whatever sector, argue that such branding is important for product differentiation. Because no steps have been taken by government to regulate this product or make it illegal for manufacture and sale, it remains a competitive market with different companies seeking to maximise their individual market share. That is right and they will continue to seek to maximise their market share. But stripping all of them of their branding and logos and trademarks means their capacity to do so is minimised.

Taking away this intellectual property has been cited by many as raising the potential risk of compensation claims from these companies. Intellectual property law has built up over a long and sustained period of time in Australia. It has an important role to play in all our dealings, particularly as in emerging economies and some of our major trading partners like China we go to great lengths to urge them to impose stricter, tougher and tighter intellectual property laws. By undermining our own, we undermine that argument in those places. And we potentially expose Australian taxpayers to the ridiculous situation where, if tobacco companies challenged this legislation in the courts and are successful, they could end up having to pay significant sums of money to those tobacco companies. I would think everyone in this chamber would not wish to see occur.

I am not usually inclined to quote journalists but Barrie Cassidy made a very valid point with regard to the legal advice that the government relies on. Speaking on the 7PM Project in September he said:

I mean that is the really scary thing, that they felt they had a really strong case—

speaking of the government's migration amendments—

and clearly they didn't. The same office, by the way, is advising the government on the plain packaging of cigarettes and this is a big deal because the big cigarette companies around the world have got deep pockets and they are taking on the government and they want this to be an international test case. If the government loses that one we'll all suffer. You won't get your pension until you are 80.

Whether Cassidy is right or wrong will of course be determined in the courts. But there is a real threat, and it is an unnecessary threat. If the government wished to make tobacco products less attractive they could have increased the size of the warnings. They could have largely overtaken the packets with warnings. They could have stripped trademarks and logo use on the packaging right back to the absolute bare minimum: simply the top of the packet, the bottom of the packet—a very small, 10 per cent, portion of the packet. Instead, they have taken the extra step that imperils the taxpayer because of the potential for challenge and, in doing so, creates the situation where the arguments Australia has historically made in favour of a strong and robust recognition of intellectual property are undermined. That is what concerns me about this legislation.

I am no fan of smoking and no particular fan of tobacco companies. My father died of smoking related cancers when I was just 12. I would have liked to have known him a little better than I did. However, I think in this place we need to always consider legislation with a rational mind and take a rational approach, not an emotional approach. I think the motivations behind this legislation are clearly sound. Reducing smoking is important. Reducing smoking rates is something we should strive to do. If there is a belief that we can manage to do that by taking up more of the packaging with health warnings then that is worthy of support. That is why the opposition is not opposing the primary legislation before us. But it seems to me to be a significant and unnecessary step, in overtaking the packaging with these health warnings, to take away the trademark and logo and extinguish their use in the process. That seems to me to expose taxpayers to unnecessary risks, and that it will be on the government's head. They have decided to go down this path.

The opposition have taken the approach that we stand just as much against smoking as anybody else. We stand ready, just as much as anybody else, to campaign against smoking and to do our bit to try to discourage all Australians from taking up this habit. That is why we introduced graphic health warnings when in government in 2006. But, having taken that step and demonstrated our credibility in this space, we are not going to allow the government to wedge the opposition or to paint us as being against measures to try to reduce smoking rates. That is why we will let this legislation go through. But it is a pity that the government was not willing to have a sensible and rational discussion about the implications of this legislation.

Senator Brandis interjecting —

Senator Brandis slightly scoffs, knowing that sensible and rational discussions are not what this government is known for.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

You're just such an optimist, Senator Birmingham!

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I try to be, Senator Brandis. It is a pity that the government was not willing to engage in sensible discussions that could have seen an extension of the graphic warnings applied under the Howard government so that they overwhelmed the packaging, but would not have exposed Australia to the hypocrisy of undermining our longstanding position on strong intellectual property rights and would not have potentially exposed the Australian taxpayer to claims over the loss of brand as a result of this legislation.

Debate interrupted.