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Wednesday, 9 November 2011
Page: 8748


Senator BOYCE (Queensland) (18:39): I should make two important disclosures before I get going. Firstly, I am currently a smoker. I have been a recovering smoker on a number of occasions but I am currently a smoker. I do not think that is seriously affecting my views on this legislation.

I will add, in another disclosure, that quite recently I went to a dressmaker near my office in Brisbane and asked her to copy a top by an Australian designer. But I made the point to her that the top had been designed and made about eight years ago and the company and the designer were no longer in business. I thought that would be sufficient to extinguish the intellectual property held in that design, given that there was no-one left to benefit from sales of the design. I tell this story to demonstrate that I take the topic of intellectual property and trademarks and patents very seriously and certainly would not, as I know a number of people would, buy copies of trademarked goods overseas or anywhere else.

My concerns around this legislation do not relate at all to whether it is tobacco plain packaging, alcohol, sugary drinks or whatever is the next thing on the list of the do-gooders who think they know best. They relate to the potential damage to the trademarks legislation and the potential unintended consequences of this.

I point out that we have before us legislation—the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011—which has in it a brave new idea that has never been tried before. We have before us legislation that has in it a brave new idea the effect of which no-one knows. We have before us legislation with an idea that has never been legally tried. It may well be challenged and cost the taxpayers of this country millions, if not billions, of dollars and achieve almost no positive outcome—in fact, it would achieve a negative outcome. Does this remind you of any recent legislation that we have had through this parliament? Let's look at the government's Malaysia solution. We have here a version of it, dressed up in different clothes, where the government has had a brave idea to undertake reform of the tobacco industry in a way that has not been tried before anywhere in the world. In fact, in cases where it has been considered and discussed it was decided that it was legally too concerning.

We might all say: 'So what? Someone should be brave and do this.' We already know that British American Tobacco and Philip Morris have clearly stated that they will be going to court if this legislation is passed and introduced—they will take it to court. The compensation that may end up having to be paid following that could run into the billions. Even if the government were to win the case—and certainly we have no idea whatsoever on that; we have competing views—the tobacco companies, which have billions and billions of dollars worth of assets at stake, have employed some very high-powered legal advisers, and their legal advice is that the legislation is not constitutional; it will not stand up in court. And the companies are prepared to use their quite deep pockets to find out.

If the government lose the case, millions and millions of dollars of Australian taxpayers' money will be thrown away in the same way it was with the government's Malaysia solution legislation. What does it matter whether they have the potential to lose the case? It is only taxpayers' money. Why should we be surprised that this is the way the government intend to conduct themselves?

What concerns me mostly here is the evidence given to the Standing Committee on Legal and Constitutional Affairs, of which I am a member, about what this might mean for trademarks and trademarks legislation all up. We have the possibility that this act could lead to the minister having virtually unlimited power with respect to trademarks, not just to do whatever he likes that is contrary to the Trade Marks Act—as is this piece of legislation—but to make regulations about anything at all to do with trademarks.

Part of the explanatory memorandum, which was circulated by the government, made what I regarded as the completely facetious comment that the government's legal position stands on the basis that they are not acquiring the trademarks because they will not be using the trademarks; that they will just be curtailing the use of the trademarks. The government's explanatory memorandum suggests that there will be no problem whatsoever with tobacco manufacturers using their trademarks on letters or on other correspondence, or on boxes they may use to send out their goods. If that is not meant to be facetious, I do not know what is. If it is meant to be a serious comment, it demonstrates an appalling and abysmal ignorance of the use that trademarks are put to by companies.

As Senator Carol Brown has just pointed out and as has been pointed out numerous times, the packaging of cigarettes is currently one of the few places where, since the end of advertising and other promotions, cigarette manufacturers can advertise their trademarks. If it is considered to be important in selling a particular brand of cigarette, I see it as completely unsurprising that a manufacturer would fight tooth and nail not to lose the ability to distinguish their brand from other brands.

We continue to have the point made that we have no evidence whatsoever that plain packaging will reduce smoking. We have some obscure little syllogisms developed by the Department of Health and Ageing, presumably at the request of the government suggesting, 'It will probably help. Yes, it could, absolutely, because people buy them if they're colourful and if they're not colourful any more, that will help.' There is no research anywhere. In fact, when the government went looking for research in 1995, they were left with the fact that they could only come back to look at legal and constitutional issues. One of the biggest concerns about this piece of legislation is that, despite numerous requests at estimates and in other fora, the government have refused to allow to be made public any of the legal advice they received going back to 1995.

One assumes that, if any of the legal advice—it is a bit like their modelling for the carbon tax, is it not?—was definitive in suggesting that the government's course of action was going to be legally sustainable, it would have been released. But it has not and once again we have to be very concerned about what exactly it is that the government are trying to do here.

Within industry, not just in Australia but internationally, trademarks are understood to be a very valuable property right. Huge amounts of money are spent every year on developing trademarks and on building the assets behind the trademarks, and in defending trademarks from imitation and other misuse which might affect the value of the property of the company which owns the trademark. This matter is being watched not just by tobacco companies around the world; this is being watched by every patent attorney and every organisation involved in the trademarks sector to see what happens. It could, once again, be the thin end of the wedge in what happens with trademarks.

If this legislation is passed, there is a strong likelihood that it will cause definite ructions within world trade organisations. No-one in this place has any problems with well-thought-out plans to reduce smoking, particularly among the young and other groups who have very high smoking rates such as Aboriginal and Torres Street Island Australians—no problems whatsoever. To embark on yet another sally down a legal pathway where we do not know what the consequences will be, either in terms of cost to the taxpayer or the effect it will have overall on trademarks and the industries which rely so heavily on trademarks, is just crazy stuff. Why would we be surprised about crazy stuff coming out of this government? We cannot be. I encourage the government to think again about this legislation and to be confident in where they are going with it by releasing their legal advice.

The other aspect of this legislation which reminds me a little of the Malaysian migration debacle, which this government tried on, is the fact that the government are somehow trying to blame the coalition for the fact that this legislation has not been passed. They attempted to convince some reporters that it had been stalled in the Senate by the coalition. 'Um, um, um' is my only response to that. I know that Senator Fierravanti-Wells has made several attempts to speak on this legislation. I practically had to brush the cobwebs off the speech that I have had ready since this was first put on the Senate Notice Paper in August this year. Day after day, week after week, this government continued to be unable to organise their own legislative program. It would be on the Notice Paper; it would be off the Notice Paper. This legislation is getting noticed now, under the new guillotine system that the government have introduced, only because of their incompetence and their mismanagement of the legislative program up until what they saw as the death hour. I guess Minister Roxon is not someone who is new to backflips and reorganisations and not knowing what she is doing tomorrow.

Senator Fierravanti-Wells: She blames everyone else; it is never her fault.

Senator BOYCE: That is true. As Senator Fierravanti-Wells points out, Minister Roxon is the past mistress of blaming everybody else for her faults, and this is just another one of her little efforts to do so. Instead of this plain packaging legislation going into effect on 1 July 2012, it will not do so until December 2012. The government, particularly Minister Roxon, have absolutely no-one to blame except themselves for the fact that this has been delayed. They are still fiddling around with the wording in the legislation, worrying about square edges and round edges. Given the time the government have had to do this, you would think that they could have gotten it right—well, as right as they could ever get it. But they cannot even get the detail of the legislation right. They cannot get the introduction of the legislation right.

Once again, I express my very serious concern about the potential unintended consequences on every manufacturer, service industry, organisation and corporation in Australia that has trademarks and makes a profit out of those trademarks. There is nothing wrong or unacceptable about a company making a profit out of holding trademarks. It is quite typical of this government that there is some sense of attempting to suggest that it is a bit mean and nasty to want to make a profit out of a trademark.

The other issue that has simply been brushed over by the government is the issue raised by the manufacturers regarding illicit tobacco. According to manufacturers, it will be easier to put illicit tobacco into the market because the packaging will be easier to copy. I am honestly not aware of how that will play out, but the amount of illicit tobacco on the Australian market certainly is already a major concern. I note that a survey last year, I think conducted by PricewaterhouseCoopers, showed that in Queensland the electorate with the highest sales of illicit tobacco was the Treasurer's seat of Lilley. That is where most illegal tobacco in Queensland was being sold. I cannot begin to understand that because the government do not like the warning put out by tobacco manufacturers about the potential increase in illegal tobacco they have done absolutely nothing about this potential issue. If they could say they had investigated it and could genuinely tell us that there is no likelihood of an increase in illicit tobacco sales, fine, but they cannot. They just want to pretend it cannot happen because they did not think of it when they organised their brave, crazy, new-world legislation.

I would ask the Senate to really consider whether this piece of legislation is in the interests of taxpayers and whether it is in the interests of smokers. It is so flawed in so many ways. The aim of it—to reduce smoking—is something that no-one will disagree with. The way of going about it is probably symptomatic of this government, its ineptness, its ignorance of how the real world works and its folly in not caring about the costs to the Australian taxpayer of the implementation of its legislation.