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Thursday, 10 November 2011
Page: 8891

Senator BERNARDI (South Australia) (17:24): I start my contribution to this debate by making a confession. I know we are not in the hallowed halls of St Francis Xavier Cathedral or somewhere like that, but I want to put on the record that I, for a substantial part of my adult life, was hopelessly addicted to cigarettes.

Senator Wong: And a rower!

Senator BERNARDI: And being a rower, Senator Wong—that is exactly right. The lure of tobacco was such that every morning I would wake up and crave a Marlboro Red and that I would continue to smoke Marlboro Reds throughout the whole day until I went to bed—and on occasions I would wake up in the middle of the night and do it. I am not particularly proud of it, because it is a terrible habit. I make no bones about the fact that smoking is addictive and it is dangerous; yet it can seduce even people who have a commitment to health and fitness.

One of the great challenges is how to break this nexus of people picking up the habit—the addiction—of smoking. I fully support measures which do that by targeting children. We should protect our children. Senator Singh mentioned before that we have banned smoking in cars where children are present. I think that is an excellent initiative. I do not support smoking in public buildings. As a former publican, I believe that individual businesses should have the right to make a choice as to whether they want to allow smoking on their premises or not, but I accept that that is not the way the world is moving.

I declare this because I suffered a number of ill-effects from smoking. They are not directly related to smoking, but once I picked up a respiratory infection and spent some time in hospital. After three months there I was allowed out for a brief sojourn to visit a doctor. Such was the lure of my addiction to Marlboros, I stopped and bought a packet and had a couple of cigarettes along the way. I got to the doctor, who said, 'You've been smoking, haven't you?' and I said, 'Yes, I have' quite sheepishly. She said: 'Look, you've got some scars on your lungs. If you continue to smoke you will die of cancer very quickly.' It was a rather a telling moment. That was probably the last cigarette I had. So I know full well the dangers of smoking. I know full well how bad it is. I know that it kills people. The less smoking we have, the better.

The reason I tell this story is that I want to put it very clearly on the record that I am not a defender of what Senator Singh called 'big tobacco'. I am apparently associated with big everything—big tobacco, big oil. Maybe I am accused of this because I am big Cory! But I am just big Cory and I am marching to my own beat. Senator Wong, I see you laughing. Maybe you have accused me of being too big—whatever it is. I am not a defender of big tobacco, but I am a defender of freedom. I am a defender of freedom of choice, I am a defender of intellectual property rights, I am a defender of small business and I am a defender of a business's right to sell a legal product.

I am also a very strong supporter of effective and prudent policy. Many people in this chamber and out there in the community would know that I am deadset against the creep of the nanny state, which seems to have an insatiable appetite. The problem with the nanny state is that it is not so much concerned about whether the practices or the laws it wants implemented or introduced are going to be effective or not—it is not concerned about whether it is actually going to achieve its stated aims. The objective of the nanny state, for those who advocate along this line, is generally to gain more control. It is about more control over individuals, more control over choices, more control over people, more control over businesses and ultimately more control over our society. That is what concerns me, quite frankly, about this legislation.

The advocates of this legislation are proudly trumpeting that this is the most draconian—that is my choice of words; they say it is the strongest—antismoking legislation anywhere in the world, as if it is some sort of patriotic duty that they have done and some sort of great achievement. Those words fill me with dread. Every time we fail to learn from the experience of other nations we risk imperilling our own nation and the things that make it so good. Other countries have quite thoroughly examined this issue of plain paper packaging, and they have invariably rejected it. They have rejected it on the grounds that there is no compelling evidence—no sensible belief—that it will actually decrease smoking rates. Coupled with this are a number of notable risks, and I will come to those risks a little bit later.

The suggestion that this bill is really just another piece of nanny-state legislation is evidenced by the response when the coalition said we would not be opposing it—albeit that we have a number of serious concerns not only about its being ineffective in reducing smoking rates but also about the dangers of legal challenges, the dangers to intellectual property and a range of other concerns which I will come to. When we announced that, the nanny-state supporters came out and started loudly trumpeting what a great victory it was. They then started their campaign suggesting plain paper packaging for alcoholic beverages and for energy-dense and nutrient-poor food. That is the sort of food that most of us have eaten on more than one occasion.

We have a Preventative Health Taskforce who have said they are going to have a crackdown on drinking, on smoking and on this energy-dense, nutrient-poor food. They want to talk about banning drinks advertising. They want graphic warnings on beer bottles. They want 'appropriate portion sizes for meals'. Now, who is going to determine what an appropriate portion size for a meal is? It is a mighty difficult question, because I would suggest to you that someone of my stature might consume a little bit more food than someone of, say, Senator Cash's stature—and that is no reflection on you, Senator Cash; it is probably a reflection on me. They want to tax unhealthy food because it might contain a little bit too much salt or too much fat. We already have a tax on ready-to-drink beverages, based on the premise that it would help reduce under-age drinking; but that reduction has not come to fruition. We have seen a transition from ready-to-drink beverages to naked spirits and people mixing their own. We have also seen suggestions that they want to ban alcoholic energy drinks.

Every time we talk about banning something because people, particularly adults, cannot make the appropriate choices, we go down a path from which I think there is very little chance of return. Once again I come to the fact that we do want to protect children and that there are measures which are effective in reducing the appeal of smoking and other harmful practices to children. We have seen the effectiveness of some of those measures in the form of advertising restrictions and things of that nature. But, with companies investing hundreds of millions, sometimes billions, of dollars in branding their products, for a government then to say unilaterally, 'Sorry, we're not going to allow you to do that,' sends a very, very bad message about the state of governance in this country.

I do not know anyone who defends smoking from the point of view that it is healthy for you. That may have been the case many years ago. In fact, my wife once told me she was diagnosed with asthma when she was seven or eight, and she was told that when she felt an asthma attack coming on she should have a menthol cigarette—an Alpine Light or something similar. It did not really work for her, and she would be shocked that I have revealed the state of the Irish health system back in the early seventies! But, anyway, things have moved on.

We have here an unproven policy, which may be well intentioned, to reduce smoking rates. But I do not think it is going to be effective. That is part of the reason I reject the idea that this bill is good policy. Also, we have heard that people are concerned about the intellectual property rights which may be lost by companies and about the fact that the bill could subject our people or our government to significant compensation claims. The legal issues associated with this bill are actually reflected in the Australian Constitution, a document which I believe more Australians should be knowledgeable about and more governments should be mindful of, because there are often encroachments on the separation of powers and some of the freedoms in our Constitution. There is a suggestion that plain paper packaging would constitute acquisition of property on other than just terms according to section 51 of the Australian Constitution. It may also violate article 20 of the TRIPS agreement, the World Trade Organisation's multilateral agreement on international property, which says:

The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements …

However, there is a health exemption in the TRIPS agreement, and this is where the legal contention lies.

The government and the minister responsible have on many occasions assured the opposition that their legal advice surrounding plain paper packaging is 'robust' and that they are on strong legal ground. Despite past experience, we accept the government's assurance at face value. But we are concerned because we have no proof of this. The government have refused to provide a copy of their legal advice to the opposition. Proposed section 15 of the Tobacco Plain Packaging Bill provides that this bill would not apply to the extent that it would result in acquisition of property on other than just terms, as under section 51 of the Australian Constitution. To me, that also suggests that there must be some doubts about the strength of the legal argument advanced by the government's advisers.

I am also concerned, having been a small business man myself, about the impact of this measure on retailers. There seems to have been a lack of consultation with retailers and small businesses over this issue. A number of them have contacted me, as I presume they have many other senators. They are worried about how this is going to impact their stock management at the point of sale—the difficulties in differentiating between packets that look almost identical.

We know that the House of Representatives Selection Committee referred this bill for inquiry to the House of Representatives Standing Committee on Health and Ageing with a wide-ranging brief. It focused solely on the health impacts of this bill. It did not deal with the impact on small retailers or the impacts of illicit tobacco—statistics for which were mentioned by the previous speaker, Senator Fawcett. The chair of this committee made a specific point of suggesting that there were concerns over these issues and that the bills should be referred to other committees to have those issues dealt with. I would also like to make the point that the first we saw of this bill was when the minister introduced it in the House on 6 July. It was not flagged or issued as part of the Commonwealth's exposure draft or consultation paper, which was released in April this year. The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011, which we are discussing as well, has been referred to the Senate Legal and Constitutional Affairs Legislation Committee so that the committee can consider the specific provisions within this bill, any issues they create and ultimately their constitutionality. This bill contains what is known as the Henry VIII clause. This clause allows regulations made by the minister under an act of parliament to override the act itself. It is the clause that ministers can use to do virtually anything they like. In this situation, regulations made by the minister under the Trade Marks Act could override the Trade Marks Act itself. This is uncommon, to be very generous. It goes against the basic legal principle that an act trumps regulations. These clauses are exceptionally rare, and I stress that they are used only when there is no other alternative. Of course, the minister in this case did have an alternative: she could have drafted the original legislation—the Tobacco Plain Packaging Bill—properly. The coalition believe this would have been a better way. We do not believe that the trade marks bill is necessary for the government to continue to implement their plain packaging agenda. I would suggest that if the minister had not been in such a hurry, has been across the detail, and had taken the time to draft the Tobacco Plain Packaging Bill properly, the Trade Marks Amendment (Tobacco Plain Packaging) Bill would not be needed. That is why the coalition will not be supporting the Trade Marks Amendment (Tobacco Plain Packaging) Bill.

In the time I have left, I turn my attention briefly to the issue of counterfeit and illicit tobacco. I have spoken with the tobacco companies about this and about whether they are overstating the case. I have spoken to some retailers as well. Based on the information that I gained, and based on the information provided to me by some consumers, illicit tobacco is widely available. The annual report of the Australian Customs and Border Protection Service shows that over the last three years it has seized 743 tonnes of tobacco and 217 million cigarettes. Clearly not all of that is illegal tobacco—it might include tobacco brought in by people who have bought too much duty free. However, I think the government have completely ignored the counterfeit tobacco issue and made no real attempt to address it through this legislation. This is despite the fact that articles 15 and 20 of the World Health Organisation framework also recommend implementing a track-and-trace regime for tobacco products and strengthening legislation against illicit trade in tobacco products. The government have instead let the tobacco companies manage their own tracking of tobacco products on a voluntary basis. This is despite articles within the draft protocol to eliminate illicit trade in tobacco products, as published by the WHO, which also state that the obligations of each party of the FCTC shall not be performed by or delegated to the tobacco industry. So there are a number of ways in which this government have failed to take fully into account the issues surrounding the counterfeit and illicit tobacco.

Finally, I would like to address the minister's conduct. I know that partisan politics play a significant role in how we go about our business, and it would be remiss of me not to insert a bit into my contribution to this debate. The minister has sought to politicise this issue surrounding plain packaging and tobacco control, simply for political gain. Any genuine attempt to engage in discussion or to raise issues which may have a serious impact on how our country will function in the future has been dismissed as the action of a person in the pay of big tobacco, and the rhetoric has been ramped up. The joke of this is that apparently the Liberal Party is in the pay of big tobacco because the Labor Party banned donations from the tobacco industry. It is somewhat galling that it was then discovered that the minister herself wrote to the tobacco industry asking them for a contribution to her own campaign fund. It is somewhat galling that recently there have been six newly-revealed letters—some sort of new revelation—sent by people such as the Minister for Sport, Senator Arbib, when he was secretary of the New South Wales ALP. These letters invited a senior tobacco executive to spend up to $15,000 on tickets to fundraising functions. Personally I do not see anything wrong with that. That is their business. They can invite anyone they like to their functions. But it is rank hypocrisy for those selfsame people and their conduits within the Labor Party to walk into the chamber and say, 'You people are talking to tobacco executives' and 'You people are talking to the tobacco companies about support and sponsorship' when they are doing the selfsame thing. This is what is diminishing politics in this country. The hyperbole is being ramped up, the hypocrisy is reaching a much higher level than it otherwise would, and we are diminishing politics and political debate in this country as a result. If you want to deal with tobacco companies, deal with them. I do not have any shame in saying that I am happy to talk to the tobacco companies, but not because I like their product or because I want to use their product—and I do not particularly want other people to use their product either. I would be devastated if my children started smoking. But they point is that they run legal businesses in this country and, whilst they are doing business legally in this country, we should have no shame in talking to them and openly engaging with them. I say to the government: whilst you are living off the pig's back and taking their taxes and using them to support your employment, you cannot demonise them and say that anyone who talks to them is somehow in their charge.

The problem we have here is that the level of hypocrisy is so large and so grotesque in this government that people have lost confidence in them. They have lost confidence in any genuine attempt there may be to redress some serious social ills, and they have lost confidence in the governĀ­ment's ability to manage things. That is proven by this issue, because the legislation is so poorly drafted that it will not achieve what it is intended to do, and it will have myriad unintended consequences. That is why the coalition stands for common-sense policies. We will give the government the benefit of the doubt on this legislation, but we have serious concerns about its legal implications for the Australian government, to the tune of billions of dollars, and about its effectiveness in reducing smoking rates.