Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Transcript of joint press conference: Parliament House, Canberra: 15 August 2012: High Court decision on plain packaging

Download PDFDownload PDF

THE HON NICOLA ROXON MP Attorney-General Minister for Emergency Management





NICOLA ROXON: Thank you very much for coming this morning. Tanya and I are here wanting to talk to you about the High Court decision on the plain packaging of tobacco. But before we do that we just have a very short little clip that we would like to play to you that I think highlights why it is the Government has been so determined to do this. Hopefully someone has a button to press to make this work over here. Is someone doing that? [Video clip is played to the audience] So, this is a video clip that's been used in the…[Laughs] We're going to see it again for those of you that were a little late. [Video clip is played to the audience]

This is a clip that's being used in the UK at the moment while they are considering whether or not to introduce plain packaging. And I thought it was a good and timely reminder to show people who might not have seen it why it is that our Government has been so determined to introduce this measure and why we are so proud that we're able to stand up today and say that we have taken on big tobacco and we have won.

And this is good news for every Australian parent who worries about their child picking up an addictive and deadly habit. So, I am pleased to be standing here with my ministerial colleague, Minister Plibersek. Obviously people have seen that the High Court has announced their decision, although not provided their reasons. All of the arguments that were presented by big tobacco in trying to convince our Government not to proceed with this action I think have been disproved today. They've threatened us with the expense, they threatened us with legal action and I'm delighted to be able to say that we have won that legal action. And just as some icing on the cake, it seems the big tobacco companies will also be required to pay the Government's costs. So, taxpayers can be pleased that if this public health measure stops even a single person from smoking, not only will we have saved lives but it will have been a very good investment of the Government's money.

So, I wanted to say that we are proud as a Government for the action that we have taken. We are very pleased that the highest court in Australia has said that the Australian Constitution allows this measure to be introduced. Of course, Tanya and her health team will have the busy and ongoing job of the implementation of this measure but the decision having been handed down today means that tobacco companies no longer have any excuses not to get on with implementing this

measure. And we urge them with the highest court in Australia having made clear that this is the step that the Australian people and the Australian Parliament can take, that it's time for the tobacco companies to get on with implementation and to stop trying to challenge this measure further in our international courts.

I also - before handing over to Tanya - want to particularly thank the many very passionate public health advocates who have been fighting for these sorts of tobacco control measures for many, many decades, in fact, before Tanya and I were born. This work stands on their shoulders and I am very proud that it means that many other countries around the world, many others who are fighting for tobacco control and what's the next appropriate step in their country will take heart from the success of this decision today and also, of course, the successful implementation to come. Over to you Tanya.

TANYA PLIBERSEK: Thank you. I want to thank all of you today for coming to hear about this historic win on tobacco plain packaging. This is a victory for all of those families who have lost someone to tobacco related illness. It's for anyone who has lost someone to smoking. This one's for you. I want to pay particular tribute to our Attorney-General, Nicola Roxon, who began this work as Health Minister. Nicola has been a fierce opponent of the tobacco companies and their plans to sell cigarettes, particularly targeting young people.

We know that the two things that effect young people's decisions to smoke most are the price of cigarettes and the appeal of the packaging. And we've moved on tobacco excise as a Government and now we've moved on plain packaging and the tobacco companies opposition to that move has been defeated in the highest court in the land. I think it's very important to remind ourselves that 80 per cent of people who smoke become hooked before they turn 19 and 99 per cent become hooked before they turn 26. The reason that the tobacco companies need to advertise in ways that appeal to young people is because old people keep dying. They need new customers because they keep losing their old ones.

About half of people who smoke will die because of their smoking. Fifteen thousand Australians every year die from tobacco-related illnesses - ten and a half per cent of all deaths in Australia and 20 per cent of Indigenous deaths. We've made huge strides in Australia over recent decades to decrease the number of Australians who ever smoke, who take up smoking and they have been very important advances. But today's advance puts Australia, once again, in the lead of all nations when it comes to tobacco cessation measures. We've increased the excise, as I said, we've put nicotine replacement therapy on to the Pharmaceutical Benefits Scheme; in the most recent Budget we reduced the number of cigarettes or tobacco products that you could bring in to the country duty free.

We've increased in successive stages the graphic health warnings on tobacco packets and today we have taken away the tobacco companies mobile billboards - the billboards that were in every pocket of every smoker around Australia. We've taken away their ability to appeal to children in the way that you see in this film. No parent wants their child to start smoking. If you talk to smokers, they don't want their kids to start smoking either. This is an investment in the future of our young people and an investment in continuing to reduce smoking rates in Australia.

I started by paying tribute to Nicola and I want to finish this way as way. This was an incredibly brave fight to take on. It's not easy taking on big tobacco. Governments all around the world have had fights with big tobacco every time they've tried to reduce their ability to recruit new smokers. It was a brave and visionary thing that Nicola took on and she should be rightly proud of herself today. Thanks.

QUESTION: Minister, does the December deadline for plain packaging still apply? And also, is the Government concerned about WTO actions or international arbitration and the ability of those to, you know, delay the measures?

TANYA PLIBERSEK: Yes. The 1 December deadline does still apply so the tobacco manufacturers and packages here in Australia will have to start producing cigarettes or tobacco in plain packaging from 1 October and shops will have to carry them by 1 December. Nicola's going to talk a little bit about the World Trade Organisation action.

NICOLA ROXON: Obviously the decision today - the highest court in Australia making a decision on the Australian Constitution confirming what the Australian Parliament has done. We have always argued that Governments should be entitled to implement public health measures, and we will argue that strongly in any forum that we're required to. But I think today is a day where these tobacco companies should accept the decision of the umpire. Taking this matter further is obviously an option for them and we will continue to defend any such action, but this is a clear indication that we are within our rights to take this action here. I think if you talk to legal experts around the country and around the world this will only improve the Government's ability to defend strongly any actions that are taken in international forums.

QUESTION: What are the legal - if there is a World Trade

Organisation campaign, if they win it what are the legal powers? People are very vague about what an international process might - how it might apply in Australia.

NICOLA ROXON: So, we don't even get five minutes of questions on our win today? Come on, guys.

QUESTION: Is it a win? Is it a win that can be sustained? That's the thing.

NICOLA ROXON: Of course, it's a serious question and it is a very important part of the process because it is the decision that has had tobacco companies saying, you know, we're not enthusiastically or speedily getting ready for implementation. This makes clear that they must do that, that the implementation timeline is fixed, they must get on and comply in Australia with Australian laws. There are trade disputes that are undertaken all the time. We have a number of countries who have raised this issue with us. And the World Trade Organisation has a forum for dealing with those matters. They're in their early stages now, but it's never been asserted successfully around the world in any trade dispute that governments are not allowed to take public health measures to protect their

community. And that will ultimately be the argument that if tobacco companies continue to pursue these matters in an international forum that will be tested.

QUESTION: So, you think if it goes to the World Trade Organisation you think you can win any international forum? You think you've got the…?

NICOLA ROXON: [Interrupts] Well look, I absolutely think that not only have I believed that we're on strong ground from the beginning, but I think the decision of the court today strengthens that ground. It has clearly - we don't have the reasons for judgement but we know that the question at issue was whether this was an acquisition of property. That has been rejected and that really is central to any of the trade arguments that are going to be put in other forums.

QUESTION: The case has been viewed as something of an international test case. Do you expect other countries to now introduce similar legislation and have you had any direct talks with some of your ministerial counterparts overseas about this?

NICOLA ROXON: Yes. Well, I think both Tanya and I have had some of those discussions. I'll make some comments and then Tanya might want to update people with any more contemporary health discussions that have been had. But we know that countries from Norway through to the UK, New Zealand, South Africa, France and others are considering this measure. We know that advocates, who I've already had messages from, in the US and elsewhere were following closely the decision here in Australia because it is the first time that this has been tested in a court in this way. But my message really is to other countries around the world, whether it's to public health advocates or to lawyers, look at what is the next tobacco control measure that's appropriate for your country. For some countries it will be plain packaging, for others it will be graphic health warnings, for others it might be point of sale restrictions. Each country needs to look at what is the next measure for them, but the importance of the decision today is that governments can take on big tobacco and win, and it's worth countries looking again at what the next appropriate step is for them.

QUESTION: Minister Plibersek, the tobacco companies have warned that this will lead to - [indistinct] the only way they'll be able to compete now is on price. Are you looking at any other further excise increases to combat that if they do give us cut price cigarettes?

TANYA PLIBERSEK: Well, the first thing I want to say about the tobacco companies' arguments about cut price cigarettes and a potential increase in counterfeiting, which is the other argument they use, is that they just don't stand up to scrutiny. When they talk about cut price cigarettes, what they're admitting is that they recruit young people - they need to recruit young people. Young people are price sensitive. So, they're admitting that their business model is about recruiting new, young smokers. That's what cut price cigarettes are about. Their other argument about counterfeiting or illegal importation of cigarettes also doesn't stand up to scrutiny. They released a very questionable report done for them by Deloitte, done for the tobacco industry, that vastly overstated the use of illegal tobacco products in Australia, and any argument that this plain packaging makes it easier to counterfeit cigarettes just doesn't stand up to scrutiny. It's - if you look around the

world there are all sorts of counterfeiting operations going on. They're pretty sophisticated, the fact that this packaging looks like this now doesn't make it easier to counterfeit. We still have allowed information to be put on packs, including things like alpha-numeric coding that will show whether cigarette packets are genuine are not. What you see is a tobacco industry that realises its business model of recruiting young smokers is in trouble and they reach for any straw to criticise measures that further restrict their ability to recruit.

QUESTION: [Indistinct] though if they drop their prices?

TANYA PLIBERSEK: We're not making any decisions like that at the moment. We believe that this win should be celebrated today. We believe that tobacco plain packaging will help us reach our target of reducing smoking rates to 10 per cent in Australia. It's a day for celebration and I'm not going to get engaged in that sort of conversation today.

QUESTION: Do you have an estimate of the costs that you're seeking to be refunded, and do you have any plans to extend this to alcohol packaging?

NICOLA ROXON: No, we have no plans to extend this to alcohol packaging. We've been quite clear that tobacco is the only legal product that if you use exactly as intended will kill you. Now, that makes tobacco a special case and we've been quite clear that this is a very strong measure for a very important and high public health risk. Look, we haven't provided estimates of the legal costs before. I've stood in this room and made clear that it wasn't in our interests to tell the tobacco industry how deep our pockets were or weren't, but many of you will remember that from day one the threats about the costs involved in legal action and that that was a reason that our Government should avert our attention from this measure has been used as a threat. So, I think that it is safe to say that this will be in the millions, and I am very pleased that the tobacco companies will be paying that amount rather than taxpayers.

QUESTION: You talk about putting this on alcohol but I'm just wondering if future governments could apply it, and also for junk food as well?

NICOLA ROXON: Well look, this has been a very long battle. It's been a hard fought battle. There are still some challenges internationally which we're urging the tobacco companies to now withdraw from. That's been our focus. And I'm sure the Health Minister will happily take you through the vast array of other preventative health measures in this area, but we've been quite explicit as a Government that this is a measure that is for tobacco, it's not a measure that is for other products.

QUESTION: Whilst [indistinct]…

TANYA PLIBERSEK: I just want to say there is no safe amount of tobacco consumption. People can have a glass of wine and it's safe, so I don't think - I think that the tobacco companies again have used this slippery slope argument to alarm people. It's not a justifiable argument. There are no plans to apply these to alcohol or to junk food as you've suggested.

NICOLA ROXON: Okay, I think we had a question in the middle here.

QUESTION: Industry analysts have suggested that the decision today could - and if it spreads to other countries - is likely to mean the tobacco industry's lawyers doing it - redoubling efforts to sell more cigarettes in developing nations. Does Australia have any responsibility in terms of trying to spread the campaign to the developing world?

NICOLA ROXON: Well, we've had discussions with countries both developed and developing. The point of course is making sure that countries are able to embrace an appropriate measure of tobacco controls for their country and they are going to be different. For example, today, I'm happy to be hosting a visit by her Royal Highness the Princess of Thailand, a country that actually has very graphic health warnings on the - their tobacco packs. Now, a country like Thailand might indeed be interested in the next measure. Other countries that don't yet have graphic health warnings might want to look at those things beforehand. So, I think that this is definitely on the agenda for health ministers across the world, both developed and developing countries. Do you want to add to that Tanya?

TANYA PLIBERSEK: Yes, can I add to that Mark? I've met recently with the World Lung Foundation, with the Bloomberg foundation, and other organisations that do work in developing countries. And in the past, we have provided organisations like that with our advertising that can be instead of make - you know, making a new ad from scratch in a poorer country, they can do voiceovers over our advertising. That's a really effective way of offering our researched, well thought through, well produced material in a way that can be a very effective deterrent to tobacco smoking in developing countries. We are very happy to cooperate with other countries that are interested in these measures to share our research, to share our legislation. We would be delighted if other countries, as Nicola says, take up the next step in their journey and our cooperation and information sharing has been very good.

NICOLA ROXON: And if I can - one - last two. Vince.

QUESTION: Tobacco companies spend millions of dollars on best law firms, and best barristers on this. They've also appealed, seeking - refusing to release the legal advice. Are you concerned that while companies like British American Tobacco can spend millions on taking up court time with this sort of litigation, a lot of our [indistinct] can't get into court. So [indistinct] the message from this about the cost of justice?

NICOLA ROXON: I'm very concerned, and you may or may not be aware, depending on how you spend your Saturdays, that I've recently given two speeches about this very issue. And we are concerned that increasingly, courts - and a lot of court time - is used by companies with vast resources who actually see the courts, and litigate in the courts as part of their ordinary business, rather than a business that might end up in a particular dispute, on a one-off sort of event and struggle to be able to have the resources to take action. I said in that speech that I was alarmed that a couple of lawyers, recently, made a joke saying, gosh, if I was in trouble myself - this is the lawyers - I wouldn't be able to afford myself. Now, that's funny as

a dinner party joke. But actually it reflects a serious problem in our system which is that the legal system is expensive, that legal fees are expensive, and that having access to your courts should be just as possible if you're an individual as it is if you're a big company. And the point really relating back to big tobacco is we were able to - despite their threats, despite their deep pockets - use the weight of the Government to be able to take this action. But if you were Rolah McCabe, if you are another person who has suffered from a tobacco-related disease, struggling to be able to take that action is near impossible and relies on the good will of lawyers who usually act pro-bono. I am proud of our Government. That we have said that we won't be threatened in this way. We can stand up to these tactics. And of course we will continue to look at what other access to justice measures might make it a more even playing field. Last question over here.

QUESTION: Yeah, it was just on another matter. What do you make of the New South Wales Government's plans to limit the right to silence when someone's arrested?

NICOLA ROXON: Well, this is obviously a state matter; it's a criminal issue that is being talked about. I haven't seen the particular provisions, although I've seen some of the reporting. I think that the legal fraternity will be well able to put its own arguments about who it might compromise or not. Obviously there are some circumstances where people are at imminent risk - where we've already accepted that some of those rights are compromised. So it is a balancing act. I haven't seen sufficient detail to be able to comment properly on it today. Thank you very much for coming.

QUESTION: Just to clarify - what's the penalty for selling a pack of - the old-style packets?

TANYA PLIBERSEK: I was just going to say the penalty depends on how many packets, how long after. But we've got a strong implementation regime that will be able to send inspectors into shops. We'll also have a telephone line that people will be able to ring up and make complaints on, and a website where people will be able to report in their entrance.

QUESTION: [Indistinct] inspectors going around from 1 December checking on stores and saying you can't sell those, you can't. Is that what will happen?

NICOLA ROXON: Well, we already have through a range of different things staff that are able to do that to make sure that all sorts of regulations are complied with. I am very confident in this area that we will have a very actively engaged public who will be on the phone instantly if these rules are being breached in any way after 1 December. Thank you all very much.

QUESTION: What about small business operators? Obviously big tobacco has its responsibilities, but if the small business got some cigarettes, if they've got some stock from pre 1 December, how hard are you going to be on someone…?

NICOLA ROXON: Well, that's why there's a clear phase-in time. The requirements for the manufacturers to start producing cigarettes in plain packs commences 1 October. That means if you are a business, you've got plenty of time to order stock, and manage it in a way that means any packets that do not comply or will not comply after 1 December are already out of the stores and out. That means you rely on businesses being sensible about their ordering. But that window of three months is quite a generous time. And we're confident it can be implemented. Thank you very much.


QUESTION: Minister, you've [indistinct] material from Aboriginal communities - alcohol sales, drugs, why not cigarettes?

NICOLA ROXON: Well, we'll talk with you about that.


For all media enquiries, please contact the Attorney-General’s Office on 02 6277 7300 or Minister Plibersek’s Office on 02 6277 7220.