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Wednesday, 28 February 2018
Page: 2334


Mr HAMMOND ( Perth ) ( 18:15 ): I rise to speak on the Treasury Laws Amendment (Illicit Tobacco Offences) Bill 2018 in order to perhaps take the debate in a slightly different direction, albeit directly related to the curse of tobacco. It must be said from the outset that one of the perennially bizarre things about the tobacco industry is that now that it is demonstrated beyond any real measure of doubt that there is no known level upon which inhalation of tobacco smoke is safe, we're stuck in this strange vortex where a company can lawfully produce a product in which its intended benefit includes potentially killing you. In the knowledge that lung cancer can be caused by the inhalation of tobacco smoke, we have a situation where there is a direct causal connection between excessive inhalation of tobacco smoke, lung cancer and, inevitably, death.

There are many reasons why I am very proud to stand with my Labor colleagues in refusing to accept in any way, shape or form financial assistance or any other form of assistance from tobacco companies. The reason I have come to this view might be slightly different from others in this place, but it is a deeply personal reason shaped by some incredibly brave men and women I have been proud to represent in the course of my previous life, working as a solicitor and then later as a barrister in the legal profession.

It's appropriate at this point, talking on this bill, to acknowledge those incredibly brave plaintiffs, those brave men and women who had the courage to take on the unparalleled might of the tobacco companies in the courts. Whilst there are dozens of cases, I would like to take this opportunity to single out two. The first is a case of epic proportions, and there is no doubt it was a war. It was a litigation war waged by one woman, an incredibly brave woman struck down by terminal lung cancer and in the end stages of her life in the late 1990s and early 2000s. Her name was Rolah McCabe. I had the privilege to meet Rolah McCabe a number of times when I was a solicitor, and she was hopelessly addicted to tobacco. Rolah McCabe developed lung cancer as a consequence of her hopeless addiction, which she had tried to kick any number o f times, but, sadly and tragically , failed. She had the great strength to instruct solicitors to bring proceedings against British American Tobacco for negligence for continuing to market a product that they knew to be potentially deadly in a manner which made the reasonable person think anything but that. This was back in the days when it was put upon consumers that smoking cigarettes was sexy or smoking cigarettes made you cool or smoking cigarettes could make you successful or more popular. Just like with the asbestos wars, the tobacco companies knew that was wrong and they knew that excessive inhalation of tobacco smoke—and, as I have already said, no-one has actually declared that there is a safe level—and excessive exposure to tobacco smoke could potentially kill you. Hundreds of thousands—if not millions—of people like Rolah McCabe all around the world succumbed to that disease.

Rolah had the intestinal fortitude to fight British American Tobacco in the courts—and fight them she did. I will never forget working as a solicitor at the time, waging other litigation battles, where I had the privilege of working alongside fierce litigators like Peter Gordon, John Gordon, Andrew Grech, and Andrew Higgins, who I still remember as a young 20-something spending hours and hours in a tiny little office poring through the discoverable documents of British American Tobacco in order to establish the case that British American Tobacco knew or ought to have known of the risks to health as a result of their various advertising campaigns. It was Andrew Higgins, Peter Gordon, John Gordon and Jack Rush QC, as he then was, who came across a discovery. The discovery was that, notwithstanding the many, many years that preceded Rolah McCabe's case—of which her time was running short—the documents which they knew to exist which demonstrated on the plaintiff's submission that the tobacco companies knew or ought to have known of the risks of injury or death had disappeared. The documents had disappeared.

Again, Rolah McCabe and her legal team, as they then were, rushed to court given her very limited life expectancy and took British American Tobacco to court to have the defence that they had lodged struck out on the basis that a so-called document retention policy was put in place with either the intent or had the result of destroying documents which would otherwise assist the plaintiff in her case. That resulted in McCabe v British American Tobacco Australia (2002) VSC 73. I still remember the day the ruling was handed down on this case—a case in which Rolah McCabe was successful, in which she took on the tobacco companies and won, and on which the judge, the honourable Justice Eames, made the following finding at paragraph 263:

There can be no doubt, however, that within the defence camp the truth must have been known, that all 15 of the Cremona documents which the plaintiff sought, and many more, had been destroyed in 1998 …

In relation to the intention behind the so-called document retention policy, there is a self-serving policy document setting out that the purpose of the document retention is:

… not a way of ensuring destruction of 'damaging' records or retention of 'helpful' records. Records will be treated as series, in large blocks. It is not the intention to 'spring clean' the files to remove or retain records on a selective basis. Any such action would prevent the Program from passing judicial scrutiny.

As the judge found:

The paragraph constitutes a clumsy and self-serving attempt to declare innocence but at the same time, in my opinion—

the judge's opinion—

demonstrates the clear purpose behind the program.

The judge continued:

The determination to destroy all possible damaging material was so great that notwithstanding legal advice that an adverse inference could be drawn from the process of destruction, the programme proceeded anyway.

The judge concluded that the 'destruction of records and the failure to keep a record of what documents were held, and when and when they were destroyed' caused significant difficulties to the plaintiff's case. On that basis, along with many others, the case against British American Tobacco was upheld, their defence was struck out, and Rolah McCabe became one of the first Australians ever to be entitled to an award of damages for her terminal lung cancer.

In the interests of full disclosure it's appropriate to also say that Rolah McCabe's case was later overturned on appeal, but nothing will ever take away from her and her family those initial findings of the trial judge, in which it was very clear that tobacco companies went to great lengths to destroy documents based on self-serving advice upon which to further their case. That gives you a flavour of why, in my view, it is entirely appropriate to have the position, as ought be taken by everyone in this place—I'm sad that it is not the case—that we should be not having a bar of taking a single cent from a tobacco company in order to further one's ambitions to make a contribution in this place.

That case preceded another landmark case. Again, it is an enormous privilege and honour to be able to stand in this place and place on record the fight and tenacity demonstrated by these brave plaintiffs who died as a result of their addiction. The other case was Ellis as the executor of the state of Paul Cotton against the State of South Australia and others. This was a case in which a lovely, hardworking, knockabout bloke called Paul Cotton, who had a couple of kids and a partner, Teresa Ellis, was exposed to asbestos, but he was also hopelessly addicted to tobacco. He contracted lung cancer. He died very quickly, leaving behind a very young family of three children and a loving and devoted partner, Teresa Ellis, who I had the privilege of representing myself. The case was brought against the asbestos companies and also against his former workplace, on the basis that his exposure to asbestos was sufficient to have caused or played a role in him contracting his lung cancer. It was an enormously complicated epidemiological argument about the multiplicative or synergistic effect of exposure to asbestos and tobacco. In this case the asbestos companies and the state fought tooth and nail against a widow who had barely a cent to her name, that I had the great privilege of representing on a pro bono basis. I will never forget this case for as long as I live. It took five weeks for the trial against three defendants. One of the defences that was waged against her, in terms of her quest for compensation, was that Paul Cotton contributed to his own death as a result of his tobacco smoking or voluntarily assumed the risk of doing so. That case was important in relation to the insidious effects of addiction and the role that that plays so that it isn't necessarily appropriate to simply say that, in all cases, people can just have the strength and willpower to kick the habit. Sure, that happens in some cases, but it doesn't happen in all. This case demonstrated, for the first time, that the addictive nature of smoking tobacco places the risk levels of those who want to give up but just can't into a very different category than one of simply an objective test.

I'm very pleased to say that in that case the claim by the defendants that Mr Cotton voluntarily assumed the risk of smoking, and therefore he shouldn't be compensated for the asbestos-related lung cancer, failed. However, I'm also pleased to say, in terms of a reasonable approach, that the trial judge in that case did find that at the point in time in which Mr Cotton received medical advice from his doctor that he should start giving up smoking, in the point of time where he failed to do so, and from that point onwards, his addiction did play a role. At paragraph 739 of his reasons the trial judge said:

I therefore accept that the issue of whether or not Mr Cotton's smoking may amount to contributory negligence must be answered on an objective basis without regard to any actual addiction or dependence upon nicotine, however real that may be in fact, as it appears to be in his case.

That's important. It's important, again, because the courts recognise that the insidious nature by which these tobacco companies prey upon these individuals who get hooked on cigarettes and have a devil of a time getting off them flies in the face of any pretence to be an upstanding or good corporate citizen.

It is entirely appropriate that we maintain a firm view and do not tolerate in any way, shape or form any appearance or perception that this place should be tainted by the same stain that these tobacco companies inflicted upon hundreds of thousands, if not millions, of Australians and those around the world who, as a result of their hopeless addiction, are heading perilously towards tragic illness or death. On that basis, I am very proud that we have maintained the rage in terms of refusing those donations.