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Wednesday, 24 August 2011
Page: 9192


Mr HAWKE (Mitchell) (12:59): I rise to make a contribution in this debate on the Tobacco Plain Packaging Bill 2011 and Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 following on from the member for Shortland. Sometimes I think I am cursed to follow the member for Shortland. I do think this legislation is bad law. I do think there has been no credible argument made by the government about how plain packaging will reduce the rates of smoking in Australia today. For us as a parliament to take away the intellectual property of legal corporations and entities in Australia today, I think we ought to pause and think very seriously about the ramifications of doing this sort of thing by law.

I refer to what has happened in Canada. Yes, it is true that we are the first jurisdiction looking at implementing plain packaging in the world today. Canada considered this in detail. Indeed, in 1995 when a health study When Packages Can't Speak:Possible Impacts of Plain and Generic Packaging of Tobacco Products appeared, the government considered it and there was some evidence that there would be some change. However, the Canadian government did not proceed with plain packaging. They believed it would violate Canada's international trade obligations with respect to intellectual property. Despite the fact that the government did not proceed with plain packaging following the consultation, during the parliamentary debate the Minister of State for Public Health, Gillian Merron, noted that the government chose in 2009 not to proceed with plain packaging because of lack of convincing evidence. I quote:

No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. Given the impact that plain packaging would have on intellectual property rights, we would undoubtedly need strong and convincing evidence of the benefits to health as well as its workability, before this could be promoted and accepted at an international level ...

Amen to that. She makes great sense. This is an intellectual property issue. We have a serious issue before us today because there is no proven evidence that demonstrates this will have any impact on health—none whatsoever, and certainly none that is convincing.

Listening to the arguments of the Labor Party backbench is mind-numbing in itself. They do not speak about the impact of alcohol, which kills more people in Australia every day. They do not speak about illegal drugs. We all know, for example, that alcohol will increase the rate of loss of brain cells. Every single drink has a negative health impact on you, yet there has not been a word about it from the Labor Party. Listening to the ALP backbench trying to explain how their bad legislation will work is enough to make you want to go back to your office and lose some more brain cells, because I can tell you, Madam Deputy Speaker, this is badly thought out law.

From any angle you approach this question, it is obvious that the government is engaged in a political question and not in a serious attempt to improve health in Australia today. They have railed here today against the nanny state campaign that is being run against them. But that nanny state campaign is tapping into something that I regard as extremely important going on in Australia today.

The Minister for Health and Ageing is the flag-bearer of this government for the nanny state. I have a confession to make to you, Madam Deputy Speaker, and to this House: I do not like the term 'nanny state'. I think 'nanny' is quite a benign term for what we are really talking about, which is the government's intentions and what is actually going on with its series of ill-thought-out and badly planned legislative responses to challenges that it faces. The alcopops-increased taxation produced a spike in the sale of hip flasks in Australia by 21 per cent. The hip flask industry thought all its Christmases had come at once because this government came up with an ill-thought-out, badly proposed piece of legislation. How much money do we think has actually been returned to alleviate the impact of alcohol on health today? If we looked into that, I wonder what we would find.

There is not any suggestion in this legislation before us today that there will be any impact on smoking rates. The member for Greenway said we need to do everything we can. If the government wanted to do everything it could to reduce the rate of smoking it could ban it today; it could outlaw this product. There is a good reason why governments will not do that and why the minister for health, who repeatedly talks about this product killing people, will not do that. It is because of the billions of dollars of revenue collected from tobacco excise. In fact, there is a net benefit to the health system from the money collected from tobacco excise compared to the money expended in dealing with problems created by tobacco.

I do not support smoking and I do not smoke myself, but I do support the rights of Australians to do what they like in their free time within the law. This is a legal product. I say to the member for Greenway: when we were on the stage together in front of 900 workers at the Blacktown Workers Club she should have made her remarks about tobacco plain packaging there. There was a woman there with a sign that said, 'I am an adult. I do not need the government to make my choices for me.' Amen to that, because that woman with her sign and those workers at the Blacktown Workers Club all know what is going on in this country today, and that is the scope of government is going too far, intruding into the lives of ordinary Australians. This legislation is another good example of it.

How will plain packaging reduce the rates of smoking amongst young people? How will it do that? Nobody on this backbench has told us. Not one person has advanced an intellectual argument about how this will practically work. That is because there is not one. What we are doing in Australia today is paying committees and bureaucrats to determine if the drab and dull colours and the sizes of different words will have an impact upon people's choices in smoking, ignoring the fact that all cigarette packets are already concealed behind counters; they cannot be seen. There is no tobacco advertising in Australia today. This is not a strong, powerful step of a government committed to actually doing something about the rate of smoking in Australia today. Every member of this place knows this is a political wedge by a government desperate to change the conversation from anything that is dragging it down, which is basically its whole legislative agenda.

I have grave concerns about the provisions of this bill. When you look through it you see what it is attempting to do with the different divisions. Chapter 4 refers to powers to investigate contraventions of this act and chapter 5 refers to enforcing compliance with this act. I want to stand up for those small and independent retailers all around the country who will suffer the detrimental impact of this bill. Once again, we are going to ask the very small business sector to handle the consequences of a piece of legislation that is ill thought out and will not achieve its objectives. Once again, we stand in this place with a bad attempt to do very little on a question that will affect the ability of small business to survive. Not only do a lot of small petrol stations rely on trade from people coming in to buy cigarettes, not only do small corner shops rely on them, but a lot of small businesses in this country get significant proportions of their trade from people who buy cigarettes.

A study by Deloitte Australia, an independent accounting firm, shows us convincingly and compellingly that the outcome of this legislation will favour major retailers and major supermarkets. I take that very seriously. Once again, we are hurting the people at the very end of the equation that have nothing to do with this, the small business owner, with no thought and no regard to how their operation will continue to function. 'Just deal with it somehow' is the approach of this government to small business on every occasion. They do not take into account stock management, shrinkage, the loss of customers and the loss of business. The Alliance of Australian Retailers is perfectly right to stand up for itself and point out that this is a violation of its rights. Once again, this is a government that has a careless and utterly thoughtless approach to the carnage it creates in the economy.

The intellectual property questions relating to this bill will be tested at law. We have heard from tobacco companies that there will be legal action taken in relation to our WTO obligations—and, yes, Australia has world trade obligations. Of course these should be tested at law. It is not outrageous that a company having its intellectual property and branding removed by the government should take this to the court and have it tested. In fact, when you look at the Paris convention in 1883, the rounds that the WTO has been engaged in around the world, the North American Free Trade Agreement and all the different agreements and pieces of legislation around the world protecting intellectual property, you can see that this is a serious question for consideration. The government will have to demonstrate the efficacy of this proposal in court—and so it should under WTO obligations.

No government should be allowed to rip property from any corporation or any entity without using just terms acquisition. I would certainly stand up for the right of any farmer, any landholder and any property owner in this country not to have a government remove their property rights, whether they be physical or intellectual property rights, without just compensation. Yet we are proposing a bill here today that is in effect removing the intellectual property rights of these corporations.

If any member of this place thinks that this is the last time we will see such a proposal, I think that is complete and utter nonsense. I warn every member here: we will see this again. Not only will the public health lobby move on alcohol and fast food if this works but they will continue to seek the removal of intellectual property rights from corporations engaged in the production of other things in our society today including fast food and alcohol. I do not believe that that is the right approach either.

In fact, the whole public health mentality of the government is ridiculous. The health of people relates to individuals. There is the person's individual health; there is no such thing as the public health. You cannot give a pill to the public health. The Labor Party's backbench is trying to say that if we pass plain-packaging legislation cancer will be removed from Australia—a completely ridiculous contention. There is no law that we can pass in this place to remove cancer. There is no law we can move in this place to say life is not dangerous. There is no law we can move to prevent bad choices by individuals in our economy. There is no law we can pass saying, 'Be healthy.' There is no law we can pass in this place to say to people that they will live a long and prosperous life. In fact, we have a better system in Australia than many other free countries in the world and we ought to recognise that. People are free to make their own individual choices—good ones and bad ones.

Yes, I think we should pass laws where smoking impacts upon other people. Yes, of course we should do those things to ensure that when you engage in an activity you are not having a negative impact on someone else. But, if the government determines that this is a legal product, which it does; and if it determines that you are allowed to manufacture it, which it does; and if it allows the industry to employ, produce, manufacture, sell, distribute and, yes, then taxes it, it ought not to go in there and say, 'Well, at the end of the day we have got a committee of bureaucrats that the Minister for Health and Ageing has put together and they have decided that your product is going to be olive green, because we do not like your product.' That is exactly what has happened in Australia today.

I do not think that is right. All the important decisions have been made. When the minister for health says, 'This kills people,' if she believes that this kills people, she should come in here and propose a law banning the product. That is what she should do. I have got news for the minister for health and the government: life kills people. Life is a dangerous activity. There are no laws that we can pass to prevent that. There are no laws we can pass to change that. And it is disturbing to listen to the Labor Party backbench attempt to articulate some sort of argument that having a drab colour on a packet of cigarettes will prevent cancer or stop people dying. There are all sorts of stories. There are very compassionate circumstances and they are very difficult for the people involved, but a law will not remove those circumstances from happening. It will not alter them. People will still make bad choices. People will still be free to do those things, and so they should be in a free society.

There is a way to improve the public health and that is by making people responsible for their individual health choices, making them more responsible for their own health. That must be the focus of good and effective government policy. The criticism I have of this legislation is not that I am pro smoking and want to see smoking everywhere in Australia today. It is that there is no evidence based policy that suggests that this will have an impact on the rates of smoking, yet that is the reason stated in the objective of this bill. There is no argument credibly advanced by those opposite that this is the approach that will stop smoking.

There are ways of stopping smoking in Australia today, but of course this is the misnomer of Australian politics in this sort of question—the government is addicted to the revenue. The government wants this revenue and it cannot say no to it. That is the hideous position we are in in passing a law removing the intellectual property rights of corporations in this country, legal corporations providing legal products: because we cannot live with a situation where the government takes the revenue and will not do anything about a product that the health minister herself says is killing people.

I will also say in the final minute that I have that I reject this approach to law. I think it is poor. I think that it will lead to more unintended consequences for small retailers, and small businesses all over the country will suffer as a result. It will not have a great impact on smoking at all. It now threatens to undermine one of the key tenets of the rule of law in our society today, and that is property rights. Without property rights, there is no law—that is a famous quote—and if we attack intellectual property rights in a way that is not justified, and I do not believe it is justified under this legislation, we are undermining the rule of law in our country today and in a way, I think, that will not produce better health outcomes for Australians. So why are we doing it?