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Thursday, 10 November 2011
Page: 8877


Senator CASH (Western Australia) (16:21): The Senate is considering in this second reading debate two bills which the government has introduced in what we are told is an effort to reduce the incidence of smoking in Australia. The first bill is the Tobacco Plain Packaging Bill 2011 and the second is the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. So that there can be no question about my position on the issue of smoking, I state for the record that, based on considerable empirical research, I believe that smoking is a health hazard and that smokers who indulge the habit for a period of time are likely to suffer significant health problems, which may result in their early death. Equally, I believe that there is considerable empirical research to show that the passive intake of tobacco smoke by those who come into contact with it is likely to have adverse health implications.

It is clear that the ill effects from smoking and passive smoking harm many of our citizens and impose a massive financial burden on the Australian health system. It is unacceptable to stand by and do nothing when up to 15,000 Australians die of tobacco related causes each year. I therefore support action which will effectively reduce the incidence of smoking in Australia in an effort to improve the health of our citizens and reduce the burden on our health system, which is estimated to be up to $31½ billion each year.

Given the government's stated purpose in relation to these two bills, the question that needs to be asked by the Senate is: does the proposed legislation in its present form achieve the government's stated purpose? Clearly, based on the evidence of numerous published reports and having regard to the submissions that have been made to the various parliamentary committees, the answer to this question is: most unlikely.

Given that the opposition and the government share a common belief that smoking does indeed harm one's health and can indeed cause death and given that the government and the opposition share a common desire to reduce the incidence of smoking in Australia, you would have expected the government to have adopted a bipartisan approach to achieving what is a common policy objective. However, clearly the Minister for Health and Ageing decided that she was the sole expert in the field of smoking and wanted to use the introduction of these bills to try to make out that the only political party in Australia that was interested in reducing the incidence of smoking in Australia was the Australian Labor Party.

What did the minister for health do? Australians were subjected to the minister embarking on a massive campaign to try to denigrate the opposition, notwithstanding the fact that the opposition had a remarkably positive and constructive record of reducing the numbers of smokers in Australia when we were in government. The minister got so carried away with her vilification of the opposition that she suggested that the opposition's position on the bills was influenced by political donations that it may have received at some stage from tobacco companies. The minister, in attacking the opposition, was so adamant in this position—that accepting donations or other support from tobacco companies was so wrong in principle and in practice—that she trumpeted from the rooftops that the Australian Labor Party's policy was not to accept donations from tobacco companies and that Labor maintained the holier-than-thou position that it would return any such donations to tobacco companies, no doubt with a curt note saying, 'The Labor Party is not for sale.'

The minister made it very clear, in her protestations, that Labor was clean and would never knowingly take money from tobacco companies. We have heard speeches from those on that side of the chamber saying that the coalition parties are the only parties in Australia that accept donations from tobacco companies. That is just plain wrong. Not only is it just plain wrong; it is offensive to this side of the chamber. Just as the Prime Minister said, the day before the election, 'There will be no carbon tax under a government I lead,' the minister pretended to the Australian public that the notion that the tobacco companies could give money to the Labor Party was an offensive one. That was just plain wrong. You can only imagine what the Australian people thought about the credibility of the minister in question when they woke up one morning to find that, notwithstanding her protestations that Labor would never contemplate accepting money from tobacco companies, the minister herself had actually written to tobacco companies soliciting financial support from the tobacco companies to assist her re-election campaign. Let us just say that again for the record. The minister herself had written to tobacco companies and asked them for money, solicited a donation from them, to fund her own election campaign—complete, total and utter Labor Party hypocrisy.

Worse than that, when the minister's hypocrisy was exposed by the media, the Australian published a story that showed that, despite the so-called ban on Labor accepting tobacco money, lo and behold, there were letters circulating that showed that the Australian Labor Party were still asking tobacco companies for political donations. Let us have a look at what the Australian newspaper ran on 18 June 2011:

THE Labor Party has continued to seek political donations of up to $102,000 from a major tobacco company, as recently as this week, despite a ban.

The embarrassing revelation comes in the same week federal Health Minister Nicola Roxon was forced to apologise for sending a fundraising request to the same company in 2005, a year after Labor banned tobacco company donations.

…   …   …

Most of the six newly revealed letters were sent by Sports Minister Mark Arbib when he was secretary of the NSW ALP. They invited a senior tobacco executive to spend up to $15,000 on tickets to fundraising functions.

Honourable senators interjecting

The ACTING DEPUTY PRESIDENT ( Senator Cameron ): Senator Cash, I draw your attention to the matter at hand.

Senator CASH: Thank you, Mr Acting Deputy President, but I was not engaging in taking up the interjections or should I say the bleating from the sheep on the other side—or, as they have been called, the 'zombies' on the other side. We all know who called his own colleagues zombies, don't we.

Senator Fierravanti-Wells: The quota girls.

Senator CASH: I love that: 'the quota girls' as well; that is exactly right. The senators on the other side call out and interject saying that the Labor Party does not accept political donations and never did, but that is just plain wrong. It was Minister Roxon herself who had to apologise for misleading the Australian public on the basis that she wrote to big tobacco companies and asked them for money to assist in her re-election campaign.

Getting back to the Australian newspaper, what else did the article say, bearing in mind that it was as recent as 18 June 2011? It said:

Current NSW secretary Sam Dastyari wrote to the executive at Philip Morris this month offering a $5000 place at a Business Dialogue and Country Business Forum.

It would seem that the Labor Party's holier-than-thou attitude was nothing more and nothing less than typical Labor Party spin. What was the other spin the Labor Party tried to give to the Australian public? Minister Roxon also embarked upon a false campaign trying to denigrate the Liberal Party as not wanting to reduce the incidence of smoking. Like the minister's false statements about Labor not seeking money from tobacco companies, she was caught out this time for not properly checking the Liberal Party record.

As far back as 1966, under the government led by Sir Robert Menzies, the Liberal Party took positive action to reduce smoking by introducing a voluntary tobacco advertising code for television. Then in 1976 we continued our efforts to reduce the incidence of smoking in Australia when, under former Liberal Prime Minister Malcolm Fraser, we instituted a ban on the advertising of tobacco products on television and radio—again, a policy of a former Liberal government. In 1997, Dr Michael Wooldridge, the Liberal Minister for Health and Family Services, was responsible for cabinet agreeing to a massive national advertising campaign against smoking, which lasted two years and cost around $7 million.

In December 2003, the Howard government signed the WTO Framework Convention on Tobacco Control, which was ratified in October 2004. In 2006, then Minister for Health and Ageing Tony Abbott introduced legislation to require graphic warning measures covering about 30 per cent of the front of cigarette packets. Because of the positive action taken over successive decades by former Liberal governments, in particular the action taken under the former Howard government, Australia saw a significant decline in 2007 when smoking rates dropped from 21.8 per cent to 16.6 per cent. The reduction of smoking rates in Australia between 1989 and 2007 was 40 per cent for men and 44 per cent for women and represented one of the biggest falls in OECD countries. So it is purely false piety and hypocrisy for Labor to denigrate Liberal Party achievements in reducing the incidence of smoking in Australia, given that in 2007, when we lost office, Australia had the third lowest prevalence of smoking in the world, behind Sweden and Canada.

The legislation in its present form raises a number of significant issues on the question of trademark law and intellectual property rights. The government and the minister have on many occasions assured the opposition that its legal advice surrounding their plain-packaging proposal is robust, saying that they are 'on strong legal ground'. In agreeing that we will not be opposing this legislation in this place, the coalition—the opposition—has accepted the government's assurances regarding its legal advice at face value. However, despite accepting those assurances, we note that when you go to the text of the bill there are a number of alarm bells. For example, despite the government's assurances, proposed section 15 of the Tobacco Plain Packaging Bill provides that the bill would not apply to the extent that it would cause acquisition of property on other than just terms under section 51 of the Australian Constitution. The only conclusion that one can draw from the inclusion of this clause in the legislation is that the government itself does have some doubts about the strength and veracity of its legal advice. But, as I said, the government has given assurances to the coalition that its legal advice is robust and that it is 'on strong legal ground' and the coalition has accepted those assurances coming from the Labor Party. However, given the tenor of a number of the submissions on the potential infringement of intellectual property rights and given that the second bill is supposedly designed to overcome any infringement of trademark laws, the coalition is not necessarily convinced that the government has overcome all of the potential issues relating to intellectual property.

The other area of concern to me is the issue of unintended consequences that may actually flow from this bill. I have read the submissions made to the relevant parliamentary committees and I am somewhat alarmed at some of the dire predictions of what some believe will occur once tobacco products have to be marketed in plain and generic packaging. Based on the substance of a number of the submissions, it does seem very possible that there will be a substantial increase in the illicit trade of counterfeited tobacco products. To date the government has not advised the Senate on the specific action it proposes to take to overcome the increase in the illicit trade of counterfeited tobacco products and on what the cost impacts are in terms of detection activities. And, of course, there is the value of the revenue forgone, meaning the taxes forgone, due to the illicit tobacco trade. A number of submissions to the relevant parliamentary committees have raised issues relating to the impact of the legislation on retailers and, although I am supportive of appropriate measures being taken to reduce smoking, which clearly flow through to a reduction in the amount of tobacco products sold, it would be remiss of me as a Liberal not to acknowledge the adverse impact that will be borne by some retailers of tobacco products.

There are clearly without a doubt many unanswered questions in the minds of people when it comes to addressing the issue of tobacco products in our society. I have made my position very clear in relation to support for measures to reduce the incidence of smoking in Australia. The issue that I have with the legislation that is before the Senate is the unproven mythology being implemented by the government and the yet-to-be-answered questions on how successful the government's experiment will actually be. The coalition agrees that the use of tobacco each year kills and harms thousands of Australians and that it is sensible public policy to take action to reduce rates of smoking. The coalition has expressed its support for the policy objective of plain packaging of tobacco products. However, support for the government's objectives should not be an excuse for it to override principles of good legislative practice. That is why, whilst supporting the principal bill, the coalition will not be supporting the trademarks amendment bill, as we do not believe that this bill is necessary for the government to continue to implement its plain-packaging agenda.

If the minister had taken the time to draft the Tobacco Plain Packaging Bill properly, the trademarks amendment bill would not be needed. The coalition will be opposing this bill as we do not believe it is necessary and because the coalition do not agree with giving the minister the power to override the Trade Marks Act through regulations, which is precisely what this amendment bill does in clause 231A. This is a clause that allows for regulations made by the minister under an act of parliament to override the act itself. This is exceptionally uncommon. It goes against the basic legal principle that an act trumps regulations, it is not good legislative practice and it would not have been necessary had the government taken the time to properly draft the principal bill.