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Wednesday, 9 November 2011
Page: 8741

Senator HUMPHRIES (Australian Capital Territory) (18:09): It is a pleasure to be able to rise today to speak about this legislation and to indicate, as Senator Fierravanti-Wells has done before me, that the Tobacco Plain Packaging Bill 2011 has the strong support of the coalition. Having said that, I have to express some disappointment at the way in which the legislation has been handled, and in particular the way in which the legislation has been linked to a second, quite late piece of legislation in this package—the Trade Marks Amendment (Tobacco Plain Packaging) Bill 201—and the way that this has been played out so as to permit the minister to attempt to characterise the coalition as being opposed to the measure to introduce plain packaging.

It is clear from the record of the coalition over many years that we fully accept the need for public policy to be strongly couched to defeat the harm done by tobacco in this community. Our record demonstrates very amply that that is the case.

Senator Feeney: So you'll be saying 'no' to those donations!

Senator HUMPHRIES: When you deal with your addiction to donations, Senator Feeney, we will deal with ours.

The coalition has a proven track record with regard to tobacco control and reducing the rate of smoking in Australia. In fact, it was Sir Robert Menzies who first introduced a voluntary tobacco advertising code for television back in 1966. In turn, it was the Fraser Liberal government in 1976 that first implemented a ban on the advertising of tobacco products on TV and radio. That was a mandatory ban. Dr Michael Wooldridge, the health minister in the Howard government in June 1997, announced what was at the time the biggest ever national advertising campaign against smoking. It had a federal government spend of $7 million over two years to limit—

Senator Feeney: An information campaign?

Senator HUMPHRIES: It was an information campaign, that is right, to reduce people's exposure to tobacco and to give people information about how to quit. They were very worthwhile efforts. They obviously did not reach some in this chamber but it was a very important measure to make Australians less likely to stick with the cigarettes.

Senator Feeney: Viciously personal!

Senator HUMPHRIES: Indeed! That's me! The Howard government reformed cigarette taxation from a weight based taxation regime to a per-stick excise in 1999. It was the Howard government, with Tony Abbott as Minister for Health and Ageing, that introduced the graphic health warnings on tobacco products in 2006. Those are not the actions one might expect of a government and a party that somehow thinks that the actions of the tobacco industry should be protected in the Australian community.

In 2009, from opposition, we proposed an increase in the tobacco excise. That was obviously a good idea, because it was not very long afterwards that the government—I think it was the Rudd government—picked up that very idea and ran with it!

Those measures, over a period of 30 or 40 years, paid dividends to the Australian community. In fact, the coalition, whilst in government, presided over the biggest decline in smoking rates. Under the coalition government the prevalence of smoking declined from 21.8 per cent in 1998 to 16.6 per cent of Australians over the age of 14 by 2007. So, in under 10 years there was a reduction from 21.8 per cent to 16.6 per cent. That is a pretty impressive reduction. This is amongst the lowest smoking rates in the world. The decline in smoking rates in Australia—a fall of 40 per cent for men and 44 per cent for women between 1989 and 2007—was amongst the biggest in the OECD. The fall in smoking rates amongst women, in fact, was the biggest in the OECD. So to suggest that we are soft on tobacco control is just plain nonsense.

I can also say, on a personal level, that in 1990—doesn't that date me?—as ACT Minister for Health, Education and the Arts, I introduced legislation into the ACT parliament to ban all environmental advertising of tobacco in the ACT except at point of sale, and to prevent tobacco companies from providing sponsorships for cultural or sporting events anywhere in the territory. Having said all of that, I think it also needs to be put on the record that, having reduced the smoking rate in Australia to 16.6 per cent, eliminating that last 16.6 per cent will be very difficult indeed.

Senator Feeney: Eliminating! Are you going to kill us?

Senator HUMPHRIES: If that is necessary, Senator Feeney, we might think about that, but it will be very difficult. Short of killing the smokers it will be very difficult to achieve. None of the measures, none of the policy levers, available to government at this point in time, frankly, are easy quick fixes or silver bullets. It is true, I think without doubt, that plain packaging of tobacco products will make a difference. It is also important not to exaggerate the extent to which it will make a difference. Unlike billboards, ads on TV, ads on radio and the sorts of things most of us experienced as children, the penetration of tobacco packets is a much, much smaller part of the once all-prevalent imagery of tobacco products around this nation.

I do not doubt that we will make a difference with this legislation, but I sincerely doubt that with this measure alone there would be a huge reduction in tobacco use in the next decade or so. This is not to in any way suggest that there is anything wrong with this measure. I agree with Senator Faulkner who said that preventing even one child from picking up a packet and lighting the contents is a victory and needs to be pursued. If we can do that, we are doing some good by passing this legislation today. But let us not work ourselves into a frenzy about how much we achieve. After this legislation is passed there will be a lot more hard work to be done in reducing the deprivation caused by tobacco in this community.

I said that I was concerned about aspects of this legislation. I have to say that I remain concerned. We are in relatively new territory here, as Senator Di Natale said, although there are studies suggesting that there is a persuasive effect in the way in which tobacco packets are designed. It is also true to say that, to date, no nation has yet adopted the measures that we are embracing today. So, we do not know for sure what the effect of them will be either in terms of users or potential users of tobacco products or in terms of the other implications of this legislation.

For example, it has been suggested by the tobacco industry that the plain packaging regime could constitute the acquisition of property on other than just terms in contravention of section 51 of the Australian Constitution. I personally do not think there is any basis for that criticism. Preventing the use of a trademark in most circumstances is different to taking it from somebody and using it to somebody else's advantage. But I do note that in section 15 of this bill before the parliament the government has taken the precaution of saying that the bill would not apply to the extent that it could cause acquisition of property on other than just terms in the language of section 51 of the Constitution. In other words, they are sure it does not have an implication or a resonance with respect to section 51 but, just in case, they are going to make sure the bill effectively collapses if section 51 comes against it and prevails.

I am also concerned about the extent to which the government has liaised with the small business and retail sectors about the effect of these changes on the process of selling what is still, perhaps regrettably, a legal product in this country. Having made those reservations, I repeat that the coalition supports measures to improve tobacco control, supports measures to discourage the use of tobacco and fully backs the Tobacco Plain Packaging Bill 2011.

When it comes to the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 the story is somewhat different. As I said, when the tobacco plain packaging legislation was released in draft or consul­tation form in April there was no trademarks amendment bill released at the same time. This bill emerged only when the legislation itself was tabled in the parliament and came as a surprise.

The problem with the bill is that it contains what is known as a 'Henry VIII clause', which is a clause that allows a minister, after a law has been passed by the parliament, to come back and unilaterally as an individual make a decision to amend the law passed by the parliament. That is quite an extraordinarily broad power. It is a power that this and every other Western parliament has hesitated long and hard to enact in law. It is a provision which appears in very few laws of this country either at the state, territory or Commonwealth levels. That is because it is generally an anti-democratic provision that allows laws to be made without the proper process of parliamentary scrutiny. That is why it should be avoided.

The government has introduced this Henry VIII clause on the basis that it believes there may be problems with the regime with respect to the use of trademarks, particularly with respect to international agreements to do with trademarks, and wants to protect its plain packaging regime by ensuring it can swiftly reorganise the framework of the Australian trademark law to prevent this occurring. The fact that the government needs to take this precaution may be, itself, an indication of the haste with which this has been done and the lack of full consultation with affected parties. The point to make here is that the generally accepted premise for the use of Henry VIII clauses is that they should be used only when there simply is not a viable alternative if something drastic, urgent and quite unsatisfactory is about to happen to a section of the community and if such a clause did not exist in legislation to allow significant harm to be avoided that is facing that section of the community. That is not the case here.

If the government discovers that some element of its plain packaging regime falls down because of an international agreement or some other provision of the trademarks regime, it has the option of coming back to this parliament and amending either the plain packaging laws or the trademarks laws to deal with this issue. It has that option. It is a little hard to argue that there is a burning urgency to do this and that it has to be done immediately. We have had the packaging of tobacco products going on for well in excess of 100 years. Another few weeks between parliamentary sittings will be neither here nor there, so the government's case for needing this Henry VIII clause is very hard to see and it is tempting to conclude, as I think others have in this debate, that what the government is doing here is creating a bit of a wedge—that if the government can create the impression that the coalition is not fully behind this legislation then it somehow gains some small advantage over the coalition because it refuses to support some element of its anti-tobacco package.

That is a pretty unprincipled approach to this issue. It appears that this is a government—

Senator Fierravanti-Wells: What do you expect?

Senator HUMPHRIES: Well, indeed, what would I expect? I suppose Senator Fierravanti-Wells is quite right. That a government as desperate as this government would stoop to using the sacred ground of tobacco control to attempt to score a political point we should not be surprised about, but it is still worth putting on the record that this coalition, particularly this Liberal Party, have always opposed measures which diminish the democratic process and which make it harder for the parliament to scrutinise the laws being made that govern Australians. We have therefore always viewed Henry VIII clauses with great trepidation and concern, and our consistent position on such provisions is not going to change merely because the government has tied its use of a Henry VIII clause into a patent public good in the form of the plain packaging regime.

So let us hope that in a somewhat less non-partisan fashion the government is able to proceed with measures for tobacco control. Let us build some bipartisanship around these things which once existed and which essentially still do exist, I have to say, with respect to this legislation with the exception of the second bill. It is extremely important that we today capitalise on the advantages obtained by this new plain packaging regime. It would be good to monitor its effect. It would be good to confirm that it does make a difference even though, as I have said, I think that some have exaggerated the extent of the difference it will make, and it would be good to use this as a further basis for good, empirical evidence of what tobacco control at the appropriate level and on the appropriate scale can do to wind back rates of smoking in this country and the rest of the world. If this provides a model or template for other countries to follow, Australia will have done something very significant and very worth while. To that extent, I commend the Tobacco Plain Packaging Bill to the House but cannot take the same approach with respect to the trademarks amendment bill.