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Wednesday, 24 August 2011
Page: 9252


Mr IRONS (Swan) (16:56): I rise this evening to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Over recent decades there has been strong bipartisan support in this chamber for reducing the rate of smoking across Australia. Since the 1950s, research has highlighted the negative health effects of tobacco smoking and both parties in this chamber have resolved to make people aware of these dangers while at the same time not moving to restrict freedom of choice of Australians who decide to smoke.

That is why it is surprising and disappointing that over the past few months the Minister for Health and Ageing has, through her conduct in this chamber, tried to convert this public health issue into a partisan political issue. Her attempts to attack the coalition have fallen flat, partly because of the coalition's proven track record on tobacco control as a public health issue. This began with Robert Menzies' introduction of a voluntary tobacco advertising code for television back in 1966, which was converted to a compulsory radio and TV advertising ban by the Fraser government in 1976.

More recently, in 1997, as the minister will no doubt remember, the Howard government announced what at the time was the biggest ever national advertising campaign against smoking, worth $7 million over three years. In fact, it was the Howard government and Tony Abbott as the then minister for health who introduced the graphic health warnings on tobacco products in 2006. These coalition public health measures have had a significant effect. Statistics show that the coalition presided over the biggest decline in Australian smoking rates whilst in government, with prevalence among Australians over 14 falling from 21.8 per cent in 1998 to 16.6 per cent in 2007. This has contributed to Australia having the third-lowest smoking rate in the OECD, behind only Sweden and the US.

What is the Labor party's record on this issue? I think it has increased cigarette taxes a few times. Hardly a proud history on such an important public health matter and certainly not a history good enough to give the Minister for Health and Ageing the right to lecture the coalition. In fact, while the WA smoking rate fell from 22.6 to 14.8 per cent between 1998 and 2007, Australian Institute of Health and Welfare figures show that since Labor took office in 2007 the smoking rate has risen nearly one per cent. The minister's attempts to politicise smoking appear to have backfired after the revelations of her own dealings with big tobacco companies. This has led her to tone down her rhetoric in recent weeks and we hope that she will now work in a more constructive, bipartisan manner.

Other members contributing to this debate have commented on the lack of transparency from the government during its formulation of this policy. For example, the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 suddenly appeared last month without any real explanation as to why it was needed. Unfortunately, there has also been evidence of this lack of transparency in the government's attempts to rush an inquiry through the House of Representatives Standing Committee on Health and Ageing, which was charged by the House with reporting on the two bills in question. The coalition was only made aware of the tabling of this report on the morning of the day it was scheduled to be tabled in the committee and there were a number of procedural issues during the process. There has also been criticism raised that the committee did not accept its wide-ranging brief to consider the impacts of the legislation on small retailers or the impacts of illicit tobacco. The chair has now advised in his report that he believes these matters should be considered by other committees.

Nevertheless, the government has decided to bring on debate today and, as such, the House is forced to consider the bill without the scrutiny of other committees as recommended by the member for Hindmarsh in the report. So, in scrutinising these bills today we need to consider the issues that have been raised both publicly and through inquiries.

One of the major issues raised to date has been the legal impact of this legislation, with concern centred on the possibility that a protracted legal dispute involving the High Court might develop, potentially costing the taxpayer millions of dollars in legal fees. The first legal question mark hanging over this legislation centres on opinions that this legislation would constitute acquisition of property on other than just terms according to section 51 of the Constitution. I note that in an attempt to ease these concerns the government has suggested in section 15 of the Tobacco Plain Packaging Bill that this 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 second concern floated is that the legislation may violate article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, a multilateral agreement made under the World Trade Organisation on intellectual property. Article 20 states that the 'use of a trademark in the course of trade shall not be encumbered by special requirements', and there is contention over whether the health exception would apply in these circumstances.

The third legal point of contention is that this legislation may violate the 1993 Australia-Hong Kong investment treaty. In response to these concerns, the government and the minister have on many occasions assured the opposition that its legal position on the plain packaging proposal is 'robust' and on 'strong legal ground'. We in the coalition have accepted this assurance at face value because the last thing this country needs is more waste and more debt from a protracted legal dispute from some of the world's wealthiest companies. However, despite the government's reassurances about its legal position, it is clear that the minister has some concerns, particularly in relation to trademarks. The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 has been hastily added to the main bill, after having not been flagged at all in the government's exposure draft or consultation paper of April 2011. The bill contains a Henry VIII clause which allows for regulations made by the minister under an act of parliament to override the act itself. Hence, regulations made by the minister, under the Trade Marks Act, could override the Trade Marks Act itself.

There are significant questions about the constitutionality of this bill and that is why it has been referred to the Senate Standing Committee on Legal and Constitutional Affairs. These clauses are exceptionally rare and only used when there are no other alternatives. It is the view of the coalition that the original plain packaging bill should have been drafted properly to take this into account. There are questions to answer on whether this bill is necessary and whether the minister should be given the power to override the Trade Marks Act through regulations.

I have heard members of the government argue that a trademarks amendment was enacted by the Howard government in 2000 with regards to the Madrid protocol, but I think those members would acknowledge that this was a very different situation, where there was a clearly defined purpose. There is only vague reasoning coming from the government for this particular bill and no concrete justification, which only adds another element of uncertainty to the debate. It has been added without explanation and the government needs to do a better job than this.

As I am a person with small business experience, the concerns of the small business community in my electorate are never too far from my thoughts. I have received phone calls, faxes and letters from many newsagencies and retailers in my electorate of Swan expressing concern over the bills we are discussing today. These concerns have centred around impacts on stock management, point of sale and stock identification, given all packages will look identical. It is certainly the case, as the shadow minister said in his contribution, that the government's consultation with small businesses and retailers over this issue has been lacking.

It is based on these concerns raised by small business that the shadow minister has indicated that he will be moving an amendment to the Tobacco Plain Packaging Bill 2011. This amendment seeks to allow the use of tobacco companies' trademarks on one of the smallest outer surfaces of a cigarette carton in order to help retailers with the concerns raised above. This may also help with a third issue that has been raised by stakeholders on this legislation, which is the potential for increases in the proliferation of counterfeit tobacco in Australia.

With plain packets and no trademarks it has been suggested that there could be an explosion in counterfeit cigarettes, already a problem for Australia, given the Australian Customs and Border Protection Service has seized 743 tonnes of tobacco and 217 million cigarettes in the last three years. It is important to note that the government has ignored the counterfeit issue so far and indeed has made no attempt to address it in this legislation, despite the fact that articles 15 and 20 of the World Health Organization Framework Convention on Tobacco Control recommends implementing a track-and-trace regime for tobacco products and strengthening the legislation against illicit trade in tobacco products.

The government's proposal is to let tobacco companies manage their own tracking of tobacco products, despite articles 7.2 and 7.12 of the draft protocol to eliminate illicit trade in tobacco products stating that 'the obligations of each party of the FCTC shall not be performed by or delegated to the tobacco industry'. Has the government thought this one through? So, in conclusion, the coalition's position is to move an amendment, during the consideration-in-detail stage of the debate on this bill, in support of small retailers.

I will make one more point. No-one in this chamber is proposing to ban cigarettes. It is legal, and the many people who make the choice to smoke should be respected. We had an issue in my electorate of Swan recently where constituents felt they were being treated with disrespect by one of the shopping centres. I made a number of representations on their behalf because I believe it is important that we do not start to vilify smokers.

For the record, I do not smoke and I do not advocate it. I guess because I had a father who smoked and because of peer pressure I took up smoking as a young person. It certainly was not because of the colour of the cigarette packets. I gave up 10 years ago and that was because I became involved in junior sport. I would advocate to anyone who smokes that they should give up as quickly as possible. I gave up, cold turkey, with no support of patches or anything like that, so it is an achievable target.

Anything we do on a bipartisan basis in this House to reduce the smoking numbers in Australia should be commended. So I share the bipartisan goal of reducing the Australian smoking rate but I will always respect the rights of people in my electorate to smoke. I think the minister's shrill rhetoric over the past months has not assisted in this respect. There is no silver bullet and Australia needs a comprehensive tobacco strategy. California in the US, which has a lower smoking rate than Australia, has already been raised by the shadow minister as a good example of this. I congratulate all members for their contributions on this bill.