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Thursday, 10 November 2011
Page: 8871


Senator WILLIAMS (New South WalesNationals Whip in the Senate) (15:57): I would like to add some words to this debate on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011.

I am very concerned about the removal of the property rights for one reason only—and that is because the Australian government may get sued. It is no secret that members of the National Party and members of the coalition believe in property rights. I refer to the time of—I was quoting this the other day—the infamous Kimberley Maxwell Yeadon, the minister in the New South Wales Carr government. I believe Senator Wong was one of his staffers.

Senator Wong: Yes.

Senator WILLIAMS: Yes, it was interesting reading the other day. When I was in the sheep yards or the shearing shed I would often laugh at John Laws, who would make it a common habit to get stuck into the 'jumped-up shop steward' as he used to refer to him. Mr Yeadon brought in a policy called SEPP 46 followed by the Native Vegetation Conservation Act. That removed farmers' rights to carry out activities on their land. We now have a case, for example, in New England, where a farmer pushed over a tree.

Senator Wong: We are talking about tobacco.

Senator WILLIAMS: I am talking about property rights, Senator Wrong, if I am going to take the interjection, but I need to talk to the Deputy President and focus on him, as the rules allow. I will give you an example, Mr Deputy President. A farmer pushed over a tree to rip out blackberries—a noxious weed—and get rid of rabbits. He is now facing a $50,000 fine because he pushed over that tree to do away with vermin that cause soil erosion and to remove the blackberries. That is an example of how property rights were removed.

Now, let's get onto property rights and this bill. Like it or not, it is legal to sell cigarettes in Australia and these companies have a property right, a trademark. I find it most alarming that Philip Morris Asia has lodged a claim for compensation of some $67.5 billion. I do not know where the government will get that money if it is not successful. Tobacco companies are wealthy, which means they can employ good solicitors, the best barristers and the best senior counsel. Minister Roxon claims the government has strong legal advice and is on strong legal ground on this issue, but let's look at the government's record on the Malaysia solution. The High Court ruled against the government's legal advice. My concern is that if the government makes a mess of these property rights, these trademarks, it will cost Australian taxpayers billions and billions. So let's hope the government does have it right, because if it has it wrong and the court rules in favour of the tobacco companies for having their trademarks, their property rights, removed—and I know that some in this chamber do not care about property rights, as I just showed with the history lesson of Kim Yeadon in New South Wales—it is going to be at huge cost. If we get sued and the government loses the case—and of course there will be challenges and it will probably end up in the High Court—how many billions is it going to cost the Australian taxpayer? So I do hope this time the government's legal advice is strong and does hold water, because it certainly did not for the Malaysia solution for asylum seekers, as the High Court proved. We all know, in this chamber and around Australia, about the government's legal advice on that.

Just today a tobacco industry spokesman, Scott McIntyre, predicted that the government is going to have to spend millions of dollars of taxpayers' money fighting challenges in court followed by a potentially billions of dollars in compensation to the tobacco industry. That is my concern. He said:

We've invested billions of dollars into these brands. Unfortunately it looks like the government is pushing us down that path.

So already the tobacco industry are taking up the legal challenge; there is no question about that. As I said, they are wealthy—that is, I assume they are wealthy. I do not know if they are public companies; I do not have shares in them. I know that when I took on a challenge in court it was very difficult because I did not have much money. In the end, I had to come to a settlement because I had run out of money to pay the legal team. The point is that the tobacco companies will not have that problem. They will be able to finance, as I said, the best solicitors, the best barristers and the best senior counsel to take on this case.

Senator Bilyk may shake her head. Is she going to shake her head when she comes in here in two years time to say, 'We've just had to fork out for a $67 billion bill because of a court hearing'? She will not be grinning about it then, Mr Acting Deputy President. Those opposite will be saying: 'Where are we going to get the money from? Of course! The Australian taxpayers will pay it. We will sell off some assets. We will add it onto the debt of $215 billion.' As I said, I hope the government have it right because, if you have it wrong, removing those property rights—

Senator Bilyk: So the rich can do whatever they want, the big companies can do whatever they want, and don't worry about the public health issue?

The ACTING DEPUTY PRESIDENT ( Senator Cameron ): Senator Bilyk, order!

Senator WILLIAMS: Thank you, Mr Acting Deputy President. You know interjections are unruly. I know you yourself would never consider doing that and I thank you for bringing Senator Bilyk to order on that issue.

The ACTING DEPUTY PRESIDENT: Senator Williams, order!

Senator WILLIAMS: It does get hard at times, doesn't it? I can recall Senator Forshaw in the chair. He was very strict but he was a very different Senator Forshaw when he was sitting over on the other side of the chamber.

You know what I believe about property rights. You may dislike the product—ban it if you wish; make it illegal—but the tobacco companies have a legal product as it stands and they have a property right, just like the farmers in the example I gave earlier. It might even have been Senator Wong who gave that advice to then Minister Kim Yeadon in the New South Wales parliament. Who knows? It is something we will never find out. But this is the issue: the cost and what will come out of it.

The government brought in the alcopops tax in an effort to raise the price of mixed drinks in cans—and I must admit I have shared the odd can of Bundy and cola in my life, in moderation of course. What do the young ones do then? They turn to buying a bottle of rum and a bottle of Coke and mixing it themselves, which is a very dangerous situation. I do hope that this does reduce smoking but I also hope that it does not cost the nation billions and billions of dollars. And I do hope the government have their legal advice correct.