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Wednesday, 24 August 2011
Page: 9200


Mr ALEXANDER (Bennelong) (13:28): I rise to speak on the plain packaging in reinforcement of the coalition's position to support the Tobacco Plain Packaging Bill 2011 with amendment, and to oppose the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I speak on this legislation as someone with a lengthy track record on the promotion of health, fitness and preventative medicine, and also as a proud member of the Liberal Party that has a strong history and proven track record on the issues of tobacco control and reductions in smoking rates in Australia.

The first tobacco advertising code for television was introduced by the very first Liberal Prime Minister, Sir Robert Menzies, in 1966. Ten years later Liberal Prime Minister Malcolm Fraser introduced a ban on television and radio advertising of tobacco products. More recently, the Howard government, under the stewardship of the member for Warringah as Minister for Health and Ageing, introduced the graphic health warnings on tobacco products, reformed cigarette taxation to a per-stick excise, and presided over the biggest decline in smoking rates whilst in government. Under the coalition government, the prevalence of smoking by Australians over the age of 14 declined from 21.8 per cent in 1998 to 16.6 per cent by 2007, giving us one of the lowest rates of smoking in the world and the largest fall in smoking rates amongst women across member countries of the OECD. I make this point in recognition of the Labor government's misleading public relations campaign to paint the coalition as soft on tobacco companies. After all, it was the coalition who first proposed an increase in the tobacco excise in 2009. This measure was soon adopted by the Rudd government.

The issue of tobacco control is not a religious matter. The legislation being debated today does not call for a philosophical position on 'you are either with us or against us'. There is total agreement and acceptance in this place and in the broader community that tobacco products are bad for one's health. Cigarettes are an addictive product that will hasten the likelihood of an individual contracting one of our nation's greatest killers: heart disease, lung disease, emphysema or other related diseases. These facts are not challenged. This is not the issue that is up for debate today.

Due to the addictiveness of nicotine, there is no silver bullet or magic potion that can make a smoker see the light, embrace the error in their ways and never smoke again. One of the enduring errors made by well-intentioned anti-smoking individuals and institutions is a lack of genuine empathy for the difficulties that a smoker faces in freeing themselves of this awful addiction. All smokers know the habit is bad for them and most of them wish they had never started. Changes to advertising and the addition of warning labels can assist in getting the message out and preventing the historic imagery of heroes, from Frank Sinatra to the Marlboro Man, with a cigarette in hand. These changes can affect those at the edges, but the science is also clear: long-term heavy smokers will smoke their cigarettes regardless of the colour of a package or the lack of pictures of their favourite stars doing the same.

Throughout this debate we must keep in front of mind one essential fact: the manufacture, retail, purchase and consumption of cigarettes are all legal activities regulated by the government and contribute considerably to the general revenue through excise duties. Until legislation passes this place to prohibit these activities, as we do with other recreational drugs, we need to be very careful that we do not infringe upon the commercial rights of those pursuing a legitimate business activity that we permit through regulation. Certainly, this activity may be demonised and lead to considerable financial burdens on society through our generous public health system but, regardless, it still remains a legal business activity. For those ardently campaigning for any form of punitive measure to be applied on the tobacco companies, a debate on prohibition may well be a more appropriate discussion, but that is not the issue at hand today.

A reduction in smoking rates, particularly amongst our youth, is a worthy goal to which all members in this House aspire. The question that remains is whether this particular bill is the right means to that end. As I stated earlier, there is no silver bullet to resolve this question. It is clear from domestic and international experiences that a concerted focus and a well-managed tobacco control strategy is the best way to achieve this goal.

There is a fear amongst many that this particular legislation measure, like so many other initiatives by this government, is designed more towards the attainment of headlines of action and creating the perception that something is being done on this issue rather than acting as a legitimate exercise in reducing smoking rates in our country.

There have been some legal concerns raised about this bill. These relate to the legislation equating to an acquisition of property on other than just terms, which contravenes section 51 of the Australian Constitution, article 20 of the Trade Related Aspects of the Intellectual Property Rights Agreement, to which Australia is a party, through to World Trade Organisation claims that 'The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements.' There is dispute on whether this legislation is covered by the health exception to this agreement. Also, is it a violation of the 1993 Australia-Hong Kong investment treaty?

The coalition has been forced to accept on face value the minister's claims that the legal advice surrounding her plain packaging proposal is robust as the government has refused to provide us with a copy of the legal advice on which these assertions are based. I can only assume that the government does indeed have some doubts about the robustness of the advice as they have felt it necessary to include a specific provision in this bill to assert that it will not apply to the extent that it will cause acquisition of property on other than just terms under section 51 of the Australian Constitution.

The government's consultation with small business and retailers on this legislation has been found to be lacking, despite the sizeable regulatory and administrative burden that this will put on these already struggling small businesses. I have received countless amounts of correspondence from affected retailers in my electorate of Bennelong who are concerned about the way this proposed legislation will impact upon them, from stock management through to the point of sale. The obvious concern with generic plain packaging is the difficulties this will give the small business owner in differentiating between packets that look almost identical. This issue has not been addressed by the government and will be assisted by the coalition's amendments, and I will talk to those shortly.

Another valid concern arising from the change to plain packaging is the ease with which counterfeiters will be able to imitate and mass-produce generic plain packages. Australia has a strong reputation on customs and border control on this issue, with 743 tonnes of tobacco and 217 million cigarettes seized by the Australian Customs and Border Protection Service over the past three years. Articles 15 and 20 of the World Health Organisation framework recommend the implementation of a track-and-trace regime for tobacco products. The government have failed in considering these issues in this legislation, instead preferring the tobacco companies to manage their own tracking of tobacco products on a voluntary basis, despite this being in contravention of articles 7.2 and 7.12 of the draft protocol to eliminate illicit trade in tobacco products which states that the obligations of each party 'shall not be performed by or delegated to the tobacco industry'. In short, the government has completely ignored the counterfeit tobacco issue which will no doubt arise from this legislation. Any increase in counterfeit tobacco means less tax revenue to pay for the health implications that result from tobacco smoke and will therefore enable this to be yet another piece of government legislation that weakens our nation's economic position.

As is common practice with controversial and far-reaching legislation like this, the two bills being discussed today were referred to an inquiry. Despite the coverage of these bills across a range of policy areas, the House of Representatives Standing Committee on Health and Ageing was the only committee to inquire into this bill, and it focussed solely on the health impacts of this bill. The committee did not deal with the impacts on small retailers or on illicit tobacco, leading the chair of this committee, a government MP, to make a specific suggestion that concerns over these issues should see these bills referred to other committees as he did not have the scope to look into these matters. Instead of following the correct processes of inquiry and a reasonable amount of consultation and transparency with stakeholders and the opposition, the minister has instead sought to politicise the issues surrounding plain packaging and tobacco control for her own political gain.

The Minister for Health and Ageing has promoted the attitude that if you have any concerns with this bill then you must be in the pockets of the tobacco companies. This is a reprehensible approach to take to a serious piece of legislation, and shows the disrespect that this government has for the intellectual capacity of the common voter. I can certainly declare from a personal perspective that the last time I came even close to a financial or professional association with a tobacco company was when I competed in the Marlboro Australian tennis open during the seventies.

Mr Matheson: You won that?

Mr ALEXANDER: Semifinals. According to this minister's definitions, that would place me squarely in the pockets of big tobacco. It is an irony not lost on me that this is the very same minister who was found to have accepted hospitality from big tobacco at the Australian Open championships just a few years ago.

As I mentioned earlier, while the coalition is broadly supportive of the intention of this bill, the devil is always in the detail and we have some concerns to which we will be moving an amendment to improve this legislation. This relates to concerns raised by small business during consultations we have had with the industry—concerns that have fallen on the deaf ears of this government. The coalition's amendment to the Tobacco Plain Packaging Bill will allow the use of tobacco companies' trademarks on one of the two smallest outer surfaces of a cigarette carton. This is designed purely to assist in the retailer's ability to effectively manage their stock that often consists of cartons piled high in a storage facility. This trademark or logo will not be added to the individual packets, which is what the consumer purchases, but just to the packaging of the carton that contains a number of packets, usually eight or 10. This is a common sense initiative. It is an improvement to this legislation that cannot be seen in any way to adversely affect public health and it should be supported by this government.

The second bill, the Trade Marks Amendment (Tobacco Plain Packaging) Bill, was first seen by the opposition when it was introduced into this House by the minister on 6 July. Contrary to standard practice, it was not flagged or issued as part of the government's exposure draft or the legislation's consultation paper that was released in April. As a result the coalition has referred this bill to the Senate Standing Committee on Legal and Constitutional Affairs to consider the specific provisions, to investigate any issues they create and ultimately to consider their constitutionality.

The grave concern we have for this amendment bill is contained in clause 231A, known as a Henry VIII clause—an exceptionally uncommon clause that gives the minister the power to override the legislation that has been agreed by parliament, through a regulation that requires no parliamentary scrutiny. In this particular scenario, a regulation made by the minister could override the Trade Marks Act, going against the basic legal principle that an act trumps regulations. In the past these clauses have only been used when there are no alternatives, and the lack of inquiry or scrutiny into this rushed legislation has certainly not convinced the coalition that this is the case. The trade marks amendment bill is not a necessary piece of legislation for the government to continue to implement its plain packaging agenda, and therefore we will be opposing this particular bill. We do not agree with the minister being legislated to receive the power to alter or remove trademark rights in relation to the government's plain packaging legislation by overriding the Trade Marks Act through regulations.

As I stated at the start of this speech on this very serious issue, both I and the coalition more broadly have a proven track record on the issues of tobacco control and reductions of smoking rates in Australia. Yet the importance of an issue should not be used as an excuse for the rushing through of ineffective and inappropriate legislation that is designed to create a headline rather than to achieve a genuine outcome. The best legislative response on this matter will be one based on consultation with stakeholders, particularly with the retailers and small businesses directly affected, and not on a grab for power so the minister can fix her mistakes later on.