Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Hansard source

If that is necessary, Senator Feeney, we might think about that, but it will be very difficult. Short of killing the smokers it will be very difficult to achieve. None of the measures, none of the policy levers, available to government at this point in time, frankly, are easy quick fixes or silver bullets. It is true, I think without doubt, that plain packaging of tobacco products will make a difference. It is also important not to exaggerate the extent to which it will make a difference. Unlike billboards, ads on TV, ads on radio and the sorts of things most of us experienced as children, the penetration of tobacco packets is a much, much smaller part of the once all-prevalent imagery of tobacco products around this nation.

I do not doubt that we will make a difference with this legislation, but I sincerely doubt that with this measure alone there would be a huge reduction in tobacco use in the next decade or so. This is not to in any way suggest that there is anything wrong with this measure. I agree with Senator Faulkner who said that preventing even one child from picking up a packet and lighting the contents is a victory and needs to be pursued. If we can do that, we are doing some good by passing this legislation today. But let us not work ourselves into a frenzy about how much we achieve. After this legislation is passed there will be a lot more hard work to be done in reducing the deprivation caused by tobacco in this community.

I said that I was concerned about aspects of this legislation. I have to say that I remain concerned. We are in relatively new territory here, as Senator Di Natale said, although there are studies suggesting that there is a persuasive effect in the way in which tobacco packets are designed. It is also true to say that, to date, no nation has yet adopted the measures that we are embracing today. So, we do not know for sure what the effect of them will be either in terms of users or potential users of tobacco products or in terms of the other implications of this legislation.

For example, it has been suggested by the tobacco industry that the plain packaging regime could constitute the acquisition of property on other than just terms in contravention of section 51 of the Australian Constitution. I personally do not think there is any basis for that criticism. Preventing the use of a trademark in most circumstances is different to taking it from somebody and using it to somebody else's advantage. But I do note that in section 15 of this bill before the parliament the government has taken the precaution of saying that the bill would not apply to the extent that it could cause acquisition of property on other than just terms in the language of section 51 of the Constitution. In other words, they are sure it does not have an implication or a resonance with respect to section 51 but, just in case, they are going to make sure the bill effectively collapses if section 51 comes against it and prevails.

I am also concerned about the extent to which the government has liaised with the small business and retail sectors about the effect of these changes on the process of selling what is still, perhaps regrettably, a legal product in this country. Having made those reservations, I repeat that the coalition supports measures to improve tobacco control, supports measures to discourage the use of tobacco and fully backs the Tobacco Plain Packaging Bill 2011.

When it comes to the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 the story is somewhat different. As I said, when the tobacco plain packaging legislation was released in draft or consultation form in April there was no trademarks amendment bill released at the same time. This bill emerged only when the legislation itself was tabled in the parliament and came as a surprise.

The problem with the bill is that it contains what is known as a 'Henry VIII clause', which is a clause that allows a minister, after a law has been passed by the parliament, to come back and unilaterally as an individual make a decision to amend the law passed by the parliament. That is quite an extraordinarily broad power. It is a power that this and every other Western parliament has hesitated long and hard to enact in law. It is a provision which appears in very few laws of this country either at the state, territory or Commonwealth levels. That is because it is generally an anti-democratic provision that allows laws to be made without the proper process of parliamentary scrutiny. That is why it should be avoided.

The government has introduced this Henry VIII clause on the basis that it believes there may be problems with the regime with respect to the use of trademarks, particularly with respect to international agreements to do with trademarks, and wants to protect its plain packaging regime by ensuring it can swiftly reorganise the framework of the Australian trademark law to prevent this occurring. The fact that the government needs to take this precaution may be, itself, an indication of the haste with which this has been done and the lack of full consultation with affected parties. The point to make here is that the generally accepted premise for the use of Henry VIII clauses is that they should be used only when there simply is not a viable alternative if something drastic, urgent and quite unsatisfactory is about to happen to a section of the community and if such a clause did not exist in legislation to allow significant harm to be avoided that is facing that section of the community. That is not the case here.

If the government discovers that some element of its plain packaging regime falls down because of an international agreement or some other provision of the trademarks regime, it has the option of coming back to this parliament and amending either the plain packaging laws or the trademarks laws to deal with this issue. It has that option. It is a little hard to argue that there is a burning urgency to do this and that it has to be done immediately. We have had the packaging of tobacco products going on for well in excess of 100 years. Another few weeks between parliamentary sittings will be neither here nor there, so the government's case for needing this Henry VIII clause is very hard to see and it is tempting to conclude, as I think others have in this debate, that what the government is doing here is creating a bit of a wedge—that if the government can create the impression that the coalition is not fully behind this legislation then it somehow gains some small advantage over the coalition because it refuses to support some element of its anti-tobacco package.

That is a pretty unprincipled approach to this issue. It appears that this is a government—