Andrew Southcott (Boothby, Liberal Party, Shadow Parliamentary Secretary for Primary Healthcare) Share this | Link to this | Hansard source

I rise to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Despite the way the Minister for Health and Ageing has portrayed this issue, I would like to state from the outset that the coalition has always supported sensible measures to reduce the rate of smoking in Australia. The coalition therefore supports plain packaging and the public health intent behind this proposal. The coalition will be supporting the plain packaging bills at the second reading stage.

I would like also to remind the House of the strong track record the coalition has with regard to reducing smoking rates in Australia. Robert Menzies first introduced a voluntary tobacco advertising code for television in 1966. It was the Fraser government in 1976 that first implemented a ban on the advertising of tobacco products on TV and radio. In May 1989 the Parliamentary Joint Committee on the National Crime Authority, comprising representatives from all major political parties, unanimously recommended to parliament that tobacco advertising be completely banned.

In opposition, the Liberal Party supported the prohibition on tobacco advertising in 1992. Dr Michael Wooldridge announced as health minister in June 1997 what, at the time, was the biggest ever national advertising campaign against smoking, with a federal government spend of $7 million over two years. It was the Howard government that reformed cigarette taxation from a weight basis to a per stick basis as part of the New Tax System in 2000. This was a recommendation of many health organisations at the time—ASH, the Cancer Council and the peak health bodies. It is something that I personally pushed for within the Howard government.

Under the Howard government Australia signed the Framework Convention on Tobacco Control in December 2003 and ratified this in October 2004. As Chair of the Joint Standing Committee on Treaties I supported the ratification of the framework convention. The committee in its recommendations stated:

The FCTC will have a positive effect on public health within Australia, and enhance Australia's leadership role in relation to tobacco control internationally.

It was the Howard government, and Tony Abbott as health minister, who introduced the graphic health warnings on tobacco products in 2006. This constituted warnings of 30 per cent on the front of the pack and 90 per cent on the rear of the pack. These are the same graphic health warnings that the government is now expanding. In opposition it was the coalition who first proposed an increase in the tobacco excise in May 2009 a measure later adopted by the government. As recently as this year the coalition supported an amendment to the Tobacco Advertising Prohibition Act to facilitate the banning of tobacco advertising on the internet. The results are there for all to see.

The coalition presided over the biggest declines in smoking rates whilst in government. Under the coalition government the prevalence of smoking declined from 21.8 per cent in 1998 to 16.6 per cent of Australians over the age of 14 by 2007. This was amongst the lowest rates of smoking in the world. The decline in smoking rates in Australia—a fall of 40 per cent for men and 44 per cent for women between 1989 and 2007—was among the biggest in the OECD. The fall in smoking rates amongst women was the biggest in the OECD. Only Sweden and the United States have lower smoking rates than Australia. It is worth noting that at a time when Australia's smoking rates have been decreasing several European countries such as France and Germany have seen rises and Greece has seen a dramatic rise in smoking rates during the same period. So the message is: it is not all one-way traffic, there is no cause for complacency.

But the suggestion that the coalition is soft on tobacco companies is just plain nonsense. Most public health experts in Australia understand that tobacco control has been a bipartisan affair in Australia for a long time. It should be a national goal to see the smoking rates in Australia fall below 10 per cent. I agree with the Preventive Health Task Force of 2009 which suggested this as a goal. This goal has been adopted by COAG.

Australian researcher Melanie Wakefield has produced a number of research papers on plain packaging and its impact on consumer choice and consumer perceptions. Dr Wakefield's research has shown that tobacco packets with increasingly fewer brand design elements are perceived increasingly unfavourably. I believe that plain packaging will have an impact on the smoking rates within Australia. I believe it will reduce the number of people who take up smoking and it will increase the number of people thinking of quitting to take the next step and give it up for good. It is supported by the public health research.

On tobacco control more broadly, it is very clear that for tobacco control to be successful it needs to be part of a comprehensive tobacco control strategy. There is no silver bullet. California demonstrates what a concerted tobacco control strategy can achieve. Its current smoking rates are below 10 per cent. I have looked extensively at the research on the effects of plain packaging and the effects of graphic health warnings on consumer choice and behaviours. There is no doubt that plain packaging will have some impact on smoking rates and there is no doubt that increasing the graphic health warnings will have some impact. In fact, increasing the graphic health warnings is a measure that I support. My reading of the research is that increasing the graphic health warning on the front of the packet from 30 per cent to 75 per cent will have a much larger impact on reducing the smoking rate in Australia than plain packaging itself will. After all, when more than 80 per cent of the front and back of the cigarette package is graphic health warning and less than 20 per cent is plain packaged in drab brown what is having the greater impact on your eyeballs? We must remember that plain packaging is only one tool in the armoury in the push to reduce smoking rates in Australia. I want to turn to concerns with the bill. There are broadly three concerns which have been raised with the bill before us. There have been issues raised as to the legal grounds of this proposal, there have been comments made as to the impact on small business and small retailers, and there have been comments made as to the effect of plain packaging on illicit and counterfeit tobacco. I would like to briefly address these issues.

Firstly, on the legal issues, there has been much discussion as to the impacts of the plain packaging proposal on intellectual property rights and the use of trademarks. The minister's office has on many occasions assured the opposition that its legal advice surrounding their plain packaging proposal is robust and that they are on strong legal ground. We have accepted the government's assurance on face value. We have had to accept the government's assurance on this, as they have refused to release or provide us with a copy of their legal advice. It is, however, interesting to note that, despite claiming that they are on strong legal ground, they have drafted a 'get out of jail free' clause into the Tobacco Plain Packaging Bill. The government claims that the bill has been drafted so as to avoid any potential for any acquisition of property on other than just terms, because to do so would be contrary to section 51 of the Constitution. However, the government must not be too confident in their drafting skills, as clause 15 of the bill provides that the bill would not apply to the extent that it would cause acquisition of property on other than just terms. What this means is that if this act is found to constitute acquisition of a tobacco company's trademarks on other than just terms then those trademarks can again be used but their size and location will be governed by the regulations.

There have also been concerns raised that the government's proposal may violate article 20 of the TRIPS agreement and/or the 1993 Australia-Hong Kong investment treaty. Mr Chris Reid, the general counsel for the Department of Health and Ageing, stated during the House of Representatives Standing Committee on Health and Ageing's public hearing:

… we are confident that, should proceedings of that kind be taken, we would expect to win those proceedings.

Once again, I would like to make it clear that we have accepted Minister Roxon's assurances that the government stands on strong legal ground with regard to these issues.

I would like to turn to the impact on small retailers. One of the main reasons that plain packaging has not been adopted in any other jurisdiction has been the concerns of small retailers. The government's consultation of small business and especially small retailers has been lacklustre at best. Simon Cotterell, the assistant secretary of the tobacco control task force in the Department of Health and Ageing, stated during the health and ageing committee's public hearing:

… we have agreed to meet and discuss this legislation with any retailer or retail organisation that has approached us.

Unfortunately, you would have thought that, considering the expected impact on retailers, the department would have been a little more proactive in consulting with them. It is really easy to sit back and say, 'This is what we're doing; come and complain.' It was obviously too much effort to engage with small business and small retailers. It was too much effort to be proactive in the government's consultation of small retailers. Mr Cotterell also went on to say during that hearing that he was not aware that the minister had personally conducted any consultations with small business, and it seems as if this has been left entirely to the department. In fact, until the opposition started asking questions about this in estimates, the government maintained that its consultation with small retailers had been conducted by the Preventative Health Taskforce back in 2009—not even by the government itself. It was only when the coalition started asking questions about this in Senate estimates that the department actually went out and started consulting with small business.

Based on the concerns raised by small business during the coalition's consultations, the coalition will be moving an amendment to the Tobacco Plain Packaging Bill. This amendment seeks to address some of the concerns raised by small business and small retailers—the same concerns which have fallen on the deaf ears of this government. The Department of Health and Ageing have treated the concerns of small business as not core business for them. They have really been blind to the issues regarding small business and counterfeit tobacco, and the minister has been deaf to them. It seems as if the government have lumped these issues into the 'too hard' basket. The coalition's amendment seeks to allow the use of a tobacco company trademark on one of the two smallest outer surfaces of a cigarette carton. It is intended that this will aid in the stock management concerns of retailers without undermining the public health impact of the plain packaging proposal. Cartons of cigarettes are used almost exclusively in retailers' storerooms and, with the exception of duty-free stores at airports, are almost never on public display. Cartons of cigarettes are very rarely purchased by consumers, and they are not carried around by consumers. It is hoped that this measure will go, at least in some small way, to helping retailers who will be inconvenienced by this measure.

Turning to the issue of counterfeit tobacco, while Australia is generally seen as a country which has a low rate of illicit and counterfeit tobacco, there are concerns that plain packaging may increase the rate of illicit and counterfeit tobacco. The Australian Customs and Border Protection Service annual report shows that over the last three years it has seized 743 tonnes of tobacco and 217 million cigarettes. The 2010 National Drug Strategy household survey report run by the Australian Institute of Health and Welfare and released last month claims that illicit tobacco in Australia is smoked regularly by 4.6 per cent of smokers. The World Health Organisation Framework Convention on Tobacco Control recognises that illicit tobacco is a public health concern. I do not for a minute accept the claims which have been made by the tobacco companies on the levels of chop-chop, illicit or counterfeit tobacco that we may see under this proposal; however, I do feel that the government has not adequately addressed this issue. The minister has always been quick to point out that Australia was the first signatory to the framework to implement the WHO recommendation for plain packaging. What the government never says is that Australia signed the WHO Framework Convention on Tobacco Control during the Howard government years, in 2003. Turning to the point of illicit tobacco, this is really the blind spot in the government's proposal. The government are inexplicably silent on the fact that article 15 and article 20 of the WHO framework recommend implementing a track-and-trace regime for tobacco products and strengthening the legislation against illicit trade in tobacco products. This is something that the government have just not done.

The Department of Health and Ageing have regarded this as too difficult; they have not addressed it properly. They have not made any reasonable attempt to actually deal with the issue. Articles 7.2 and 7.12 of the Draft Protocol to Eliminate Illicit Trade in Tobacco Products, as published by the World Health Organisation, also states that the obligations of each party of the FCTC shall not be performed by or delegated to the tobacco industry. Unfortunately, the government have completely ignored the WHO recommendations on the control of illicit tobacco, and as their own plain packaging of tobacco products consultation paper states, on page 14, they are proposing that any alphanumeric code markings can be used by tobacco companies on a voluntary basis. Not only is the scheme not compulsory but it runs contrary to World Health Organisation best practice in this area, and it runs explicitly against the World Health Organisation recommendations that you do not put the anti-counterfeit measures in the hands of the tobacco industry.

WHO recommends that you do not put any track-and-trace measures in the hands of the tobacco industry. Even the tobacco companies requested, during their consultation with the government, that a unique alphanumeric code on each pack be generated by a government-endorsed and licensed machine, a suggestion which the government subsequently rejected. The opposition calls on the government to implement a neutral track-and-trace system for tobacco products. This scheme could be managed by the Australian Customs and Border Protection Service in conjunction with the Australian Taxation Office. Along these lines, the House of Representatives Standing Committee on Health and Ageing, on page 18 of their report on these bills, noted that there were:

… a range of sophisticated anti-counterfeiting measures which could be adopted.

So the opposition offers this as a constructive suggestion to the government and encourages the government to this. Do what the framework says; do not put your counterfeit measures in the hands of big tobacco but actually establish a neutral track-and-trace scheme. Look at what is done in California, in Massachusetts and in Canada. They are all jurisdictions which have an excellent reputation in the public health area. We encourage the government to move towards this because it is not good enough to implement plain packaging without having the counterfeit and illicit side squared off.

In turning to the House of Representatives inquiry into these bills, these bills were referred off to the House of Representatives Standing Committee on Health and Ageing with a wide-ranging brief to inquire into them. They were sent to this committee with an exceptional wide-ranging brief to avoid having to refer these bills to three different committees. The coalition did not want to hold up or delay this legislation, and that is why we did this. It is disappointing to note that the committee paid very little attention, none really, to the issues I have raised earlier: the issues of the impact on small business, the legal standing, the IP issues and the issues around counterfeit and illicit tobacco. There was really no consideration of these. The committee focused solely on the health impacts of this bill, which are not the subject of any dispute or disagreement. Even the chair of the committee has suggested that there were issues that needed dealing with by other committees, and these are the same issues that the minister has ignored.

What it comes down to is that it is really like an old-style Labor trade union demarcation dispute. They are saying, 'Look, it's not health; we will not deal with it.' It is really disappointing that the House committee has not done its job here. Let us be very clear: this is a health bill. The Minister for Health and Ageing has carriage of it. All of the material has been prepared by the Department of Health and Ageing. They have prepared the exposure draft and the discussion papers. The notion that it needed to be sent to three committees to get to the bottom of the legal, IP, small business and counterfeit issues is just a cop-out, but it is consistent with the approach that the government has taken from the very top, from the minister and from the Department of Health and Ageing. If the Department of Health and Ageing are competent to conduct the consultation with small business and to address the counterfeit, IP and legal issues then I think the health committee could have given this a go.

From opposition I am not sure how robust the government's interdepartmental committees are or how robust the cabinet system of government is, because this was a bill that needed input in lots of different areas. It is fair to say that even members of the government feel that there have been times when the normal processes of government have ceased to function with this government. In this case, it will be small business who have not been listened to by this dysfunctional government.

I want to touch briefly on the minister's conduct. It is disappointing, again, that the minister has sought to politicise the issues surrounding plain packaging and tobacco control for her own political gain, rather than taking an approach where the nation's health interests were at its core. She seems to have the attitude that no-one took any interest in tobacco control before she came along. If the minister had spent 10 per cent of the time that she spent talking about the coalition competently and properly implementing this proposal then we would be in a much better position today. The Minister for Health and Ageing has taken the attitude that if you do not agree with her 100 per cent then you must be in the pockets of the tobacco companies. This is puerile. Let us be clear: this is the first opportunity the opposition have had to vote on this issue, and we will be supporting the bill at the second reading stage.

The minister has had a lot to say about the coalition but has been silent on her own relationship with big tobacco. What we now know is that her own relationship with big tobacco was much closer and cosier than anyone ever realised. The minister has never fully disclosed to parliament the extent to which she was involved with big tobacco. It was not all that long ago that she was going to the football as a guest of Philip Morris, and she has never been up front to the parliament about that. In the minister's Register of Members' Interests she has declared a number of football matches she has attended, but she has never declared the one she attended as a guest of Philip Morris.

I would like to turn now to the drafting of these two bills. Given that the government have had more than two years since they first received the Preventative Health Taskforce recommendation to implement plain packaging, there has been no shortage of time to draft these bills. Considering that the government have, from the outset, claimed that they expected this proposal to be the subject of legal challenges, I would have thought that every possible care and attention would have been paid to the exact and proper drafting of these pieces of legislation. They released their exposure draft in April of this year, almost two years after the Preventative Health Taskforce handed down its recommendations.

The Senate Standing Committee for the Scrutiny of Bills have reported on both of these bills, and I would like to take a moment to inform the House of their findings. In brief, they found a lot of problems with the drafting of these bills. The committee has pointed to clause 27 in the Tobacco Plain Packaging Bill 2011 as potential inappropriate delegation. There was a concern from the committee that too many of the important details regarding the plain packaging proposal have been left to the regulations, rather than being included in the primary legislation. There was also concern raised that the various penalties in chapter 3 part 2 of the Tobacco Plain Packaging Bill 2011 may be considered to trespass unduly on personal rights and liberties due to the strict liability nature or the fact that the onus of proof has been placed on the defendant for certain elements of the offence. Thirdly, clause 83 of the Tobacco Plain Packaging Bill 2011 partially abrogates the longstanding principle that there is a privilege against self-incrimination. The committee was concerned that the public benefit which is to be achieved may not decisively outweigh the resultant harm to the maintenance of civil rights. Finally, the Senate Scrutiny of Bills Committee also pointed out the presence of a Henry VIII clause within the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011—the second bill.

I would like to make some specific comments on the Trade Marks Amendment (Tobacco Plain Packaging) Bill. The first we saw of this bill was when the minister introduced it into the House on 6 July. It was not flagged or issued as part of the government's exposure draft or consultation paper. This is a bill which, until 6 July, was not seen as necessary by the Department of Health and Ageing or the minister. On this specific bill the opposition has four simple questions for the minister. When did she realise that there were problems with her Tobacco Plain Packaging Bill that were in the exposure draft from April? What were the problems that were identified with the exposure draft? The third question is: why did she decide not to draft legislation which trumped regulation in the normal way as has been done by every other minister since Federation? And, fourthly: is the purpose of the bill to clarify the interaction between the bill and the Trade Marks Act, as said by the Department of Health and Ageing's submission to the inquiry, or is it so the government can quickly remedy any unintended interaction between the new Tobacco Plain Packaging Act and the Trade Marks Act, which is in the EM, or is it to ensure that applicants for trademark registration and registered owners of trademarks are not disadvantaged by the practical operation of the plain packaging act—again in the explanatory memorandum—or is it, as the minister said in her press conference of 17 August, that it is an important component of making sure that the trademarks are still able to exist?

The Trade Marks Amendment (Tobacco Plain Packaging) Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs to consider the specific provisions within this bill, any issues they create and, ultimately, their constitutionality. The bill, as I said, contains what is known as a Henry VIII clause; it is in section 231A of the amendment. It is a clause that allows for regulations made by the minister under an act of parliament to override the act itself. In this situation, regulations under the Trade Marks Act could override the Trade Marks Act. It is exceptionally uncommon, and it goes against the basic legal principle that an act trumps regulations. These clauses are exceptionally rare, and only used as a last resort when there is no other option. That is not the case in this situation. The minister did have an alternative and the Department of Health and Ageing had an alternative: they could have drafted the Tobacco Plain Packaging Bill properly. The coalition does not believe that this second bill is necessary for the government to implement their plain packaging. We think that this second bill is a sign that the government have botched the drafting of this bill. If the minister had taken the time to draft the Tobacco Plain Packaging Bill properly, the trademarks amendment, using an extraordinary power, would not be needed. It is for these reasons that the coalition cannot support the Trade Marks Amendment (Tobacco Plain Packaging) Bill. It goes against longstanding parliamentary convention and legal principles.

Government speakers on these bills may use the precedent of a similar amendment to the Trade Marks Act back in 2000—to implement the provisions of the Madrid protocol—to argue that the current trademarks amendment bill before this House should be supported. This was the last time I am aware of that a Henry VIII clause was used in this parliament. I would like to take the time to differentiate its use back then from the current situation before the parliament. The Trade Marks Amendment (Madrid Protocol) Bill 2000 was drafted to implement an international protocol: the Madrid protocol. It was a treaty to protect the rights of trademark owners, and it had a clearly defined purpose. My understanding is that it was used in this situation because there was no other alternative to implement our obligations under the international protocol. This plain packaging situation is completely different. The minister could have protected these rights by drafting her original bill properly. This is the reserve parachute—the escape hatch—if the minister has bungled the original bill. Hypothetically, this bill could be used to amend, to protect or to extinguish trademark rights for tobacco products, if the minister so chose. The department itself has said it is for 'any unintended consequence'. This is not a power we are willing to give this government. I reiterate that the coalition supports the plain-packaging proposal and the public health intent behind it. We will be moving an amendment to the legislation. But we cannot support the second bill because the principle that legislation trumps regulation should be upheld. (Time expired)

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the Gillard government's Tobacco Plain Packaging Bill 2011 and the related trademarks amendment bill. As a long-term smoker, I believe that we must do everything we can to deter and prevent people from taking up the habit in the first instance. The facts are very clear and speak for themselves. Smoking is one of the leading preventable causes of death and disease in Australia. When the sickness and disability caused by tobacco are taken into account, as well as the tobacco related deaths, tobacco caused more disease and injury in Australia in 2003 alone than any other single risk factor. Tobacco itself is responsible for about 90 per cent of drug caused deaths and has had a $31.5 billion toll on both our economy and our society.

Given these alarming facts, you would think that those opposite would immediately support plain-packaging legislation rather than remain silent for so long, maybe in fear of upsetting some of their biggest donors, because the Liberal Party are more than happy to take money from them. As they say, you choose your friends. We on this side of the House long ago ended that friendship.

Unfortunately, for too long, smoking was more of a normal practice; in fact encouraged in days gone by. It was almost accepted by society because Big Tobacco, to give them credit, have been very clever and successful in selling and marketing their products as being no different from any others and with no-one stopping them. Think back to football, cricket, motor racing and many other events, right around the world: there was the prominent advertising. For decades, cigarettes were placed alongside bread, milk and lollies in milk bars and convenience stores, with a visibility and presence equal to that of any other ordinary product. They were not treated as the harmful, deadly product that they actually are.

By introducing this legislation we are seeking to end one of the remaining forms of advertising and promotion of tobacco products, which will no doubt ultimately result in fewer Australians, particularly young Australians, taking up the habit. Plain packaging is part of the range of measures the Gillard government is taking to discourage, deter and prevent smoking. We all know that packaging is a fundamental part of market strategy for all consumer goods, particularly cigarettes. As other forms of advertising for cigarettes have been banned over the years, the importance of packaging to big tobacco companies is all the more relevant and important to their business. Packaging establishes a brand identity and its purpose is to promote the goods both at the point of sale and while the product is being used, which for cigarettes generally numbers a few times a day. Big Tobacco knows this and on numerous occasions, for a long time, they have admitted how important the packaging of cigarettes is to their sales. John Digianni, a former cigarette package designer, said:

A cigarette package is unique because the consumer carries it around with him all day … it's a part of a smoker's clothing, and when he saunters into a bar and plunks it down, he makes a statement about himself.

Similarly, British American Tobacco stated in 1978:

One of every two smokers is not able to distinguish in a blind … test between similar cigarettes … for most smokers and the decisive group of new, younger smokers, the consumer's choice is dictated more by psychological, image factors than by relatively minor differences in smoking characteristics.

British American Tobacco internal documents have stated that, given the consequences of a total ban on advertising, a pack should be designed to give the product visual impact as well as brand imagery. The pack itself can be designed so that it achieves more visual impact in the point of sale environment than its competitors. Philip Morris executives have also stated how important packaging was under increasingly restrictive advertising environments:

Our final communication vehicle with our smoker is the pack itself. In the absence of any other marketing message, our packaging … is the sole communicator of our brand essence. Put another way—when you don't have anything else—our packaging is our marketing.

Despite all the huffing and puffing, it is evident Big Tobacco knows that plain-packaging legislation will work. That is why you can ask: why would they kick up such a stink? They know that it will affect their profits. But, in our view, it will decrease the smoking take-up and increase the benefit to the nation's health, both socially and economically.

Plain packaging will increase both the noticeability and the effectiveness of health warnings and messages by standardising cigarette packages which will reinforce the consequences of smoking. The passage of this legislation will prevent tobacco advertising and promotion on tobacco products and tobacco product packaging in order to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people. It will increase the noticeability and the effectiveness of mandated health warnings. And it will reduce the ability of the tobacco product packaging to mislead consumers about the harms of smoking. Plain packaging along with a range of other tobacco control measures will assist in reaching the performance benchmark, set under the COAG National Healthcare Agreement, of reducing the national smoking rate to 10 per cent of the population by 2018 and halving the Aboriginal and Torres Strait Islander smoking rate.

This bill is a world first and it sends a clear message that the glamour is gone. The Marlboro Man has ridden off into the sunset. No longer do we see Ronald Reagan advertising Chesterfield cigarettes. Nor do we find that living 'Alive with pleasure!' is part of Newport cigarettes—because after all, if smoking is not a pleasure, why bother? These were the things we had in days gone by, like the Peter Jacksons down the beach with all the happy young people. Most of those people are now old and probably coughing away as they go about their daily business because of the direct effects of cigarette smoking. The new packs have been designed to have the lowest appeal to smokers and to make clear the terrible effects that smoking can have on your health. Research has illustrated that plain packaging significantly reduces the attractiveness of cigarettes to young people. That in turn should translate into fewer young people taking up smoking and more young smokers attempting to quit. We know that quitting is a very difficult option. I have had a couple of cracks at it myself, and I will again in the near future. But it is very, very hard. And that is one of the worst factors about smoking—how hard it is to quit. Plain packaging will increase the impact of health warnings and reduce the appeal of tobacco products to existing and would-be smokers. Since taking office, Labor has implemented a range of measures to decrease the smoking rate, and smoking rates have substantially fallen.

A large number of public health organisations and experts have expressed their support for plain packaging—organisations such as the Australian Medical Association, the Royal Australasian College of Surgeons, the Public Health Association, the Cancer Council, the Heart Foundation and the National Stroke Foundation. The World Health Organisation has also welcomed this legislation, stating:

… implementing the proposed legislation aiming to prevent tobacco advertising and/or promotion on tobacco product packaging will achieve its stated goals of: reducing the attractiveness and appeal of tobacco products to consumers … increasing the noticeability and effectiveness of mandated health warnings; and reducing the ability of the tobacco product packaging to mislead consumers about the harms of smoking.

The World Health Organisation Secretariat goes on to say:

… this legislation will contribute to curbing the initiation of tobacco use, reducing tobacco consumption, and decreasing incidences of relapse in those who cease to consume tobacco.

…      …   …

… the WHO Secretariat strongly supports the proposed legislation.

But, of course, there are those who have finally caved in to the pressure. The Leader of the Opposition for so long remained silent—the visionless man, as we have come to expect, once again putting himself and his own interests before those of the nation. The British Tobacco charter states that political donations are given to 'influence the debate on issues affecting our company'. It is a no-brainer. The Leader of the Opposition loves his Big Tobacco—or anyone else who will donate to the Liberal Party, because he is not choosy where he gets his money from.

Labor has introduced many other initiatives to reduce smoking and its harmful effects. These reforms have been undertaken in the context of the government's commitment, as I said earlier, to the target of reducing the smoking rate among the Australian population to 10 per cent by 2018 and halving the smoking rate among Aboriginal and Torres Strait Islander people. These targets are consistent with the national preventative health targets contained in COAG's National Partnership Agreement on Preventive Health. In order to achieve these goals we have increased the excise rate applying to tobacco products by 25 per cent; introduced legislation for plain packaging of tobacco products; introduced legislation to impose restrictions on internet advertising on tobacco products, in line with advertising in all other media; invested $61 million towards a national tobacco campaign, 'Every cigarette brings cancer closer', and $27.8 million over four years for social marketing campaigns targeting high-risk and hard-to-reach groups, and invested $14.5 million towards the Indigenous Tobacco Control Initiative. We have invested over $100 million towards COAG's National Partnership Agreement on Closing the Gap in Indigenous Health Outcomes and the Tackling Smoking measure and introduced the first ever Aboriginal and Torres Strait Islander specific national anti-smoking television campaign, 'Break the chain'. We have provided $5 million in one-off funding to Quitline in 2009-10 and invested $102.4 million to support the provisions of nicotine replacement therapies and other quit-smoking supports through the PBS. We will continue to work in the national interest and not work to benefit Big Tobacco, which profits at the expense of Australians, the Australian economy and our health system.

I noted earlier the opposition member talking about the retailers. I have spoken to many retailers in my electorate who have also raised the issue of cigarette plain packaging and the extra time it may take their staff. But every one of them I have spoken to and asked, 'Have you had a look at ideas such as putting them alphabetically?' has seemed to agree that that would end the problem that has been raised in the email campaign across the nation. Putting them alphabetically would make it far easier for them to pick up, and would take half the time of what they are doing now. So there is a lot of support. Many retailers I have spoken to—many in our milk bars and local convenience stores—have said that these sorts of measures are important to decrease the rates of smoking. I notice the shadow minister laughing over there. I think that says more about his inability to do his work and his ineffectiveness and his lack of an understanding of the rates of impact of tobacco on health in general, which probably explains why he has not asked the minister a question in two years.

Mr Dutton interjecting—

You call it simplistic! Mate, you have not done a thing for two years. You have got cobwebs on your shoulders from sitting there.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The members will stop interjecting across the table.

Mr Baldwin interjecting—

The member for Paterson, who would know that, should probably not interject.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I spoke about Philip Morris, in 1984, lamenting on the best way to address the decreasing sales of its flagship brand, Marlboro, in Australia and saying that the key problem seemed to be its lack of appeal to younger smokers and that this was the area that needed to be addressed. I think that is an important remark because it shows that it was advertising pushed directly to and aimed at encouraging younger smokers to take up the habit and line the company's pockets and the pockets of those opposite. Now I think it is time that the Leader of the Opposition stood up and actually stood for something and quit his dirty habit of taking tobacco donations. With that, I will conclude by saying that I think it is important that we commend this legislation to the House and wish it a speedy passage.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

I want to firstly commend the contribution by shadow parliamentary secretary Dr Southcott, who I think gave a very wise contribution to this debate. I want to address some of the issues which have been raised by others in this debate. Before I do that, I want—and I think it is important to do so in this process—to inform the public of how we got to this point. There has, for generations, been bipartisan support to address the issue of tobacco usage and uptake, in particular in Indigenous communities and among young Australians. That has matured over a period of time to a sensible point now where all stakeholders in this debate want to see a reduction wherever possible in smoking. We do not want to see increasing numbers of young people in particular take up smoking. They know cigarettes are a scourge and the health outcomes of smoking in a much better and a more informed way than did their parents or grandparents.

One of the remarkable aspects of this debate has been how the government has, in its desperation, in its flapping about from one issue to the next, tried to politicise this issue. I agree with much of what the health minister has said about the aspirations of this government to reduce smoking rates. It was the aspiration of her predecessor, the current Leader of the Opposition, and health ministers back as far as any of us can recall. But what has been different in this debate has been the way in which the current health minister has sought to denigrate the position of others in this debate, both in this chamber and outside, and the way in which the health minister has sought to discount views which might differ even slightly from her own.

It has been quite unhelpful because the opposition, when we were in government and as far back as the Fraser government, introduced measures and reforms in this area which we can be rightly proud of. The fact that smoking rates have declined over that period make us stand out in the western world in how low our smoking rates are. I have said in this place and to the media before that it is unfortunate that this government would seek to try and distract from other deficiencies—and there are many—that they have on their books at the moment. This is a government that by anybody's account has been the most incompetent, the most unable to implement change since the Whitlam government.

Tanya Plibersek (Sydney, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

Madam Deputy Speaker, I rise on a point of order: I am wondering whether the shadow minister intends to talk about the legislation at any stage.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Everybody at the table should understand that I get to determine if the member is being relevant. There has been some wide-ranging debate allowed on this bill but as he is the shadow minister with coverage of it, I hope he will get to the bill before the chair.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

The point is that the government has strayed away from the bipartisan position and it is sensitive about it, as the minister demonstrated at the dispatch box here.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Dickson should not impugn the minister. He is treading into other dangerous territory there. I ask you return to the bill.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

Her actions speak loudly because this is the government that has taken an issue where there was bipartisan support, where there remains bipartisan support, and has sought to turn it into a political issue. I think that is unfortunate. It reflects poorly on the government. To try to use the issue of tobacco control or reducing smoking rates—as I say, an admirable cause—to distract from other political issues is without precedence and it is unfortunate.

It is worth bearing in mind some of the outcomes in this area over the course of recent years. We do know that by 2010 the proportion of daily smokers in this country of 14 years and older had declined to 15.1 per cent. It was a downward trend that the Australian Institute of Health and Welfare says began in 1995. From 1989 to 2007 smoking rates in Australia declined by 40 per cent for men and 44 per cent for women. They were among the biggest declines in the OECD. For women, it was the biggest decline in the OECD. It was under a coalition government that the biggest decline in smoking rates occurred. In 1995, 23.8 per cent of Australians were smokers. By 2007 that had declined to 16.6 per cent. In the early 1990s smoking rates were declining by seven per cent annually. That rose to 10 per cent from 1997 onwards.

The biggest decline in cigarette sales in Australia, we now know, came in the years between 1998 and 2002. In that three-year period, total sales declined by 18 per cent and on a per capita basis by about 20 per cent. Many people rightly ask why did these significant outcomes come about? We know that in June 1997 the then Liberal health minister, Michael Wooldridge, began the biggest ever advertising campaign against smoking. In 1999 the Howard government reformed cigarette taxation from a weight basis to a per stick basis. This ended the unique situation where in our country tobacco companies could offer bonus cigarettes at discounted prices in packs of 25, 30, 40 or even 50. In 2006 then Liberal health minister, Tony Abbott, introduced the graphic health warnings on cigarette packets. In 2009 the coalition proposed a further increase in tobacco excise, perhaps the most effective means of lowering smoking rates. It took the Rudd government a further year to actually act.

It is also important to recognise in this debate that the first ban on advertising of tobacco products on TV and radio was introduced by the Fraser coalition government in 1976. We know that only now in America are they moving to institute the type of graphic health warnings on packets of cigarettes that the Liberal government introduced in 2006.

Australia does rank as a world leader. There are few nations who have lowered smoking rates further than our country has. We are considered a world leader and rightly so. Most of that action, as I say, was taken over the period of the previous coalition government. The point I come back to is that it was made in a bipartisan way and it was not used as some sort of a political axe to bang over the head of the then opposition, which is now in government. There has been a respectful debate up until this point. It is a very important point to make because there will be further actions that will be required both by this government and the incoming government, whoever that might be at the next election, to further reduce smoking rates. Like other health groups, interested stakeholders, people who have written to me and people who have expressed public support for the government's actions, we stand as one to make sure that we can reduce smoking rates and better inform consumers about the perils of taking up smoking. And we will continue to do that. I pledge in this debate that, if the coalition win at the next election, as health minister I will not use this as a political tool to assault the Labor Party. I accept that the Labor Party has, as does the Liberal and National parties, a bipartisan view that we should reduce smoking rates. I was the shadow health minister when we first recommended to the government, before they acted, to increase the excise on tobacco. We did that because there was clear evidence that increasing the price was a deterrent, particularly for younger people, to continuing or to taking up smoking. We will continue those good endeavours to make sure wherever possible we can reduce smoking in this country. I think that is evident in the speech also, as I mentioned before, of Dr Southcott.

We have amendments to this bill that we think will strengthen the situation. The government want people to believe that they were the first to introduce measures to try to reduce smoking rates. I hope that today as part of this debate I have dispelled that myth. If you repeat a lie often enough, sometimes people will fall for it, but the fact is that the Liberal coalition government had a proud record which led to significant declines in smoking rates. We will continue to support measures which do that. It is important that this government recognise that the Australian people have called their number. The Australian people understand that this is not a competent government in the area of health. This is not a government, regardless which area of health you talk about—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Dickson has been given a great deal of latitude and now he is testing my patience. I draw him back to the bill before us in this debate.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

The point we make in this debate is that they do not have a good track record of implementing health policy.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member is now defying—

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

This is a health policy, Madam Deputy Speaker.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Yes, and I would really like you to address the bill.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

Can they effectively introduce these changes? How can that possibly be out of order? Can they introduce these changes? I am asking the question: how is that out of order?

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

You are not being relevant to the bill.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

Asking whether they can implement this bill is not relevant to this bill?

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Dickson has actually not at any stage addressed the bill. I have allowed him 10 minutes of ignoring the bill to make his point.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

Plain packaging tobacco is the bill we are discussing, Madam Deputy Speaker.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

That is exactly right and you went through not the actual bill, the legislation before us, but the history of the Liberal Party. I thought that was reasonable. I have allowed that for 10 minutes. I think in the last remaining three minutes you could actually refer to the bill and the position in your amendments. I ask the member to return to the bill.

Peter Dutton (Dickson, Liberal Party, Shadow Minister for Health and Ageing) Share this | Link to this | Hansard source

Madam Deputy Speaker, I am happy to forward you a copy of the Hansard post this to aid the process, but the point is, in relation to this bill: can the government get it right? Has the government got the right mix in the black letter law that it provides in this bill? Can the government implement policy in this area that is going to be effective? That is the question in relation to this bill that is before this House.

This government has taken a particular course of action. I have outlined the history in this area of public policy. I do think it is incredibly important for the House to consider whether they believe this government can introduce the changes they have before the House. When we examine clause by clause every aspect of this bill, the questions need to be: is the government opening the taxpayers up to liability and will we see the reduction in smoking that we all want? These are the questions that need to be asked. It is rightly put in terms of the historical context because these are the very issues that the minister herself raised in relation to this bill. Why are we at a point in history where we do have low smoking rates? What has contributed to low smoking rates? These are issues which the minister has publicly discussed and which we have debated in this chamber and in the public eye otherwise. These are issues which are rightly addressed as part of this debate.

Can the government get it right in terms of plain packaging? Is this the start of plain packaging, as the government might like us to believe? No, it is not. As I said before, when the graphic health warnings were introduced in 2006 by a Liberal government that was in effect taking away from the bling of packaging that young people saw when they purchased packets of cigarettes. This is a reasonable question to ask as part of this debate: do the Australian public believe that the Gillard government has the ability to introduce these changes, however well intentioned they may be? We want to assist in every way possible the government to reduce smoking rates.

I think it is for the public to judge whether there is a case for the political way in which the government have conducted themselves in this debate. I think it has been a shameful exercise. We want to make sure when we get into government that we do not use the issue of reducing smoking rates, particularly for young people and in Indigenous communities, as some sort of a blunt political axe. I think all of that will be for the people to judge at the upcoming election. I ask people to judge this government by their performance so far.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I speak in support of the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. The contribution of the member for Dickson was the most innocuous and ineffective I had ever heard since I have been in this place. That goes to show how those opposite are all over the place on this legislation. I want to quote from the Australian Medical Association's submission to the House of Representatives Standing Committee on Health and Ageing which inquired into these two pieces of legislation. They support what we are doing here and in their submission to the inquiry they said:

There is evidence that attractive, decorative and brand-recognisable tobacco packaging is intended by the tobacco industry to sustain smoking and encourage its uptake, and that it does have an effect on these behaviours.

The AMA, in its submission into these two pieces of legislation, makes it critically clear that it supports what we are doing with respect to banning all forms of promotion of tobacco products, including at the point of sale, and increasing the taxation on tobacco products, and it outlines the reason for it. This is important legislation, and I commend the AMA for its submission.

I note also that there is a letter which has been sent to all federal parliamentarians from the Cancer Council and the National Heart Foundation, signed by 260 health and medical professors, again making this point:

There is compelling evidence that plain packaging will make an important contribution to reducing the appeal of smoking, particularly to children and young people. The cigarette pack is the last remaining vehicle through which tobacco companies can legally promote their products in Australia and the move to plain packaging has been recommended by key health authorities such as the World Health Organization, the National Preventative Health Taskforce, the AMA, the Cancer Council, the Heart Foundation and the Public Health Association of Australia.

And why are they all coming out in support of this? Because there are real consequences to the use of tobacco in this country. In my home state alone, each year nearly 21,000 Queenslanders are diagnosed with cancer and over 7,000 Queenslanders die of the disease. This legislation that is here is part of a matrix of measures we are undertaking—a package that includes the 25 per cent increase in tobacco excise which we introduced on 29 April 2010.

The use of tobacco has serious consequences to Australians. In terms of the social cost, it costs Australians $31.5 billion each year, including health costs, and on average people who smoke lose 10 years of life expectancy compared to lifelong non-smokers. Sadly, we still have about three million Australians smoking; that is about 16.6 per cent of the population. Smoking is one of the leading causes of preventable death and disease among Australians, killing about 15,500 Australians a year.

So there are good reasons why we are taking this particular measure. The legislation here regulates the retail packaging and appearance of tobacco products to improve public health and give effect to our obligations under the World Health Organisation Framework Convention on Tobacco Control. It makes it an offence to supply, sell, purchase, package and manufacture tobacco products for retail sale, other than products and packaging that comply with the plain packaging requirements. The effect of these amendments is to remove tobacco branding, logos, symbols and other images which may currently be used in such a way as to appear to glamorise the sale of tobacco. The only feature permitted to distinguish one brand from another will be the product name in a standard colour, position, font size and style. This is a world first and it will make a difference, we believe. It has the support of the peak bodies that I have quoted, and I will listen to them rather than to the tobacco companies, who have undertaken a campaign and organised front organisations to simply protect their profits. Why would we protect what they have to say? These companies have a history of not actually accepting the responsibility that they undertake; also, they cannot be trusted with the facts—from Philip Morris hiding second-hand smoking harm for 20 years to the British American Tobacco website, in 2010, belatedly acknowledging worldwide health concerns about smoke causing harm but arguing that the relative risks were weak and did not reach statistical significance. They argued that non-smokers and smokers could be accommodated.

So the health of Australians should not be left to the whims, wishes and aspects of health policies adopted by tobacco companies who are pursuing profits alone and simply want to get Australians more hooked on their addictive products. The reality is that we need to support our young people. If we are going to be involved in the National Preventative Health Strategy, making sure young people live healthy lives and protecting our future generations, we need to undertake measures such as the measures that are before this particular chamber.

These bills enable the development of regulation to specify plain packaging requirements and the conditions for appearance of products. Of course, there are sanctions. As I said before, they are based on penalties set out in the Competition and Consumer Act, and they are quite significant penalties. When I looked at those penalties and at the legislation, I found that they are very substantial. We hope they will act as a real disincentive to breach the law. There is an infringement notice provision that allows infringement notices to be issued to an individual or a body corporate susceptible of committing a strict liability offence. We are talking about hundreds of thousands of dollars—penalty units of that nature—and I think that is warranted.

The second aspect of this particular strategy we are undertaking deals with trademarks. This is where—despite the platitudes, the barking of banalities by the member for Dickson in relation to this and the soothing words—the true facts are that the coalition are all over the place on this and have been. I do not think they have ever had their heart in this particular reform. The Leader of the Opposition has never really been a believer in plain packaging; I do not think he really has. We know that he made this statement on ABC AM on 2 July 2009:

One cigarette I am told does you damage but it does you so little damage. It is only when you start smoking a lot of cigarettes for a long time that it starts doing very serious damage. So being hard hearted to your kids, not encouraging them to be their best, I think are probably much more serious parental crimes and so I personally would not get hung up on something, in my view, as trivial as smoking while the kids are in the car.

The coalition have been all over the place. We saw the member for Dickson not even addressing the amendments that they are putting or this legislation, because they are playing every side of the street on this. You do not know whether they are Arthur or Martha.

This legislation—particularly the second aspect, in relation to trademarks—makes it clear that if necessary the government will quickly remedy any interaction between the Tobacco Plain Packaging Bill 2011 and the Trade Marks Act 1995 that cannot be dealt with under the Tobacco Plain Packaging Bill 2011. The bill amends the Trade Marks Act to permit regulations to be made in relation to the operation of the Tobacco Plain Packaging Bill 2011, including the power to deem conditions to be met and to make regulations that are inconsistent with the Trade Marks Act 1995. We have heard people opposite talk about this. They have made some comments that this would avoid parliamentary scrutiny, but any regulation made under the legislation could be disallowable by the parliament. It is not as if the coalition government did not do this when John Howard was the Prime Minister. They did this in relation to the Trade Marks Act in 2000. The coalition are just playing politics in relation to this. They claim we are, but in fact they are playing politics in relation to it. They used the same regulatory power when they were in government and now they are just simply showing their true colours by saying one thing to health groups and saying another elsewhere. They have not addressed this front and centre.

These are important amendments because they send a very clear message. Cigarette packs will now only show the death and disease that comes from smoking. Too many people have undertaken smoking, and I am sure all of us have been in rooms and places where smoking has simply diminished the enjoyment of that particular space. The new packs are designed to have the lowest appeal to smokers and to make it blatantly obvious of the impacts and consequences of use of tobacco on your health.

These are tough tobacco advertising laws and we do not resile from that. We were the first signatory, the first country in the world to commit ourselves to making sure that we carry out the recommendations in relation to plain packaging. We do it on good national preventative health grounds. We believe it is appropriate to do this and we believe that the necessary legislative framework ought to be undertaken.

I will end shortly in relation to this issue but I want to say that, whether it is by accepting donations from tobacco companies or it is with this sort of legislation, the coalition cannot be trusted on this. For them is it black or is it white—no. This legislation is important and they should support it. If they are going to be consistent with the Australian public and they are going to be consistent in this place, they should support it. They have no good record on which to stand. They have tried to make out that they do, but this legislation is particularly important—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

I am going to try to be consistent and ask the member for Blair to talk to the bill. If I gave it out to the member for Dickson, I am going to give it out to you as well.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

Mandating packaging in a standard dark brown colour will be good for smokers in my electorate, in Ipswich and the Somerset region, because of the lower appeal. We should make sure that the health of Australians is promoted and that people do not die unnecessarily, contract cancer unnecessarily, get bronchial problems unnecessarily, have pulmonary disease unnecessarily or have heart problems unnecessarily. Anything we can do to improve the health and welfare of Australians should be what this parliament is all about. This legislation does it; this legislation goes in accordance with our target. We have a COAG national health agreement aimed at reducing national smoking rates to 10 per cent of the population by 2018 and halving Aboriginal and Torres Strait Islander smoking rates. We should support that legislation, and the coalition should hang their heads in shame by playing every side of the street in relation to these bills.

Warren Truss (Wide Bay, National Party, Leader of the Nationals) Share this | Link to this | Hansard source

I am a nonsmoker; in fact I have never smoked. I have never contributed a cent to the government's cigarette excise tax, and I certainly have no intention of starting. But I guess I have, like everyone in my age bracket, spent quite a bit of time in smoke-filled rooms—particularly before I came into this parliament—attending meetings and functions and just participating in everyday life.

Of course in my early days in this parliament, whilst no-one smoked in this chamber to my knowledge, people certainly were able to smoke right through the rest of the building. There was something of a tortuous campaign over quite a lot of years for smoking to be ended in this place. I can still, I guess, smell the memories of Alexander Downer's cigars wafting down the ministerial corridor. Of course, he was not the only one. There is no doubt at all that the nation's attitude towards cigarette smoking and the perils of smoking has changed. Indeed, I spend a lot of time in my own office and in other places encouraging people to give it up. I suppose I am not coming from very sound ground in that I never had to give it up myself because, fortuitously, I never started. But certainly it is beyond question that cigarette smoking has damaged the health of many Australians and that the decline in cigarette smoking is welcome.

Having said that, this legislation is not going to do anything to reduce the number of people who smoke. As a National I believe first and foremost in the freedom of the individual, and that governments should stay out of the lives of people where there is no clear reason to be there. Australians do not like to be preached at by politicians or anyone else about how they should live their lives. Sometimes when governments intervene the cures end up being worse than the problem. This legislation to impose plain packaging on cigarettes has been described by some as a 'nanny state initiative' and by others as a waste of time. My chief criticism is that for all the cost and the inconvenience it will not deliver any result.

The government, like many previous governments, came into office promising to get rid of regulations: 'one in, one out' was the slogan at the 2007 election. Since Labor have been in office they have created 1,235 new regulations on the last score that I saw and they have repealed 58—another broken promise. This is another piece of regulation that is going to be added to the network; a piece of regulation that will achieve no worthwhile benefit.

As proposed, the legislation represents a significant problem for small retail operators and consumers. It threatens to drive customers from small business into the arms of the retail giants. To cap it all off, as a smoking prevention measure, as I said before, it simply cannot work.

Cigarettes are already required to be stored in places in shops out of the sight of the purchasers. They have to be in closed cupboards—doors in front of the cigarette displays—so people cannot see the cigarettes. They cannot see the packets, let alone what is on the label. So how is this change in the labelling arrangement supposed to deliver monumental reform? In the shops where people might be tempted to buy they cannot even see the packets—it is against the law to display the packets—so why does the colour of the label make a difference?

I heard the previous speaker talk about decorative packaging attracting people to smoking cigarettes. Putting aside the fact that the packaging is not very attractive even now, and assuming that this takes a little attraction away from the decorative appearance of the packs, who would know? They are hidden at the key time away from the customer's sight. They are hidden behind doors so that they cannot be attractive to customers, no matter how decorative the packaging might be.

Wrapping cigarettes in olive coloured plain packets has been proudly proclaimed by Minister Roxon as a world first. That is true, but it is also just Labor-speak for 'untested, untried, unnecessary and with no evidence that it can possibly work'. It is a smokescreen. It is legislation introduced simply to claim some moral virtue but which will achieve absolutely nothing. It is designed more to change the subject away from the carbon tax and Labor's other administrative failures—in particular, Labor's fundamental promise to deliver health reform. Former Prime Minister Rudd said that, if that promise could not be delivered, there would be a referendum to ensure that the Commonwealth had the powers to deliver it. But that has now been abandoned. The Commonwealth walked away from delivering any kind of reform in health. Its fundamental agenda in delivering better services in health to the Australian people has been abandoned, and instead we have this smokescreen, this issue put up in lights which will make no practical difference to people's health. It is only to take their minds away from Labor's failures on matters that really count.

Smoking rates are falling and they will continue to fall, regardless of this legislation. It was the coalition in 1997 that launched what was at the time the biggest ever national advertising campaign against smoking. It was something people could see, something that made them aware of the issues; not something hidden behind closed doors in a retail outlet. It was the Howard government and Tony Abbott as health minister that introduced the graphic health warnings on tobacco products in 2006—again, something that people could see, that was ever-present, when they chose to buy cigarettes and when they took a cigarette from the packet.

Under the coalition government the prevalence of smoking fell markedly, from 21.8 per cent in 1998 to 16.6 per cent by 2007. The decline in smoking rates in Australia, a fall of 40 per cent for men and 44 per cent for women between 1989 and 2007, were among the biggest in the OECD. The fall in smoking rates among women was the biggest in the OECD. So there have been significant achievements. There has been progress made in reducing cigarette smoking. From my perspective I say that is welcome. But this measure will make no contribution to actually reduce smoking rates that can in any way match the rhetoric that is being delivered by government members.

The coalition have said that we will support the bill, but there will be provisos and some amendments because we are concerned that the interests of small retailers are protected. Specifically, the government's consultation with small business has been mismanaged to the point where small business has simply been shut out. Small retailers are concerned that the government's plain packaging proposal will adversely impact on their stock management and complicate their point-of-sale dealings with their customers, causing difficulties in differentiating between packets that look almost identical. The legislation will cause damage to small business. It will add to their costs, reduce their profitability and cost jobs.

In June a report by Deloittes commissioned by the Alliance of Australian Retailers found that plain packaging of cigarettes would have a detrimental impact on service stations, convenience stores, newsagents and milk bars: 'It will result in creating a new competitive advantage in favour of the major supermarket chains.' This is not just an inevitable consequence to small business of a decline in cigarette smoking; this is an initiative which will actually result in people instead of buying their cigarettes from a small local retailer, buying them at the major supermarket chains. So the effect of the lost business for small retailers does not improve smoking rates; in fact it transfers more of the custom, more of the retail sales, to the large supermarkets. This study had really quite incredible figures: a staggering 61 per cent of tobacco consumers and 71 per cent of non-tobacco consumers would choose a supermarket over a small retailer rather than experience the inconvenient delays which this legislation will create at smaller shops.

We know that small retailers are already doing it tough. They are mired in an industrial relations mess; they are forced to lay off staff due to inflexible hours and the work provisions that are legislated. They have the additional cost of a carbon tax ahead of them as well.

Under the legislation as drafted, staff will be tied up with longer and more confused customers, not sure whether they have the brand they choose, wanting to bring them back later when mistakes have been made, spending extra time identifying which brand is which in a shelf where every packet is supposed to look as near as possible to the same.

When your primary business driver as a small retailer is the convenience that you provide—you set yourself up as a convenience store—anything that impedes that valued proposition is a killer. In fact, according to Deloittes research, a 34 per cent reduction in tobacco customers coming through the doors of small retailers would see small businesses lose up to $1,880 a week; $942 a week for the average service station. Small business is the backbone of our economy. We rely on it so much in regional Australia and they are all feeling the pinch. For many, this will be the straw that will break that backbone. These legitimate concerns did not even get a look in. These bills were both referred to the House of Representatives Standing Committee on Health and Ageing. The committee's sole focus was on the health impacts of the bill. Small retailers were denied the ability to even present their case. This has been a glaring fault in the government's entire process. Even the committee's chair, Labor's Steve Georganas MP, stated his view that those aspects of the bill should have been referred to the economics committee and the legal affairs committee. He noted that his committee did not have the scope to deal with retailers' concerns, so they were effectively shut out.

Based on the concerns raised with me and my colleagues by small businesses during the consultations with them, the coalition is moving an amendment to the Tobacco Plain Packaging Bill 2011 that will allow the use of the tobacco company trademark on one of the two smaller outer surfaces of the cigarette carton. That will at least help them with their stock management but will make no difference in drawing attention to the particular brand's trademark at the retail level. The intention is to help overcome these stock management concerns without undermining the public health intent of the packaging proposal.

Australia's bulldust barometers are well tuned, and they have been red hot on this government for a while. In May of this year a Galaxy poll commissioned by the Institute of Public Affairs found that 55 per cent of Australians believe we have become a nanny state and that government intervention and control in our lives has gone too far. The figure in regional areas is 59 per cent. The poll showed that 73 per cent of people think governments are preoccupied with making regulations and imposing control over people's everyday lives rather than focusing on more important issues such as genuine health reform, crime, education, roads and transport.

Mr John Roskam, Executive Director of the IPA, said the polling showed that Australians are fed up with governments making rules that overly interfere with their lives. He said:

An important part of the Australian way of life is the freedom to do what you like as long as it isn’t hurting anyone else. But at the moment, governments are trying to create rules for everything from where I can fly a kite with my children, to how I can enjoy a quiet beer or what sort of food I can eat.

I guess his complaint is illustrated by the latest new campaign to try and put health warnings and cigarette package-style labels on Australian wine. Imagine buying your bottle of Grange—a once-in-a-lifetime investment for most people—and having it all covered up with appalling pictures which make the product look unattractive.

This government have never found a tax they do not love, and they have certainly added significantly to cigarette taxation. That was a tax grab masquerading as health reform. Today we have labelling regulations which are all designed to give the impression of health reform but in fact will do absolutely nothing to reduce the level of cigarette smoking in our country or to improve the health of the nation.

Michelle Rowland (Greenway, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased to rise in support of the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I would especially like to acknowledge the Minister for Health and Ageing for her steadfast commitment to removing one of the last bastions of advertising and promotional opportunities for the tobacco industry, an industry that is responsible for a product which accounts for over 15,000 premature deaths in Australia every year—a product that is accountable for the single largest cause of preventable morbidity and mortality.

We on this side of the House have a proud record of both instigating and supporting anti-smoking, which I would like to reiterate: in April this year, announcing plans to increase tobacco excise by 25 per cent; investing record amounts in anti-smoking social marketing campaigns; the implementation of world-leading graphic health warnings; supporting smoking cessation tools and programs; and prohibiting tobacco advertising online. Smoking rates in Australia have not dropped by magic. It is as a result of such policies.

This bill continues this government's commitment to reducing smoking rates and stopping the very preventable deaths caused by smoking. As outlined in the explanatory memorandum, this bill will prevent tobacco advertising and promotion of tobacco products in order to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people; increase the noticeability of mandated health warnings; reduce the ability of tobacco companies to mislead through advertising; and contribute to efforts to reduce smoking rates.

We all know why we must tackle smoking rates. Smoking is a known killer, despite what some members opposite have espoused in the past and, not so long ago in this place, interjected in some parts of this debate, with cries of 'Where is the evidence?' It costs the economy $31.5 billion per year in social costs, including $5.7 billion per annum attributed to absenteeism and a reduction in the workforce. This government is committed to reaching the COAG National Healthcare Agreement target of reducing the rate of smoking in the Australian population to 10 per cent by 2018. Currently, the rates of daily smoking are at around 15.1 per cent of those aged 14 or older.

This bill will also work towards achieving article 11 of the World Health Organisation Framework Convention on Tobacco Control: 'Packaging and labelling of tobacco products'. For the WHO FCTC to materialise, the drive and commitment which were evident during the negotiations will need to spread to national and local levels, and I am confident this bill will contribute to delivering the WHO FCTC goals in our own local communities.

I would like to turn to some of the main provisions of the bill. This bill will make it an offence to sell, supply, purchase, package or manufacture tobacco products or packaging for retail sale that are not compliant with plain packaging requirements. Chapter 2 of the bill sets out the detailed requirements relating to the packaging of tobacco products and the products themselves. The most notable effects of this bill will be that tobacco company branding, logos, symbols and other images that may have the effect of advertising or promoting the use of the tobacco product will not be able to appear on tobacco products or their packaging. So as to identify the particular brand or variant of the tobacco product, the brand name and variant name will be allowed on packaging in specified locations with a specified plain appearance. Information which is required by other legislation or regulations such as trade description and graphic health warnings will be allowed to appear.

Many years ago as a young smoker, I smoked the glamour brands. I could not afford their jewellery, their clothes or their accessories but I could afford their smokes. So I speak from personal experience about the power of the brand for young people and for young women in particular. I want to talk about one of the main reasons that this is such an important policy area because it will save lives and it will save lives locally. As indicated by the Cancer Council Australia advocacy director, Paul Grogan:

Plain packaging for tobacco products has the potential to be one of the most important policy measures in Australian history for reducing cancer deaths from smoking.

The Cancer Council goes on:

Reforms to how tobacco products are promoted through packaging are essential to reducing the unacceptable level of death and disability caused by smoking in Australia.

I also have a special responsibility to support this bill due to an unfortunate reality that exists in my electorate of Greenway. According to the New South Wales Department of Health, Western Sydney where my electorate lies experiences some of the highest rates of avoidable deaths from causes amenable to health care. This research shows that in every 100,000 males under the age of 75, 77.4 per cent of them will die of avoidable deaths.

A study undertaken by the Australian Institute of Health and Welfare in 2007 compared lung cancer mortality rates amongst people living in Western Sydney, Sydney, New South Wales and Australia. This study found that people in Western Sydney experienced the highest lung cancer mortality rate when compared to the aforementioned regions, and that is why, as I said, I have a special responsibility to my electorate to support these bills.

The Blacktown Local Government Area also has the largest urban Aboriginal and Torres Strait Islander population in New South Wales and one of the highest in Australia with over 7,000 people making up 2.6 per cent of the population. This compares with 1.4 per cent for Greater Western Sydney and only 1.1 per cent for Sydney. Unfortunately, smoking rates among Indigenous Australians are considerably higher than those for the non-Indigenous community in every age group. I am confident this bill will work to reduce smoking rates and work to save lives in my electorate.

This government has listened to the experts in social and health policy and formulated the most effective and efficient way to reduce smoking rates in Australia. In his paper entitled, 'Plain packaging' regulations for tobacco products: the impact of standardizing the color and design of cigarette packs, Dr David Hammond writes:

The evidence indicates three primary benefits of plain packaging: increasing the effectiveness of health warnings, reducing false health beliefs about cigarettes, and reducing brand appeal especially among youth and young adults. Overall, the research to date suggests that 'plain' packaging regulations would be an effective tobacco control measure, particularly in jurisdictions with comprehensive restrictions on other forms of marketing.

Becky Freeman and others writing for the journal Addiction in 2008 note:

Plain packaging of all tobacco products would remove a key remaining means for the industry to promote its products to billions of the world's smokers and future smokers. Governments have required large surface areas of tobacco packs to be used exclusively for health warnings without legal impediment or need to compensate tobacco companies.

This is how successful health policy is formulated; unlike some of those opposite we listen to the medical and health experts and develop policy accordingly.

Recently, big tobacco has been running what I believe is an extremely disingenuous campaign around Australia decrying the government's reforms as an example of the nanny state imposing itself on the free will of the Australian people. Even a select few on the other side of the chamber continue to champion big tobacco's nanny state crusade. We know that they are supporting this bill under duress and I am sure they think they are real heroes, but I would challenge them to watch someone die of cancer and then see how brave they are.

As Professor of Global Health at the University of Melbourne, Rob Moodie, highlights:

Closer to home, governments have been accused of nanny statism in the process of implementing all of our greatest public health reforms.

Government interventions in health have resulted in some of the most outstanding public health successes. Interventions to reduce road trauma with seatbelts and speeding restrictions have saved the lives of hundreds of thousands of Australians. In this debate I have heard arguments of so-called nanny statism going back to complaints about things such as random breath testing, which states introduced so that drunk drivers do not kill innocent people. We have complaints about designated smoking areas in licensed premises. The reason for that is that hospitality workers were dying of passive smoking inhalation.

In the 1950s, 75 per cent of Australian men smoked. Since then Australia has prohibited tobacco advertising, removed sponsorships, restricted point of sale displays, and outlawed smoking in restaurants and bars and many public spaces. As a result smoking levels, as I have mentioned, are now below 16 per cent. But, I am sure the very select few on that side of the House who have spoken out against this plain packaging reform would decry all of these public policy successes as more examples of the hand of the nanny state impinging on our personal liberties.

As well as running a nanny state scare campaign, big tobacco has said, using a curiously illogical argument, that these reforms will not curb the rate of smoking amongst Australians but will still ruin small retailers because they will sell less product. The previous speaker quoted research by the Alliance of Australian Retailers, a body set up by big tobacco. You only need to go to their own website to see that. This is utterly disingenuous and you cannot have it both ways. The writing is on the wall for big tobacco.

This bill continues this government's resolute commitment to improving the health outcomes for all Australians. It is not about impinging on the rights of the individual, but improving the health outcomes of the community. This bill sends a clear message that the glamour is gone—that cigarette packs will now only show the death and disease that can come from smoking.

In closing, I would like to echo the words of the Minister for Health and Ageing regarding this debate:

Big tobacco are fighting to protect their profits, but we are fighting to save lives.

In the words of World Health Organisation's Director General, Dr Jong-wook Lee:

The WHO FCTC negotiations have already unleashed a process that has resulted in visible differences at country level. The success of the WHO FCTC as a tool for public health will depend on the energy and political commitment that we devote to implementing it in countries in the coming years. A successful result will be global public health gains for all.

I think it has been evident to see that this government does have this commitment to achieve the WHO FCTC goals and I am certain we will see public health gains for Australians overall. I am confident in the research. I am confident that this bill will reduce smoking rates in our community, especially amongst our younger people. If we all agree that smoking is undesirable, we need to do everything we can to curb people taking it up and encourage people to quit. That is why I urge all members to support this bill.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I rise to speak on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I follow on from the speech from the member for Greenway, which she just read out to the parliament. This is an issue which the Labor government and the Minister for Health and Ageing, 'nanny-state Nicola', have tried to make completely—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member will refer to the minister by her appropriate title. This is not a debate that should be so willing.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I thank you for your advice, Madam Deputy Speaker, and I agree very much—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

It is not my advice; it is my ruling. It is the standing orders and I would like you to follow them. Thank you.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I will follow your ruling, Madam Deputy Speaker.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

Withdraw!

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

Coming from you, Minister? You complete hypocrite!

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The parliamentary secretary at the table is not assisting.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

This is a debate that we have seen the minister politicise, day in and day out for over three years, with promise after promise of legislation to be presented, and finally we see a bill. What a surprise that the Labor Party introduces a bill, the cognate bill, which we think is fundamentally flawed at law. That is why we will be opposing the bill. Who could trust this government to implement world-leading reform in the first place? This is an issue which I think the parliament should be very conscious of in considering both of these bills.

As the shadow parliamentary secretary for health has indicated, the coalition will support the first bill, and we do so with some reluctance, it must be said—or I do so with some reluctance. I think that what we are seeing here is politics being played out through health policy. We are seeing the politics of the nanny state take over effective consideration of what reasonable health policy should look like.

We just heard the member for Greenway, when reading her speech, moralising that we allegedly run scare campaigns in relation to this issue and then suggesting that those of us on this side should watch people die of cancer. I think that highlights just what the Labor Party are seeking to do in pursuing this legislation. The coalition's record in relation to health outcomes on tobacco is second to none. The Leader of the Opposition, while he was the Minister for Health and Ageing in the Howard government, with the member for Sturt introduced substantial legislation in relation to graphic health warnings on labels. They implemented this measure and it was part of a series of measures that contributed to a reduction in the smoking rate in our population. It was an important health reform that informed people about the dangers they face if they consume tobacco, which today is still a legal product.

What we are now seeing is a step into quite dangerous territory, where the state is beginning to remove the opportunity for people to make decisions about how they live their own lives. This is a step down a path which will lead to several outcomes which the health lobby and people who wish to see a greater role for government in people's lives will use as an example in their pursuit of their aims. Those include putting warning labels on alcohol products and removing people's right to choose what food they eat and how much time they spend watching television—how they live their lives in general. It is a difference between those who sit on this side of the parliament and those who sit on the other side. Those who sit on the other side of the parliament believe that the government has the right and the ability to tell people how to live their lives and how they should regulate their lives every minute of the day. They know better than the individual about how to go about living their lives!

The fact is that people know, and have every opportunity to know, that smoking causes health damage. It causes cancer. It is written on the packet. It says on the packet: 'Smoking kills'. I have never smoked and have never been inclined to smoke, but I defend the right of people to engage in what is a legal practice. With this legislation, we have moved towards an area which raises questions. If the government are willing to do this, think this issue is so serious and want to take this action, why don't they simply ban the activity? Some people suspect that the vast amount of revenue that they receive from the sale of tobacco is probably the reason that they do not just ban the consumption of tobacco.

As I said at the beginning of my remarks, this is an issue which has been overtly politicised by those on the other side. Day after day, we have seen the minister for health come into this place and try and politicise political donations and make politics with this bill. Earlier this year and late last year, during question time on most days the minister for health would draw links and abuse the Leader of the Opposition for allegedly being in the back pocket of big tobacco. That went on until early June, when it was revealed that the minister for health herself had been keen on tobacco company donations. We know that because we have a copy of a letter from the now Minister for Health and Ageing, written when in opposition in 2005—and I understand there was a letter the year later, which was after the Labor Party had decided to no longer accept donations from tobacco companies—to Philip Morris, a tobacco company, seeking donations and seeking their company at a dinner to introduce them to none other than the member for Kingsford Smith. The now minister for health wrote:

Once in every electoral cycle, I approach local businesses, friends and supporters asking for their support so I can continue the work I do as the federal Labor member for Gellibrand and the shadow Attorney-General.

That was the role that she was in at that point. The letter continues:

It is therefore my pleasure to invite you to support my re-election by attending an interesting evening in beautiful Williamstown. On this occasion I am pleased to introduce you to two distinctive members of the Labor frontbench team, Peter Garrett and Stephen Conroy.

Peter Garrett really needs no introduction. Elected last year, Peter is known for his time as Midnight Oil's lead singer and his passion as a committed environmentalist. Peter is currently Labor's spokesman on arts and reconciliation.

The letter then goes on to sing the virtues of having dinner with Stephen Conroy—virtues I do not see—and then says:

I hope that you will be able to attend this evening to gain a new perspective on Labor, the West and the Bay and I look forward to your continuing support.

That just bells the cat on the absolute and utter hypocrisy that we see from the Minister for Health and the Labor Party when it comes to this issue. The minister for health was also not averse to accepting corporate hospitality from tobacco companies, attending the tennis with Philip Morris—according to her own register of interest.

This highlights exactly what this bill is all about—trying to be political with health policy, trying to create a political wedge, trying to create an issue that the Labor Party can campaign on against our side of politics. It says everything about the Labor Party when one of the bills that they have drafted raises serious questions in relation to whether it is even possible to implement it—that is, the bill relating to the trademarks amendment—which is the very reason that we seek to oppose it.

This is not about standing up for so-called big tobacco; it is about standing up for the rights of people to live their lives the way they wish to. As I said, to ensure that this political campaign being run by the minister for health is no longer able to continue, we will reluctantly allow this bill to pass. We do not think it will make a difference to the health outcomes for people. We believe there are better and more efficient ways to ensure that people do not take up the habit of tobacco smoking. There are of course good health reasons not to take up the habit—and I certainly wish people would not. I have never seen the attraction in doing so, but I do see the attraction in ensuring that the spot the government sits in our society is not one where it takes responsibility away from people to the extent that this government seeks to.

I say again that this is the first stop on a bus which is designed to unduly restrict the way that people can live their lives. I think it is a dangerous direction that the country is taking. It is sending the wrong signal to people. It is sending a signal that the government will fix your problem and the government will always make the decision for you. It is taking away people's personal responsibility. It is taking away the right of small business to be able to run their business at what is, in any event, a difficult time.

This is the Labor Party writ large. It is about politics. It is about what their genuine view is about their role in people's lives. We take a different view. We take the view that people can be trusted to make decisions in their own best interest and that the government should not be there to tell them what to do and what not to do, except in the limited circumstances in which a state has a role in our society. This is, I think, a major step across that line. We raise issue with it. I am happy to raise issue with it. I am sure those on the other side will again link us to cancer, as the member for Greenway did—not that they ever run scare campaigns! Recently we saw the Minister for Human Services on the Q&Aprogram accuse us of running scare campaigns and then turn around and say that we would not have any food left in the country in 20 years time. Of course, they on the other side do not run scare campaigns!

Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

And the Central Coast is going to flood.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

That is right: the Central Coast is going to flood is another one. 'It is all factually based information driven by a good health policy,' we heard from the member for Greenway, 'and if you do not support it you support cancer'.

I do raise issues with this bill and I do raise issues with the direction that the government is taking in this respect. I am sure those on the other side will try to make cheapjack politics out of that. But it is the role of this place to question the direction of government policy, and I do question the direction that we are taking in this country where we tell society, 'The government knows better than you.' We do not and we should not. People should be left to make their decision on the consumption of legal products. This is a legal product. If the government are serious about the rhetoric of the member for Greenway, they will ban its use. That would be a more consistent position for the Labor Party to take.

To be lectured to by a minister who, quite frankly, is the biggest hypocrite in this debate—writing to cigarette companies and asking for donations at the same time as trying to get into this place, and abusing us and alleging that we are supporting big tobacco purely for donations—sums up exactly where the Labor Party are at. As I indicated, we will support the first bill, the Tobacco Plain Packaging Bill 2011—with reluctance, I do—and we will be opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

It is no surprise to anyone on this side of the House that the opposition is opposing the Tobacco Plain Packaging Bill and Trade Marks Amendment (Tobacco Plain Packaging) Bill, because the one thing that the opposition in this parliament does, and does really well, is oppose absolutely everything. I was very interested to hear the previous member's comment when he said that individuals need to make decisions in their own interest and they are the best people to take that decision, so when it comes to consuming legal products that individual can make the decision as to what they should do and no-one should interfere in any way. I would assume, then, that the member opposite would be opposed to random breath testing. He would believe that people can consume as much alcohol as they like and drive cars. It seems to me as though the member that spoke previously—

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I bet you wouldn't go up to the clubs and say this.

Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

The member for Shortland will be heard in silence.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

has a very skewed vision on this particular issue. I find it interesting that this legislation was referred to the Standing Committee on Health and Ageing by the Selection Committee. I know it was not referred to the health and ageing committee by any of the government members. Those people that referred the bill should make sure that they refer it to the right committee. They referred it to the health and ageing committee to look at the trademarks amendment part of this legislation, and the bill was referred to the wrong committee. I think that those people that referred the legislation to that committee should take a little bit more care as to where they refer legislation. I will just share with the House the recommendations of the committee. It recommended that the Tobacco Plain Packaging Bill and the Trade Marks Amendment (Tobacco Plain Packaging) Bill pass the House. This was a unanimous report of the committee. The chairman—and I know he is to speak in this debate—pointed out in his foreword that he would like a lot more care taken when referring legislation.

The bill that we have before us regulates the packaging and appearance of tobacco products to improve public health and give effect to certain obligations under the World Health Organisation Framework Convention on Tobacco Control. The bill makes it an offence to sell, supply or purchase packaging or manufactured tobacco products from retail other than products and packaging that comply with the plain-packaging requirements. These offences apply to manufacturers, packagers, wholesalers, distributors and retailers of tobacco packages in Australia who fail to comply with the plain-packaging requirement. The effect of the proposed requirements will be that branding, logos, symbols and other images of tobacco companies that can currently be used to advertise tobacco products will not be able to appear on the packaging, and the brand will be the only thing that can be put on the product. It will be of a standard colour, in a standard position, in a standard font size and in a standard size.

We do have to look at why these steps are being taken by government. It is not to deprive people of personal liberty; it is a health initiative, and it has been widely embraced by people that work within the health sector. The Cancer Council in particular has embraced this legislation. The Cancer Council wrote to all members of parliament and sent a letter to us signed by 260 health and medical professors, and this was to all federal members of parliament. The crux of this letter is that plain packaging will make an important contribution to reducing smoking, particularly among children and young people. So it is designed to remove the incentive for young people to take up smoking. I think that that is a really good outcome if this legislation can prevent young people from taking up smoking, because smoking is exceptionally addictive. I was a smoker, and one of the hardest things that I have ever had to do was give up smoking. That was after my father died as a direct result of smoking. He had his voice box removed. He had cancer throughout his body. Yet I tried to give up smoking and I failed. It was because I was so addicted to this product. There are many people that do not finally succeed and that end up dying as a result of this habit. It is not only cancer; it is heart disease, stroke or a variety of other illnesses that are associated with smoking.

In this letter that the professors from universities throughout Australia have signed, they point out that the cigarette pack is the last remaining vehicle through which tobacco companies can legally promote their products in Australia, and plain packaging will remove this legal avenue. I wonder whether I would have started smoking when I was younger if it had not been portrayed as such a glamorous thing to do—if there had not been the packets of cigarettes with bright pictures and sophisticated people on them. This legislation will remove that incentive for young people to be encouraged to smoke simply because of the packaging of those cigarettes. I am going to refer to a media release from the Cancer Council about the letter sent to all members of parliament from the 260 health professors calling for tobacco plain packaging. It points out that four former Australians of the Year, Professors Sir Gus Nossal, Ian Frazer, Fiona Stanley and Fiona Wood, are all signatories to that letter. They, along with other distinguished experts in health and medicine, support this initiative. We have the health professionals supporting the initiative; on the other side we have the tobacco companies and the opposition opposing it. So we have health professionals who have studied, who treat people suffering from the effects of smoking or who do research into the causes of the diseases I have spoken about who are supporting this legislation, while on the other hand we have an opposition who oppose everything and say that this legislation should not be supported, that we should leave it up to the individual to determine whether or not they smoke. This legislation does not impinge on that, but it does act as a disincentive for young people to take up smoking.

The media release from the Cancer Council emphasises that there is 'compelling evidence' that plain packaging would make 'an important contribution to reducing the appeal of smoking, particularly to young people and children', a fact I highlighted a moment ago. If we can stop young people and children from smoking that is a fantastic step forward. I mentioned this has the support of the four former Australians of the Year. With scientists of that calibre supporting a health policy initiative such as this one, I urge members on the other side of this parliament to think about it seriously because they have an opportunity to make a real difference to health outcomes in this country. They can stand up and say: 'I supported legislation when it was introduced that is groundbreaking, legislation that is unique, legislation that makes Australia a leader in this field.' I do urge those on the other side of the House to think very seriously about it.

Professor Ian Olver, a medical oncologist and CEO of the Cancer Council of Australia, said restrictions to tobacco advertising were 'a critical part of a comprehensive approach to reducing consumption'. He said plain packaging is:

… a restriction to the last main legal avenue for promoting tobacco products to young people in Australia.

Those words are very powerful and very convincing. I say to members on the other side of this House: listen to those words, because you have the opportunity to join with us here in the parliament, vote in favour of this and put out a united message to Australians on this issue.

A campaign has been conducted in which we have received postcards on this issue. But, to me, the most moving piece of correspondence I received was written by a woman who lived just outside my electorate. She was sitting beside the bed of her husband who had been diagnosed with lung cancer. He was recently retired, and when he retired they had had plans to go for a trip around Australia—they had actually bought the caravan. But he started to feel unwell, he visited the doctor and he was subsequently diagnosed with lung cancer. She said she sat beside his bed as he was dying and she said, 'I wish there had been plain-packaging legislation introduced when he was young.' She wished that he had not taken up smoking, because they would then have had their retirement years together and could have done all the things they had planned to do. I feel that says a lot in relation to this legislation.

I will conclude by urging members on the other side of the House to join with us. This is a world first and it sends a clear message that the glamour is gone. Cigarette packets will now only show the death and disease that come from smoking. The new packs have been designed to have the lowest appeal to smokers. I ask those on the other side of the House to ask themselves this one question: why are the tobacco companies opposing this legislation? They are opposing the legislation because they know fewer people will smoke. That will end up in better health for all Australians, so I urge all members to support this legislation.

Alex Hawke (Mitchell, Liberal Party) Share this | Link to this | Hansard source

I rise to make a contribution in this debate on the Tobacco Plain Packaging Bill 2011 and Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 following on from the member for Shortland. Sometimes I think I am cursed to follow the member for Shortland. I do think this legislation is bad law. I do think there has been no credible argument made by the government about how plain packaging will reduce the rates of smoking in Australia today. For us as a parliament to take away the intellectual property of legal corporations and entities in Australia today, I think we ought to pause and think very seriously about the ramifications of doing this sort of thing by law.

I refer to what has happened in Canada. Yes, it is true that we are the first jurisdiction looking at implementing plain packaging in the world today. Canada considered this in detail. Indeed, in 1995 when a health study When Packages Can't Speak:Possible Impacts of Plain and Generic Packaging of Tobacco Products appeared, the government considered it and there was some evidence that there would be some change. However, the Canadian government did not proceed with plain packaging. They believed it would violate Canada's international trade obligations with respect to intellectual property. Despite the fact that the government did not proceed with plain packaging following the consultation, during the parliamentary debate the Minister of State for Public Health, Gillian Merron, noted that the government chose in 2009 not to proceed with plain packaging because of lack of convincing evidence. I quote:

No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. Given the impact that plain packaging would have on intellectual property rights, we would undoubtedly need strong and convincing evidence of the benefits to health as well as its workability, before this could be promoted and accepted at an international level ...

Amen to that. She makes great sense. This is an intellectual property issue. We have a serious issue before us today because there is no proven evidence that demonstrates this will have any impact on health—none whatsoever, and certainly none that is convincing.

Listening to the arguments of the Labor Party backbench is mind-numbing in itself. They do not speak about the impact of alcohol, which kills more people in Australia every day. They do not speak about illegal drugs. We all know, for example, that alcohol will increase the rate of loss of brain cells. Every single drink has a negative health impact on you, yet there has not been a word about it from the Labor Party. Listening to the ALP backbench trying to explain how their bad legislation will work is enough to make you want to go back to your office and lose some more brain cells, because I can tell you, Madam Deputy Speaker, this is badly thought out law.

From any angle you approach this question, it is obvious that the government is engaged in a political question and not in a serious attempt to improve health in Australia today. They have railed here today against the nanny state campaign that is being run against them. But that nanny state campaign is tapping into something that I regard as extremely important going on in Australia today.

The Minister for Health and Ageing is the flag-bearer of this government for the nanny state. I have a confession to make to you, Madam Deputy Speaker, and to this House: I do not like the term 'nanny state'. I think 'nanny' is quite a benign term for what we are really talking about, which is the government's intentions and what is actually going on with its series of ill-thought-out and badly planned legislative responses to challenges that it faces. The alcopops-increased taxation produced a spike in the sale of hip flasks in Australia by 21 per cent. The hip flask industry thought all its Christmases had come at once because this government came up with an ill-thought-out, badly proposed piece of legislation. How much money do we think has actually been returned to alleviate the impact of alcohol on health today? If we looked into that, I wonder what we would find.

There is not any suggestion in this legislation before us today that there will be any impact on smoking rates. The member for Greenway said we need to do everything we can. If the government wanted to do everything it could to reduce the rate of smoking it could ban it today; it could outlaw this product. There is a good reason why governments will not do that and why the minister for health, who repeatedly talks about this product killing people, will not do that. It is because of the billions of dollars of revenue collected from tobacco excise. In fact, there is a net benefit to the health system from the money collected from tobacco excise compared to the money expended in dealing with problems created by tobacco.

I do not support smoking and I do not smoke myself, but I do support the rights of Australians to do what they like in their free time within the law. This is a legal product. I say to the member for Greenway: when we were on the stage together in front of 900 workers at the Blacktown Workers Club she should have made her remarks about tobacco plain packaging there. There was a woman there with a sign that said, 'I am an adult. I do not need the government to make my choices for me.' Amen to that, because that woman with her sign and those workers at the Blacktown Workers Club all know what is going on in this country today, and that is the scope of government is going too far, intruding into the lives of ordinary Australians. This legislation is another good example of it.

How will plain packaging reduce the rates of smoking amongst young people? How will it do that? Nobody on this backbench has told us. Not one person has advanced an intellectual argument about how this will practically work. That is because there is not one. What we are doing in Australia today is paying committees and bureaucrats to determine if the drab and dull colours and the sizes of different words will have an impact upon people's choices in smoking, ignoring the fact that all cigarette packets are already concealed behind counters; they cannot be seen. There is no tobacco advertising in Australia today. This is not a strong, powerful step of a government committed to actually doing something about the rate of smoking in Australia today. Every member of this place knows this is a political wedge by a government desperate to change the conversation from anything that is dragging it down, which is basically its whole legislative agenda.

I have grave concerns about the provisions of this bill. When you look through it you see what it is attempting to do with the different divisions. Chapter 4 refers to powers to investigate contraventions of this act and chapter 5 refers to enforcing compliance with this act. I want to stand up for those small and independent retailers all around the country who will suffer the detrimental impact of this bill. Once again, we are going to ask the very small business sector to handle the consequences of a piece of legislation that is ill thought out and will not achieve its objectives. Once again, we stand in this place with a bad attempt to do very little on a question that will affect the ability of small business to survive. Not only do a lot of small petrol stations rely on trade from people coming in to buy cigarettes, not only do small corner shops rely on them, but a lot of small businesses in this country get significant proportions of their trade from people who buy cigarettes.

A study by Deloitte Australia, an independent accounting firm, shows us convincingly and compellingly that the outcome of this legislation will favour major retailers and major supermarkets. I take that very seriously. Once again, we are hurting the people at the very end of the equation that have nothing to do with this, the small business owner, with no thought and no regard to how their operation will continue to function. 'Just deal with it somehow' is the approach of this government to small business on every occasion. They do not take into account stock management, shrinkage, the loss of customers and the loss of business. The Alliance of Australian Retailers is perfectly right to stand up for itself and point out that this is a violation of its rights. Once again, this is a government that has a careless and utterly thoughtless approach to the carnage it creates in the economy.

The intellectual property questions relating to this bill will be tested at law. We have heard from tobacco companies that there will be legal action taken in relation to our WTO obligations—and, yes, Australia has world trade obligations. Of course these should be tested at law. It is not outrageous that a company having its intellectual property and branding removed by the government should take this to the court and have it tested. In fact, when you look at the Paris convention in 1883, the rounds that the WTO has been engaged in around the world, the North American Free Trade Agreement and all the different agreements and pieces of legislation around the world protecting intellectual property, you can see that this is a serious question for consideration. The government will have to demonstrate the efficacy of this proposal in court—and so it should under WTO obligations.

No government should be allowed to rip property from any corporation or any entity without using just terms acquisition. I would certainly stand up for the right of any farmer, any landholder and any property owner in this country not to have a government remove their property rights, whether they be physical or intellectual property rights, without just compensation. Yet we are proposing a bill here today that is in effect removing the intellectual property rights of these corporations.

If any member of this place thinks that this is the last time we will see such a proposal, I think that is complete and utter nonsense. I warn every member here: we will see this again. Not only will the public health lobby move on alcohol and fast food if this works but they will continue to seek the removal of intellectual property rights from corporations engaged in the production of other things in our society today including fast food and alcohol. I do not believe that that is the right approach either.

In fact, the whole public health mentality of the government is ridiculous. The health of people relates to individuals. There is the person's individual health; there is no such thing as the public health. You cannot give a pill to the public health. The Labor Party's backbench is trying to say that if we pass plain-packaging legislation cancer will be removed from Australia—a completely ridiculous contention. There is no law that we can pass in this place to remove cancer. There is no law we can move in this place to say life is not dangerous. There is no law we can move to prevent bad choices by individuals in our economy. There is no law we can pass saying, 'Be healthy.' There is no law we can pass in this place to say to people that they will live a long and prosperous life. In fact, we have a better system in Australia than many other free countries in the world and we ought to recognise that. People are free to make their own individual choices—good ones and bad ones.

Yes, I think we should pass laws where smoking impacts upon other people. Yes, of course we should do those things to ensure that when you engage in an activity you are not having a negative impact on someone else. But, if the government determines that this is a legal product, which it does; and if it determines that you are allowed to manufacture it, which it does; and if it allows the industry to employ, produce, manufacture, sell, distribute and, yes, then taxes it, it ought not to go in there and say, 'Well, at the end of the day we have got a committee of bureaucrats that the Minister for Health and Ageing has put together and they have decided that your product is going to be olive green, because we do not like your product.' That is exactly what has happened in Australia today.

I do not think that is right. All the important decisions have been made. When the minister for health says, 'This kills people,' if she believes that this kills people, she should come in here and propose a law banning the product. That is what she should do. I have got news for the minister for health and the government: life kills people. Life is a dangerous activity. There are no laws that we can pass to prevent that. There are no laws we can pass to change that. And it is disturbing to listen to the Labor Party backbench attempt to articulate some sort of argument that having a drab colour on a packet of cigarettes will prevent cancer or stop people dying. There are all sorts of stories. There are very compassionate circumstances and they are very difficult for the people involved, but a law will not remove those circumstances from happening. It will not alter them. People will still make bad choices. People will still be free to do those things, and so they should be in a free society.

There is a way to improve the public health and that is by making people responsible for their individual health choices, making them more responsible for their own health. That must be the focus of good and effective government policy. The criticism I have of this legislation is not that I am pro smoking and want to see smoking everywhere in Australia today. It is that there is no evidence based policy that suggests that this will have an impact on the rates of smoking, yet that is the reason stated in the objective of this bill. There is no argument credibly advanced by those opposite that this is the approach that will stop smoking.

There are ways of stopping smoking in Australia today, but of course this is the misnomer of Australian politics in this sort of question—the government is addicted to the revenue. The government wants this revenue and it cannot say no to it. That is the hideous position we are in in passing a law removing the intellectual property rights of corporations in this country, legal corporations providing legal products: because we cannot live with a situation where the government takes the revenue and will not do anything about a product that the health minister herself says is killing people.

I will also say in the final minute that I have that I reject this approach to law. I think it is poor. I think that it will lead to more unintended consequences for small retailers, and small businesses all over the country will suffer as a result. It will not have a great impact on smoking at all. It now threatens to undermine one of the key tenets of the rule of law in our society today, and that is property rights. Without property rights, there is no law—that is a famous quote—and if we attack intellectual property rights in a way that is not justified, and I do not believe it is justified under this legislation, we are undermining the rule of law in our country today and in a way, I think, that will not produce better health outcomes for Australians. So why are we doing it?

Mike Symon (Deakin, Australian Labor Party) Share this | Link to this | Hansard source

I speak in support of the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. These bills will enact important and, I say, overdue changes to the packaging of cigarettes and tobacco products. As a former smoker, I must declare my interest in this debate. I am fortunate that I gave up nearly 20 years ago and, although it makes me feel somewhat aged, I can report that at the time I gave up a packet of cigarettes cost $2.28. I do not think that I would be in the same health I am today had I kept that habit up. Even when I was young and smoking, the effects of it, although I did not notice them at the time, were certainly not good for my health. Over the decades of health reform, tobacco advertising has been phased out and warnings against smoking now take up 30 per cent of the packaging. Tobacco companies now have one place where they continue to advertise and market their product, and that is the packet itself. Research has shown that the packaging style, logos, fonts and colours develop brand loyalty and market cigarettes for the tobacco companies. If I think back to when I used to smoke, I certainly think that was the case—I wanted the pack that looked the best. Now I am older and maybe some would say not wiser I have got over that and that is a good thing, but many more people need to.

The Tobacco Plain Packaging Bill 2011 will prohibit the use of all tobacco industry logos, brand imagery, colours and promotional text on the retail packaging of tobacco products. The bill will mandate that the brand name is in a standard colour, position, font size and style and that the packaging will be a standard drab dark brown or olive colour. Again thinking back to when I used to partake, that was certainly not the case. I used to like the ones that came in a gold packet. To take that away I think is a good driver.

This bill makes it an offence to sell, supply, purchase, package or manufacture tobacco products in retail packaging that does not comply with the requirements. The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 seeks to amend the Trade Marks Act 1995 to enable regulations to be made in relation to the use of trademarks under the Tobacco Plain Packaging Bill 2011.

Importantly, this legislation will establish the first ever plain-packaging laws in the world. It is great to be first when it comes to public health. I know the world will be watching us. I think that is why we have had such interest from big tobacco in this debate. We are taking this action because tobacco is not like any other legal products. Ian Olver, the CEO of Cancer Council Australia, said:

We have argued very strongly that tobacco is a unique product, because it kills 50 per cent of people who use it as it was meant to be used.

The Australian Medical Association said:

Tobacco smoke contains many poisonous chemicals, some of which cause cancer.

It includes:

Tobacco remains one of the leading causes of preventable death and disease among Australians. Every year tobacco kills over 15,000 people in Australia. On average, I know that that is 100 people each and every year per electorate, including my own electorate of Deakin. Let us do a comparison with the national road toll, a figure we see quite often in the news. It is good that we are making progress and that number is down. The national road toll is now 1,368 deaths per year, which is less than one-tenth of the number of deaths from tobacco. This is where this debate sometimes gets a little lost. We are talking about 15,000 people. Of course, they are only the ones who die. There are also those who become chronically sick and require great amounts of funding to remain alive, whether they be in hospital or need treatment with drugs or surgery. That is something the Australian public pays for. That cost is estimated to be around $31.5 billion a year.

It is obvious that the government needs to act to cut smoking rates and to cut the number of Australians dying from tobacco related health issues. These bills are part of the government's antismoking action package aimed at delivering on our commitment to reduce the smoking rate to 10 per cent by 2018. It is also worth looking at the statistics in this debate. From the mid-20th century to the mid-1960s, a majority of males aged 16 and over were smokers and around a quarter of females aged 16 and over were smokers. The latest 2010 National Drug Strategy household survey data indicates that in 2010 around 20 per cent of males and 16 per cent of females aged 14 years and over were smokers. Overall, just over 15 per cent of the population aged over 14 were smokers in 2010, or around three million Australians. On the basis of these figures, Australia has the third lowest overall prevalence of smoking in the world, behind Sweden and Canada. But, as I said before, we still have over 15,000 Australians dying from tobacco related disease each year and we as a nation have to do more to bring down the rates of smoking.

The government has introduced a comprehensive package to reduce smoking rates. This Tobacco Plain Packaging Bill is just one part of the package. Other elements of the package include the 25 per cent increase in the tobacco excise in April last year that has seen tobacco sales fall by 8.8 per cent since that time, additional funding for the Quitline, more than $87 million in antismoking campaigns on television and through other mediums and in February this year for the first time the government introduced subsidies for nicotine patches on the Pharmaceutical Benefits Scheme. That has been widely appreciated by many constituents who had been writing to me and calling me for a long time to get that included on the PBS. Certainly they are happy that the government is able to assist them to give up the habit. With nearly 100,000 scripts issued so far, I know it is happening in other electorates as well.

The initiatives I have listed are some help for smokers to give up and help reduce the substantial health costs of smoking to the nation. The Tobacco Plain Packaging Bill is the latest step in the government's fight to reduce rates of smoking in Australia.By restricting tobacco industry logos, brand imagery, colours and promotional text, the packaging will be drab, which is a good thing. The packaging of cigarettes and other tobacco products is the key way tobacco companies market their products, develop brand loyalty and create what they hope is a desirable image. One Philip Morris executive is reported as having stated:

In the absence of any other marketing messages, our packaging … is the sole communicator of our brand essence. Put another way—when you don’t have anything else—our packaging is our marketing.

Tobacco packaging is a highly effective marketing tool in the sense that cigarettes have a high degree of social visibility. Tobacco researcher David Hammond notes:

Unlike many other consumer products, cigarette packages are displayed each time the product is used and are often left in public view between uses.

There is substantial evidence that the tobacco industry employs packaging as a means to influence sensory and health perceptions of tobacco products. Through descriptors such as light, mild and low tar on tobacco packaging, the industry conveys the false perception that certain brands deliver less tar, lower health risks and are less addictive than regular or full-flavour brands. The colour and design of packaging are used to impart false beliefs about both the taste and the risks associated with different tobacco brands. David Hammond argues:

Different shades of the same colour and the proportion of white space on a package are commonly used to manipulate perceptions of a product's strength and potential risk.

Consumers tend to perceive white and lighter colours as being healthier. Research shows that adults and adolescents in scientifically controlled studies perceive cigarettes in plain packs to be less appealing, less palatable, less satisfying and of lower quality compared to cigarettes in current packaging. Plain packaging would also affect young people's perceptions about the characteristics and status of the people who smoke particular brands.

An expert panel commissioned by Health Canada in 1994 investigated the potential impact of plain packaging. Based on the mostly converging results of five different studies, the expert panel concluded:

Plain and generic packaging of tobacco products … through its impact on image formation and retention, recall and recognition, knowledge, and consumer attitudes and perceived utilities, would likely depress the incidence of smoking uptake by non-smoking teens, and increase the incidence of smoking cessation by teen and adult smokers.

The World Health Organisation Framework Convention on Tobacco Control recommends that parties to the convention introduce plain packaging. The WHO advises:

Packaging and product design are important elements of advertising and promotion. Parties should consider adopting plain packaging requirements to eliminate the effects of advertising or promotion on packaging.

Under the government's plan the only thing to distinguish one brand from another will be the brand and variant name in a standard colour, standard position and standard font size and style.

This legislation will also ensure that the current graphic health warnings will increase the coverage on the front of the pack from the current 30 per cent to 75 per cent, along with updated imagery and warnings. The government's intention is that, rather than being a marketing tool, the pack will serve as a stark reminder of the devastating health effects of smoking.

In 2008 the federal government commissioned the Preventative Health Taskforce to investigate reducing tobacco-smoking rates in Australia. Its report, released in September 2009, concluded that there can be no justification for allowing any form of promotion for this uniquely dangerous and addictive product including on the packaging. In line with the international evidence, the task force said that plain packaging would increase the impact of health warning messages, reduce the ability of tobacco companies to mislead consumers into believing that some cigarettes are less harmful than others, make cigarettes look less attractive and reduce the appeal and desirability of smoking generally.

Since the government announced its intention to introduce plain packaging, the Department of Health and Ageing has undertaken targeted consultations with organisations representing large and small retailers, with cigarette and cigar importers and with the major tobacco manufacturers; and the government held a 60-day public consultation period on an exposure draft of this bill. Consultation on the exposure draft of the bill showed overwhelming support for the measures we are proposing, from public health groups both within Australia and internationally.

In addition, we have listened to concerns raised with our proposals during these consultations—and legitimate concerns have now been taken up in the final bills that we are now debating. For example, to assist in identification of illicit tobacco products, manufacturers will be permitted to include certain design features that do not run counter to the public health objectives of the measure. The brand name will be permitted on the top, front and bottom of cigarette packs to assist retailers in handling tobacco products. All product manufactured in Australia will need to comply with plain packaging as of 20 May 2012. This will allow retailers time to restock and ensure that they have disposed of non-compliant product before 1 July 2012. To assist small-scale importers and small business with compliance, imported tobacco products will be able to be repackaged after importation into Australia.

The response from the health community to this legislation has been very positive. The AMA fully supports the introduction of plain packaging. It said:

The plain packaging will probably be a more effective deterrent for new and prospective smokers than established smokers.

It should help prevent children and young people from taking up smoking in the first place by decreasing the attractiveness of the packaging.

The Cancer Council of Australia said:

Plain packaging for tobacco products has the potential to be one of the most important policy measures in Australian history for reducing cancer deaths from smoking.

They also said:

Plain packaging is predominantly about deterring young people from becoming addicted to tobacco products.

But what has been the response of the tobacco industry? Unsurprisingly, they have done everything possible to stop this legislation, spending millions of dollars on TV and print media campaigns and serving legal action on the government. It all goes to show that they are very concerned about the positive effects that this legislation can have. The federal government's actions are being applauded by the medical community and will have a real impact on the take-up of smoking by young Australians. I think this is a wonderful measure and I certainly commend these bills to the House.

John Alexander (Bennelong, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the plain packaging in reinforcement of the coalition's position to support the Tobacco Plain Packaging Bill 2011 with amendment, and to oppose the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I speak on this legislation as someone with a lengthy track record on the promotion of health, fitness and preventative medicine, and also as a proud member of the Liberal Party that has a strong history and proven track record on the issues of tobacco control and reductions in smoking rates in Australia.

The first tobacco advertising code for television was introduced by the very first Liberal Prime Minister, Sir Robert Menzies, in 1966. Ten years later Liberal Prime Minister Malcolm Fraser introduced a ban on television and radio advertising of tobacco products. More recently, the Howard government, under the stewardship of the member for Warringah as Minister for Health and Ageing, introduced the graphic health warnings on tobacco products, reformed cigarette taxation to a per-stick excise, and presided over the biggest decline in smoking rates whilst in government. Under the coalition government, the prevalence of smoking by Australians over the age of 14 declined from 21.8 per cent in 1998 to 16.6 per cent by 2007, giving us one of the lowest rates of smoking in the world and the largest fall in smoking rates amongst women across member countries of the OECD. I make this point in recognition of the Labor government's misleading public relations campaign to paint the coalition as soft on tobacco companies. After all, it was the coalition who first proposed an increase in the tobacco excise in 2009. This measure was soon adopted by the Rudd government.

The issue of tobacco control is not a religious matter. The legislation being debated today does not call for a philosophical position on 'you are either with us or against us'. There is total agreement and acceptance in this place and in the broader community that tobacco products are bad for one's health. Cigarettes are an addictive product that will hasten the likelihood of an individual contracting one of our nation's greatest killers: heart disease, lung disease, emphysema or other related diseases. These facts are not challenged. This is not the issue that is up for debate today.

Due to the addictiveness of nicotine, there is no silver bullet or magic potion that can make a smoker see the light, embrace the error in their ways and never smoke again. One of the enduring errors made by well-intentioned anti-smoking individuals and institutions is a lack of genuine empathy for the difficulties that a smoker faces in freeing themselves of this awful addiction. All smokers know the habit is bad for them and most of them wish they had never started. Changes to advertising and the addition of warning labels can assist in getting the message out and preventing the historic imagery of heroes, from Frank Sinatra to the Marlboro Man, with a cigarette in hand. These changes can affect those at the edges, but the science is also clear: long-term heavy smokers will smoke their cigarettes regardless of the colour of a package or the lack of pictures of their favourite stars doing the same.

Throughout this debate we must keep in front of mind one essential fact: the manufacture, retail, purchase and consumption of cigarettes are all legal activities regulated by the government and contribute considerably to the general revenue through excise duties. Until legislation passes this place to prohibit these activities, as we do with other recreational drugs, we need to be very careful that we do not infringe upon the commercial rights of those pursuing a legitimate business activity that we permit through regulation. Certainly, this activity may be demonised and lead to considerable financial burdens on society through our generous public health system but, regardless, it still remains a legal business activity. For those ardently campaigning for any form of punitive measure to be applied on the tobacco companies, a debate on prohibition may well be a more appropriate discussion, but that is not the issue at hand today.

A reduction in smoking rates, particularly amongst our youth, is a worthy goal to which all members in this House aspire. The question that remains is whether this particular bill is the right means to that end. As I stated earlier, there is no silver bullet to resolve this question. It is clear from domestic and international experiences that a concerted focus and a well-managed tobacco control strategy is the best way to achieve this goal.

There is a fear amongst many that this particular legislation measure, like so many other initiatives by this government, is designed more towards the attainment of headlines of action and creating the perception that something is being done on this issue rather than acting as a legitimate exercise in reducing smoking rates in our country.

There have been some legal concerns raised about this bill. These relate to the legislation equating to an acquisition of property on other than just terms, which contravenes section 51 of the Australian Constitution, article 20 of the Trade Related Aspects of the Intellectual Property Rights Agreement, to which Australia is a party, through to World Trade Organisation claims that 'The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements.' There is dispute on whether this legislation is covered by the health exception to this agreement. Also, is it a violation of the 1993 Australia-Hong Kong investment treaty?

The coalition has been forced to accept on face value the minister's claims that the legal advice surrounding her plain packaging proposal is robust as the government has refused to provide us with a copy of the legal advice on which these assertions are based. I can only assume that the government does indeed have some doubts about the robustness of the advice as they have felt it necessary to include a specific provision in this bill to assert that it will not apply to the extent that it will cause acquisition of property on other than just terms under section 51 of the Australian Constitution.

The government's consultation with small business and retailers on this legislation has been found to be lacking, despite the sizeable regulatory and administrative burden that this will put on these already struggling small businesses. I have received countless amounts of correspondence from affected retailers in my electorate of Bennelong who are concerned about the way this proposed legislation will impact upon them, from stock management through to the point of sale. The obvious concern with generic plain packaging is the difficulties this will give the small business owner in differentiating between packets that look almost identical. This issue has not been addressed by the government and will be assisted by the coalition's amendments, and I will talk to those shortly.

Another valid concern arising from the change to plain packaging is the ease with which counterfeiters will be able to imitate and mass-produce generic plain packages. Australia has a strong reputation on customs and border control on this issue, with 743 tonnes of tobacco and 217 million cigarettes seized by the Australian Customs and Border Protection Service over the past three years. Articles 15 and 20 of the World Health Organisation framework recommend the implementation of a track-and-trace regime for tobacco products. The government have failed in considering these issues in this legislation, instead preferring the tobacco companies to manage their own tracking of tobacco products on a voluntary basis, despite this being in contravention of articles 7.2 and 7.12 of the draft protocol to eliminate illicit trade in tobacco products which states that the obligations of each party 'shall not be performed by or delegated to the tobacco industry'. In short, the government has completely ignored the counterfeit tobacco issue which will no doubt arise from this legislation. Any increase in counterfeit tobacco means less tax revenue to pay for the health implications that result from tobacco smoke and will therefore enable this to be yet another piece of government legislation that weakens our nation's economic position.

As is common practice with controversial and far-reaching legislation like this, the two bills being discussed today were referred to an inquiry. Despite the coverage of these bills across a range of policy areas, the House of Representatives Standing Committee on Health and Ageing was the only committee to inquire into this bill, and it focussed solely on the health impacts of this bill. The committee did not deal with the impacts on small retailers or on illicit tobacco, leading the chair of this committee, a government MP, to make a specific suggestion that concerns over these issues should see these bills referred to other committees as he did not have the scope to look into these matters. Instead of following the correct processes of inquiry and a reasonable amount of consultation and transparency with stakeholders and the opposition, the minister has instead sought to politicise the issues surrounding plain packaging and tobacco control for her own political gain.

The Minister for Health and Ageing has promoted the attitude that if you have any concerns with this bill then you must be in the pockets of the tobacco companies. This is a reprehensible approach to take to a serious piece of legislation, and shows the disrespect that this government has for the intellectual capacity of the common voter. I can certainly declare from a personal perspective that the last time I came even close to a financial or professional association with a tobacco company was when I competed in the Marlboro Australian tennis open during the seventies.

Russell Matheson (Macarthur, Liberal Party) Share this | Link to this | Hansard source

You won that?

John Alexander (Bennelong, Liberal Party) Share this | Link to this | Hansard source

Semifinals. According to this minister's definitions, that would place me squarely in the pockets of big tobacco. It is an irony not lost on me that this is the very same minister who was found to have accepted hospitality from big tobacco at the Australian Open championships just a few years ago.

As I mentioned earlier, while the coalition is broadly supportive of the intention of this bill, the devil is always in the detail and we have some concerns to which we will be moving an amendment to improve this legislation. This relates to concerns raised by small business during consultations we have had with the industry—concerns that have fallen on the deaf ears of this government. The coalition's amendment to the Tobacco Plain Packaging Bill will allow the use of tobacco companies' trademarks on one of the two smallest outer surfaces of a cigarette carton. This is designed purely to assist in the retailer's ability to effectively manage their stock that often consists of cartons piled high in a storage facility. This trademark or logo will not be added to the individual packets, which is what the consumer purchases, but just to the packaging of the carton that contains a number of packets, usually eight or 10. This is a common sense initiative. It is an improvement to this legislation that cannot be seen in any way to adversely affect public health and it should be supported by this government.

The second bill, the Trade Marks Amendment (Tobacco Plain Packaging) Bill, was first seen by the opposition when it was introduced into this House by the minister on 6 July. Contrary to standard practice, it was not flagged or issued as part of the government's exposure draft or the legislation's consultation paper that was released in April. As a result the coalition has referred this bill to the Senate Standing Committee on Legal and Constitutional Affairs to consider the specific provisions, to investigate any issues they create and ultimately to consider their constitutionality.

The grave concern we have for this amendment bill is contained in clause 231A, known as a Henry VIII clause—an exceptionally uncommon clause that gives the minister the power to override the legislation that has been agreed by parliament, through a regulation that requires no parliamentary scrutiny. In this particular scenario, a regulation made by the minister could override the Trade Marks Act, going against the basic legal principle that an act trumps regulations. In the past these clauses have only been used when there are no alternatives, and the lack of inquiry or scrutiny into this rushed legislation has certainly not convinced the coalition that this is the case. The trade marks amendment bill is not a necessary piece of legislation for the government to continue to implement its plain packaging agenda, and therefore we will be opposing this particular bill. We do not agree with the minister being legislated to receive the power to alter or remove trademark rights in relation to the government's plain packaging legislation by overriding the Trade Marks Act through regulations.

As I stated at the start of this speech on this very serious issue, both I and the coalition more broadly have a proven track record on the issues of tobacco control and reductions of smoking rates in Australia. Yet the importance of an issue should not be used as an excuse for the rushing through of ineffective and inappropriate legislation that is designed to create a headline rather than to achieve a genuine outcome. The best legislative response on this matter will be one based on consultation with stakeholders, particularly with the retailers and small businesses directly affected, and not on a grab for power so the minister can fix her mistakes later on.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the Tobacco Plain Packaging Bill 2011, but at the outset I will make some remarks regarding the member for Bennelong's speech on the referral procedure and the health and ageing committee's investigation into the inquiry. The members opposite are complaining that there was no proper inquiry or that the processes did not take place as they should have. I can only assume that those on the selection committee who referred the bill to the House of Representatives Standing Committee on Health and Ageing would have been opposition party members. I say that because on this side of the House we were very satisfied with this particular bill, with its implications and what its outcomes would be. A member of the opposition on that particular selection panel referred the bill to the House Standing Committee on Health and Ageing, so for the opposition to then complain that it did not look into the trade practices aspects when it is clearly a health and ageing committee—it is outside our parameters to have a look at other issues. The committee looked at this particular bill and held the inquiry to look into the impact on people's health, and that is exactly what it did. If members of the opposition are going to criticise the inquiry perhaps they should have a good look at themselves and go through the processes to work out what they want to achieve before they refer bills to standing committees. I have to say standing committees in this House have always had something of a non-political nature. People have worked very well together from all sides of politics to achieve good outcomes. What we are seeing is the politicisation—

Bruce Scott (Maranoa, National Party) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.