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Wednesday, 9 November 2011
Page: 8733


Senator FIERRAVANTI-WELLS (New South Wales) (17:31): I was going to continue my remarks about counterfeit and illicit tobacco, the various inquiries and the reasons we will be opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill, but I will leave that to other speakers because I need to correct the record and place on the record the conduct of Minister Roxon, who has behaved like a spoilt and petulant child over the Senate's consideration of these bills. On 12 October she contacted me directly. She rang me to discuss this legislation and whether we could look at shortening the debating times; otherwise we could not get back to this legislation for another month. I agreed with the minister. I was happy to consult with my colleagues and to speak to the relevant shadow minister. Indeed, I have my notes here. I also have notes of my discussions with my colleagues and the various attempts that I made to discuss shortening those times with them. Before I could get back to the minister she issued this press release blaring 'Senate stalls world's first tobacco legislation'. It blames the coalition for tactics ensuring that the legislation would not pass that week. Her press release says:

For the second sitting week in succession, the Senate has failed to vote on the Government’s world first plain packaging tobacco legislation …

She goes on to say that the opposition have 'ensured that the legislation will not pass this week' and that she again 'calls into question our commitment to this landmark public health reform'. This was after I had declared in this chamber that we would be supporting the legislation. Then she said:

The Opposition has twice chosen to stall the Bill by choosing to debate procedural, administrative issues, playing into the hands of the tobacco companies … It is disappointing that Senate tactical shenanigans have today stood in the way of an important piece of public health legislation becoming law.

Senate shenanigans! That is what she calls the orderly processes of the Senate brought on by the Manager of Government Business in the Senate. It is the government, in concert with its alliance partners, that dictates what happens in this chamber. I would have thought that Minister Roxon would have worked that out. She has been here long enough. So do not come in here and blame the opposition for procedural matters that your manager dictates in this place. The hypocrisy of this minister is absolutely breathtaking. Here she is, accusing us again. On that very day, it was Minister Ludwig who called for a debate on changing the hours and varying the business for the morning of 12 October.

In the end, we should not be accused of playing games. We have seen that this week in relation to the carbon tax, and of course the minister herself was elected on a lie. Instead of giving us four days of debate on the carbon tax, the government and the Greens guillotined the debate. Today we learnt that this was done because the Prime Minister turned up at the Carbon Expo this morning. There she was on Sky News, lauding the fact that they have passed this toxic tax.

But let me go back to Minister Roxon. The minister issued her press release even before I had made any attempt to contact her office. I was so incensed by this that I wrote to her. I need to put this letter on the record. I wrote:

Dear Minister,

This morning you called me about passage of this legislation. I note you said you spoke to Peter Dutton yesterday. I undertook to make inquiries in relation to speakers and a possible shortening of debating times. Given the list of speakers from the coalition side, I have made efforts to speak to all of them since your call. I spoke to the last of those on the list at the end of question time. I was about to speak to Mr Dutton about the matter when I became aware of your press release shortly after 3 pm. I also understand that the shadow minister, Peter Dutton, made bona fide inquiries of the opposition leader in the Senate last night regarding passage of this legislation after your office indicated it feared there might not be time to deal with the legislation, given the volume of government legislation yet to be dealt with by the Senate. In light of your media release, I would assume my efforts have been in vain. Indeed, I question the bona fides of your call to me this morning.

She is blaming the coalition when it was the government of which she is a member that had deemed it had other priorities. Of course, that was not good enough for Minister Roxon. On 2 November, she issued another press release implying that the coalition was to be blamed for the delays. She said:

The plain packaging legislation passed the House of Representatives in August 2011 but has yet to pass the Senate. Therefore the Government has revised the implementation timeframes to give industry enough time to make the changes required.

Of course, the legislation passed the House of Representatives and we supported it in the House of Representatives. I would ask Senator Ludwig: could you please explain to Minister Roxon—give her a book about the standing orders in the Senate—that it is up to the manager of government business in this place to order the priorities. It is not the role of the opposition to order and dictate what happens in this place. So I would beg Senator Ludwig, for goodness sake, tell this woman that it is not our fault.

Once and for all, can I place on the record that we support this legislation. We will be supporting the amendments to the Tobacco Plain Packaging Bill moved by the government. We will be supporting the Tobacco Plain Packaging Bill as amended. But we will be opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Indeed, the trade marks amendment legislation has been canvassed very closely by various inquiries into this matter. Certainly, the House of Representatives inquiry was given a wide-ranging brief to avoid multiple committees having to review this bill.

The coalition supports the government's objectives to reduce harm from smoking but that should not be an excuse for overriding principles of good legislative practice, as noted by coalition senators in the report of the Legal and Constitutional Affairs Legislation Committee into the Trade Marks Amendment (Tobacco Plain Packaging) Bill. The first that anyone saw of the trade marks amendment legislation was when the minister introduced it into the other place on 6 July. It was not flagged or issued as part of the government's exposure draft or consultation paper, which was released in April 2011. The trade marks amendment bill was referred to the Senate committee.

The committee considered the specific provisions within this bill and any issues that they create and, ultimately, their constitu­tionality. This bill contains what is known as a Henry VIII clause, and that clause is contained in clause 231A of the amendment. This clause allows for regulations made by the minister under an act of parliament to override the act itself. In this situation, regulations made by the minister under the Trade Marks Act could override the Trade Marks Act itself. This is exceptionally uncommon. This goes against the basic legal principle that an act trumps regulations. As I said, these clauses are exceptionally rare and only used when there is no other alternative.

In the case of the trade marks amendment legislation, the minister did have an alternative. The minister could have drafted her original legislation properly. The coalition does not believe that this bill is necessary for the government to continue to implement their plain packaging agenda. If the minister had taken time to draft the bill properly, the trade marks amendment would not be needed and, therefore, we will be opposing the trade marks bill.