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Thursday, 10 November 2011
Page: 8816

Senator CROSSIN (Northern Territory) (12:11): Last night, as we proceeded to the adjournment, I was talking about the impact of smoking in the Northern Territory and I now remind people that the rate of smoking in the Northern Territory is, in fact, the highest in the country. When I concluded last night, I was in the middle of a sentence that went something like this: in 2004-05 more than 56 per cent of Indigenous adults in the Northern Territory aged 18 and over were smokers. The rates of smoking in some Aboriginal communities are as high as 73 per cent of adults. Based on this data, the rate of smoking amongst Indigenous adults in the Northern Territory is approximately 2.2 times the non-Indigenous rate and 3.3 times the national rate. Based on this data too, the rate of smoking in the Northern Territory produces a great burden. The burden of tobacco related disease is particularly high amongst Indigenous people, and we see this on a daily basis. It could not be more clear that drastic steps are needed to address the enormity of this problem.

Under the Council of Australian GovernĀ­ments National Healthcare Agreement, the government has committed to reducing the smoking rate among adults, aged 18 and over, from 19 per cent in 2008 to 10 per cent by 2018 and halving the smoking rate among Indigenous adults from 48 per cent in 2008 to 24 per cent by 2018. As part of the strategy to achieve this, we recognise the need to assist and encourage smokers to quit and we also recognise the need to discourage people from taking up the habit. So a major element of the strategy is to reduce the attractiveness of tobacco and to focus attention on health issues. That is why we have appointed Dr Tom Calma as the National Coordinator for Tackling IndigenĀ­ous Smoking and much of the work that we are doing to decrease the smoking rate amongst Indigenous Australians will be his responsibility. In 2008 we committed $14.5 million to the Indigenous Tobacco Control Initiative, which supports 18 pilot projects to tackle smoking in Indigenous communities around Australia. The lessons learned from those projects are being applied to the measures worth $100 million for tackling smoking under the Council of Australian Governments Closing the Gap in Indigenous Health Outcomes National Partnership Agreement. The Tobacco Action Workforce is being rolled out nationally in 57 regions over three years through regional teams with healthy-lifestyle workers who are working to promote good nutrition and physical activity. On 29 April we announced that we would legislate to mandate plain packaging of tobacco products by 1 July 2012. The evidence shows that branding and packaging design can mislead consumers about the safety of tobacco, reduce the effectiveness of graphic health warnings and increase the appeal of tobacco to young people. This evidence is set out extensively in the reports of the Preventative Health Taskforce, which find that plain packaging would increase the noticeability, recall and impact of the health warnings, that it would reduce the ability of packaging to mislead consumers to believe that some products may be less harmful than others and that it would reduce the attractiveness of tobacco products to both adults and children. Generally, the aim is to reduce the appeal of smoking.

The Tobacco Plain Packaging Bill 2011 regulates the retail packaging and appearance of tobacco products to improve public health and to give effect to certain of our obligations under the World Health Organisation Framework Convention on Tobacco Control. The plain-packaging legislation will prohibit tobacco industry logos, brand imagery, colours and promotional text other than brand and product names in a standard colour, position, font and style on the drab dark brown colour shown through research to have the least appeal to smokers. When the legislation comes into effect, the warning and graphic will cover 75 per cent of the front of the package rather than the current 30 per cent.

The bill will make it an offence to sell, supply, purchase, package or manufacture tobacco products for retail sale other than products in packaging which complies with plain-packaging requirements. These offences will apply to manufacturers, packagers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the plain-packaging requirements. We know that these strong measures are not going to be popular with everyone. After all, these will be some of the toughest measures against tobacco smoking in the world, if not the toughest. We do have a responsibility to reduce the incidence of tobacco related diseases and encourage people to quit. In fact what we want to do is prevent our young people from taking up smoking.

Finally, I want to turn to one of the main elements of debate in relation to these bills. There is not so much debate about the Tobacco Plain Packaging Bill 2011—we hear that the opposition is going to support that legislation—but they make spurious arguments for not supporting the Trade Marks Amendment (Tobacco Plain Packaging) Bill. This bill was sent to the Senate Legal and Constitutional Affairs Legislation Committee, which I chair, for particular inquiry into and reporting on the elements of this legislation. The trademarks bill is consequential to the plain-packaging bill. It is intended to amend the Trade Marks Act to enable regulations to be made in relation to the use of trademarks. As the minister noted in her second reading speech:

The objective of any such regulations would be to ensure that the practical operation of the Tobacco Plain Packaging Bill 2011 does not prevent businesses from registering new trademarks, or from protecting registered trademarks against infringement.

The opposition say they are not going to support this piece of legislation. It would not be any surprise, of course, that the people who are objecting to the trademarks amendment bill are the four main tobacco companies operating in Australia. It seems to me that the opposition want to have their cake and eat it too, basically. Their public position is that they are going to support the plain-packaging bill but that they are going to hedge their bets and support the big tobacco producers by not supporting the consequential legislation, which is the trademarks amendment bill. They do that by hiding behind the fact that the trademarks amendment bill is predominantly what is known as a Henry VIII clause. That is, it is an express provision which authorises the amendment of either the empowering legislation or any other primary legislation by means of delegated legislation.

The Scrutiny of Bills Committee, which I once chaired in this parliament, is tasked with looking at each and every piece of legislation that comes into the Senate—and a fine upstanding committee it is. It examined this bill and noted that, while clause 231A enables regulations to be made which are inconsistent with the Trade Marks Act, the explanatory memorandum to the trademarks bill contains a detailed explanation of the possible need for this clause, including the need for the government to comply with its obligations under the Madrid protocol. The Scrutiny of Bills Committee then concluded that it would make no further comment, so it did not see this as a significant issue or problem. The Madrid protocol is an international agreement which facilitates a system of international registration of marks administered by the World Intellectual Property Organisation.

It is interesting to note the evidence that the committee took while investigating this legislation. The submission from the Department of Health and Ageing outlines that a draft of the trademark bill, along with any amendments we were proposing to the plain-packaging bill, had been issued for public response so that anyone could raise items of concern. There was consultation on the exposure drafts of both of these pieces of legislation. And do you know what? None of the evidence we received during the committee inquiry came from the tobacco associations. None of them provided input—none at all. There was no input from British American Tobacco Australia, who so adamantly said to us during our committee inquiry that they were fervently opposed to the trademarks bill. Issues about the trademarks bill were raised only by the International Trademark Association, the Institute of Patent and Trade Mark Attorneys, the International Association for the Protection of Intellectual Property and Professor Mark Davison, who was a member of the expert advisory group. It is interesting that when the department had an exposure bill out there for consultation, none of the main tobacco companies sought to have any input then but were more than happy to come to a Senate committee and raise their concerns at that time—and, of course, have managed to arm-twist the opposition into believing them that the Tobacco Plain Packaging Bill 2011 and the consequential bill, the Trade Marks Amendment (Tobacco Plain Packaging) Bill should now, for some reason, be supported.

But let us have a close look at why we believe we need to support this legislation. Contrary to what some people on the opposition would have you believe, it will be able to be disallowed in parliament. Under the subordinate legislation—which is what this trade marks amendment bill provides—if a regulation is made that can then change the substantive plain packaging bill, that process that the minister may undertake is disallowable in both houses of parliament. So I am entirely baffled as to why the opposition would not support the trade marks amendment bill, and I would welcome an explanation from them as to why they do not believe that the ability to have any regulation examined by the Senate Standing Committee on Regulations and Ordinances and the ability to disallow any regulations by both houses of parliament is not a sufficient enough safeguard for them to support the trade marks amendment bill.

Henry VIII clauses are not unprecedented in Australian legislation or even in the Trade Marks Act itself. My committee concluded:

In this context, the committee notes the evidence of Professor Simon Evans who stated that, on current authorities, a Henry VIII clause, regardless of its breadth, would be constitutionally valid.

We also noted that the Henry VIII clause in the trade marks bill that we are dealing with today is limited in its scope. That is in the explanatory memorandum and the outline of the bill. It provides that regulations can only be made in relation to the effect of the operation of the plain packaging bill. So we have a very narrow application that would be used only if needed, drafted in response, as the department said, to issues raised by the submissions during their public consultation.

So let us be clear about the process. The department went out with a draft exposure of the trade marks amendment bill and three organisations and a professor provided input and none of the tobacco companies had any input. The drafting of this has been done in response to that public consultation. The trade marks amendment bill would allow subordinate legislation or a regulation to be drafted that amends the substantive plain packaging bill. If that occurs, the regulations and ordinance committee of the Senate can have a look at it and that instrument can be disallowed by both houses of this parliament.

So I am at a loss to work out why the opposition would want to support this. I will go to their dissenting report and quote what they suggest. They use a very unusual word, but I suspect it is one that probably Senator Brandis has dug up somewhere. They say:

It is difficult to see how a lacuna—

'a lacuna' sounds like something out of TheLion King, really—

in the Government's plain packaging regime of a few months—should that be necessary to allow Parliament to remedy any flaw in this regime …

A lacuna is actually a gap. If you go to a thesaurus or a dictionary it talks about a gap or a flaw. But that is not what the trade marks amendment bill is about.

If Liberal senators are actually opposing the trade marks amendment bill because they somehow think that there has been a gap or a flaw in the original legislation, they have totally got it wrong. The trade marks amendment legislation is there in case at some stage there is a need to protect the manufacturers of the cigarette companies. The plain packaging legislation 'is intended to provide an additional level of assurance for trade mark owners' and to ensure that the government will be able to 'act quickly to address any unintended consequences' arising out of the regulation of trademarks intended for use on tobacco products and their retail packaging.

So I would be really interested to hear from the opposition exactly in the context of the work that we did in the Senate Legal and Constitutional Affairs Legislation Committee and on the fact that the large tobacco companies in this country did not provide to the department any input during the consultation phase of the trade marks amendment bill, on the fact that that bill is here to provide some level of reassurance for trademark owners of tobacco products on their retail packaging and on the fact that any regulation that is struck under this trade marks amendment bill could be subject to scrutiny by the regulations and ordinance committee and disallowed in both houses of parliament.

I can only come to the conclusion that while, on the face of it, you might be seen to be supporting the tobacco plain packaging bill, what you are really doing is hiding behind the facade of the trade marks amendment bill to actually protect the big tobacco companies and owners in this country. That is what you are really doing. You are using this bill to actually say, 'We agree with the intent of the health outcomes you are trying to achieve'—yeah, right—'but really we're backing up big business.' I call on you to reconsider that and to put your support behind both of these pieces of legislation. (Time expired)