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Thursday, 10 November 2011
Page: 8896


Senator EDWARDS (South Australia) (17:44): I rise today to support my colleagues in talking about the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I was compelled to come down here after listening to quite a bit of the other side's contribution to this debate. They seem to have tried to corner the market on suggesting that we are involved in some kind of conspiracy with big business. It gets a bit tiresome to hear, I must say. What is wrong with big business? We try to attract big business to this country all the time. I think that everybody outside this place would want to know that every big, medium-sized and small business is receiving the support of all sides in this place.

We all know that smoking is the largest single cause of preventable death and certainly contributes to disease on a large scale in Australia. Globally over the next 50 years tobacco smoking is projected to result in 450 million deaths worldwide. That is a staggering nine million people a year. Today I want to draw the Senate's attention to the issue at a local level. According to the most recent ABS survey, 20.2 per cent of Australian males and 16.4 per cent of women are daily smokers. The annual social costs of tobacco use in Australia—the lost productivity and the medical intervention and research—are estimated at $31.5 billion. I have been digging into this further as I have been getting into these bills and I see that South Australia's share of this social cost is $2.39 billion, a staggering figure that recurs every year. Smoking and smoking related diseases are estimated to cost South Australia 57,275 hospital-bed days annually, while the direct impact on South Australia's health budget is estimated at $24 million annually.

No-one can credibly argue that this habit is not an incredible drain on this country's budget. Further research shows that there are not only social monetary imposts. The Cancer Council indicates that smoking rates are higher in rural Australia than they are in major cities and urban areas. This is putting stress on health services that are already diminished compared with those available to their city cousins. More alarmingly, in South Australia there are approximately 1,140 tobacco-attributable deaths annually. Tobacco is the greatest single risk factor for the disease burden in Australia. It accounts for 7.8 per cent of the total disease burden, including sickness, disability and death. Twenty per cent of all cancers and 70 per cent of lung cancers are attributed to smoking. One in two long-term smokers will die prematurely from tobacco-attributable deaths. The Australian Bureau of Statistics figures show that people aged 15 years and over who lived outside major cities in 2007-08 were 30 per cent more likely to be daily smokers than those in the major cities. The difference in daily smoking rates for women was greater than for men. Women outside major cities were 50 per cent more likely to smoke on a daily basis, while men were 15 per cent more likely. Men and women living outside major cities had higher rates of smoking in most age groups and it is only from the age of 55 that the rates of smoking converge for those living inside and outside major cities.

In highlighting these facts I want to make it clear that I support Australians giving up smoking and I actively encourage all those I can to do so. It is this emphasis on reducing smoking rates that leads me to my first concern: the potential rise of the illicit tobacco trade. Senator Bernardi has just spoken about it and Senator Birmingham spoke earlier about it. Most of the senators on my side are very concerned about the illicit trade in tobacco. The impact plain packaging may have on the growth of the illicit trade is not clear and it is likely to become evident only after this measure is implemented. Some retail businesses are already claiming that the illicit tobacco trade, or chop-chop as it is sometimes called, is already on the rise, evidenced through the increase in the sale of papers and filters but not in the sale of pouch tobacco. They are going in and buying their papers and filters, but they are not buying tobacco. This anecdotal evidence has been put forward by representatives of the supermarket industry, who obviously feel somewhat slighted by this legislation because they have not been consulted in any kind of detailed way. The minister has delivered this legislation and they now have to scurry around and reorganise their businesses. It is another lot of government interference in their businesses that they did not expect. The intent of this bill is to further reduce the rates of smoking. If we see a rise in the use of chop-chop then the purpose of the bill has been defeated. The government, if it is serious about reducing the rates of smoking in Australia, must also have a clear strategy on how to deal with the illicit tobacco trade.

Further to the potential rise in the illicit tobacco trade is the uncertainty surrounding the legal foundation upon which this bill sits. I am not a lawyer, unlike a lot of people in this place—it is probably fortunate that Senator Cameron is not here; he would say 'Hear, hear!'—but I do bring some real working experience on trademark legislation. Before coming to this place I spent decades promoting and investing hundreds of thousands, if not millions, of dollars into businesses which had to grow and prosper their products through the use of brands and trademarks. Across the world, it is fundamental that trademarks should be protected. Laws are enshrined, as they are here in this country, to protect people's proprietary rights in trademarks. My concern with these bills rests upon the possible interpretation that they acquire trademarks, which are unquestionably property rights.

There is much contestation about the impact of these bills. We must proceed with caution when legislating for this type of action. Currently, trademarks and intellectual property rights are provided for under the Trade Marks Act 1995 and a number of international agreements, such as the Paris convention and the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, refer to them. Trademarks are an important way for businesses to differentiate their product from others in the marketplace, effectively making it easier for consumers to make decisions about which products to purchase. Plain packaging takes away the ability for companies to differentiate and market a legal product through the use of their trademarks and, as a consequence, takes away their right to their personal property. I will come back to this point shortly.

The tobacco industry states that the introduction of plain packaging regulations would contravene minimum obligations for the protection of intellectual property rights under trade agreements in general, and under article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 in particular. While there is debate about how broadly the industry has chosen to interpret article 20, the point is that there is significant uncertainty over the impact of this legislation. However, in considering this proposed legislation I cannot support the erosion of property rights in any form, whether it be for chewing gum, cheese, soap powder or motor cars. My fear is that parts of this legislation will be the thin end of the wedge. This, colleagues, is one of my primary concerns: that measures like plain packaging could creep into other legitimate, legal goods and services sold and consumed in our society.

Do we prevent the use of trademarks for all products that pose a risk or are perceived to have a negative impact on society? Is plain packaging for tobacco simply the start? What is further down the road of political correctness? It was floated around this place last month, and Senator Bernardi referred to it earlier, that we should have an extra tax on fast food and health warnings on potato chips. Should all food come in drab brown packaging with a warning saying that this product may cause obesity? I suspect not. This bill reflects the totalitarian roots of those opposite: the Left/socialist origins of the Labor Party and the Greens. Telling people what is good for them and passing legislation is another step in their plan to control behaviour.

There are very few things we humans use or consume that, when used in excess, are not damaging. One of my Senate colleagues eats a lot of carrots. I noticed that her palms were orange, and she told me that it is from eating a lot of carrots. We must never resile from protecting an individual's right to choose whether they eat a lot of carrots, whether they smoke or whether they drive a certain brand of car that they like. We must always empower people to take respon¬≠sibility for their own behaviour. Govern¬≠ments should not be in the business of telling people when, where and how much of something they can eat, drink or do. This is particularly true for all products which are legal—and tobacco, of course, is legal.

This kind of social debate should always come back to freedom of speech, to freedom of choice and to personal responsibility. Through information and education, which are freely available in our community via a number of sources, people can decide what is best for themselves. Branding and marketing are key tools used to differentiate very similar products in a highly competitive marketplace. We cannot take away a company's right to market and brand its product under the spurious guise of health benefits.

Having said all this, I want to reiterate my support for reducing smoking rates in Australia. It is a sentiment with which everybody in this house, including the smokers I have heard, is in furious agreement. But I want there to be a particular focus on rural Australia and I want to let the minister know that it has an unacceptably high number—a disproportionately high number—of people who smoke, compared with the number of smokers in urban and city areas. That is something we should address as a matter of great priority.

To this end I offer my support for the Tobacco Plain Packaging Bill. I hope that it achieves its intended outcome. But I cannot, for the reasons I have outlined, support the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011.