Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

I was going to continue my remarks about counterfeit and illicit tobacco, the various inquiries and the reasons we will be opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill, but I will leave that to other speakers because I need to correct the record and place on the record the conduct of Minister Roxon, who has behaved like a spoilt and petulant child over the Senate's consideration of these bills. On 12 October she contacted me directly. She rang me to discuss this legislation and whether we could look at shortening the debating times; otherwise we could not get back to this legislation for another month. I agreed with the minister. I was happy to consult with my colleagues and to speak to the relevant shadow minister. Indeed, I have my notes here. I also have notes of my discussions with my colleagues and the various attempts that I made to discuss shortening those times with them. Before I could get back to the minister she issued this press release blaring 'Senate stalls world's first tobacco legislation'. It blames the coalition for tactics ensuring that the legislation would not pass that week. Her press release says:

For the second sitting week in succession, the Senate has failed to vote on the Government’s world first plain packaging tobacco legislation …

She goes on to say that the opposition have 'ensured that the legislation will not pass this week' and that she again 'calls into question our commitment to this landmark public health reform'. This was after I had declared in this chamber that we would be supporting the legislation. Then she said:

The Opposition has twice chosen to stall the Bill by choosing to debate procedural, administrative issues, playing into the hands of the tobacco companies … It is disappointing that Senate tactical shenanigans have today stood in the way of an important piece of public health legislation becoming law.

Senate shenanigans! That is what she calls the orderly processes of the Senate brought on by the Manager of Government Business in the Senate. It is the government, in concert with its alliance partners, that dictates what happens in this chamber. I would have thought that Minister Roxon would have worked that out. She has been here long enough. So do not come in here and blame the opposition for procedural matters that your manager dictates in this place. The hypocrisy of this minister is absolutely breathtaking. Here she is, accusing us again. On that very day, it was Minister Ludwig who called for a debate on changing the hours and varying the business for the morning of 12 October.

In the end, we should not be accused of playing games. We have seen that this week in relation to the carbon tax, and of course the minister herself was elected on a lie. Instead of giving us four days of debate on the carbon tax, the government and the Greens guillotined the debate. Today we learnt that this was done because the Prime Minister turned up at the Carbon Expo this morning. There she was on Sky News, lauding the fact that they have passed this toxic tax.

But let me go back to Minister Roxon. The minister issued her press release even before I had made any attempt to contact her office. I was so incensed by this that I wrote to her. I need to put this letter on the record. I wrote:

Dear Minister,

This morning you called me about passage of this legislation. I note you said you spoke to Peter Dutton yesterday. I undertook to make inquiries in relation to speakers and a possible shortening of debating times. Given the list of speakers from the coalition side, I have made efforts to speak to all of them since your call. I spoke to the last of those on the list at the end of question time. I was about to speak to Mr Dutton about the matter when I became aware of your press release shortly after 3 pm. I also understand that the shadow minister, Peter Dutton, made bona fide inquiries of the opposition leader in the Senate last night regarding passage of this legislation after your office indicated it feared there might not be time to deal with the legislation, given the volume of government legislation yet to be dealt with by the Senate. In light of your media release, I would assume my efforts have been in vain. Indeed, I question the bona fides of your call to me this morning.

She is blaming the coalition when it was the government of which she is a member that had deemed it had other priorities. Of course, that was not good enough for Minister Roxon. On 2 November, she issued another press release implying that the coalition was to be blamed for the delays. She said:

The plain packaging legislation passed the House of Representatives in August 2011 but has yet to pass the Senate. Therefore the Government has revised the implementation timeframes to give industry enough time to make the changes required.

Of course, the legislation passed the House of Representatives and we supported it in the House of Representatives. I would ask Senator Ludwig: could you please explain to Minister Roxon—give her a book about the standing orders in the Senate—that it is up to the manager of government business in this place to order the priorities. It is not the role of the opposition to order and dictate what happens in this place. So I would beg Senator Ludwig, for goodness sake, tell this woman that it is not our fault.

Once and for all, can I place on the record that we support this legislation. We will be supporting the amendments to the Tobacco Plain Packaging Bill moved by the government. We will be supporting the Tobacco Plain Packaging Bill as amended. But we will be opposing the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Indeed, the trade marks amendment legislation has been canvassed very closely by various inquiries into this matter. Certainly, the House of Representatives inquiry was given a wide-ranging brief to avoid multiple committees having to review this bill.

The coalition supports the government's objectives to reduce harm from smoking but that should not be an excuse for overriding principles of good legislative practice, as noted by coalition senators in the report of the Legal and Constitutional Affairs Legislation Committee into the Trade Marks Amendment (Tobacco Plain Packaging) Bill. The first that anyone saw of the trade marks amendment legislation was when the minister introduced it into the other place on 6 July. It was not flagged or issued as part of the government's exposure draft or consultation paper, which was released in April 2011. The trade marks amendment bill was referred to the Senate committee.

The committee considered the specific provisions within this bill and any issues that they create and, ultimately, their constitutionality. This bill contains what is known as a Henry VIII clause, and that clause is contained in clause 231A of the amendment. This clause allows for regulations made by the minister under an act of parliament to override the act itself. In this situation, regulations made by the minister under the Trade Marks Act could override the Trade Marks Act itself. This is exceptionally uncommon. This goes against the basic legal principle that an act trumps regulations. As I said, these clauses are exceptionally rare and only used when there is no other alternative.

In the case of the trade marks amendment legislation, the minister did have an alternative. The minister could have drafted her original legislation properly. The coalition does not believe that this bill is necessary for the government to continue to implement their plain packaging agenda. If the minister had taken time to draft the bill properly, the trade marks amendment would not be needed and, therefore, we will be opposing the trade marks bill.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise today to speak in favour of the Tobacco Plain Packaging Bill 2011. In this building, we have many disagreements. We saw only very, very recently, in fact earlier today, an hour of bile, of nasty invective, from people on that side of the chamber. But I am sure that there is one thing which we can all agree on, and that is the importance of improving the health of Australian citizens. The Greens believe that this bill will improve people's health. It will mean that fewer people smoke. For that reason, we are very, very pleased to support the government on this important reform, and we stand behind it.

I am also very pleased to have the opportunity to speak to this bill because I know what it will mean for the lives of ordinary Australians. Before entering politics, I spent my professional life as a GP and later as a public health specialist. As a former clinician, I understand very well the impact that this bill will have on the lives of ordinary people. I have been with patients as they struggle to come to terms with being given a fatal diagnosis of lung cancer. I have seen the look in their eyes as it dawns on them that they have days or months left on this planet. I have been with them as they lose weight, as they struggle for breath and as they lie in excruciating pain. It is a death you would not wish on your worst enemy. Sadly, it is an experience that is all too common. Indeed, I suspect there are many people here in this chamber who have lost friends and family to tobacco related illnesses. With every life lost there are many other lives that are affected—parents leave behind young kids, adults leave behind grieving partners and families are shattered. If we can spare them this misery then nothing should stand in our way.

I am also aware of the impact that the damage from tobacco has at a population level, and the statistics on this are alarming. Almost a third of adult males still smoke worldwide, and we know that smoking will kill half of them. Around the world, 150 people will die from smoking while I deliver this speech. More than half a million non-smokers will die this year just from the exposure to other people's smoke. Smoking globally is on the rise and every week enough young people around the world start smoking to fill the city of Canberra twice over. In our own part of the world, a quarter of the young people in the western Pacific region will die from tobacco use.

Despite some progress here at home, the situation is still very, very serious. One in six Australians still smoke, and each year around 15,000 Australians die from tobacco related illnesses. Improving the health of the Australian community is reason enough to act but reducing the consumption of tobacco, which this bill will do, makes sense also for our bottom line. The economic costs of tobacco addiction are estimated at over $31 billion each year, which is more than half of the total health budget and 50 per cent more than the entire defence budget. It is a staggering sum of money. If we could divert just a fraction of those costs to the economy we could inject billions more in funding into schools and hospitals—and we would still have money to spare. As it is, we currently pay for 750,000 hospital bed days each year and $600 million is spent by our hospitals directly on treatment of these diseases. It is one bill we should not have to pay. Tobacco is the leading cause of preventable death and illness. The costs are huge and an enormous burden on our nation's health system, and no government should sit on its hands on this issue.

Thankfully, the debate around tobacco has shifted considerably since the 1940s, when three out of every four adults smoked. During the war, charities sent cigarettes to the front line and people actually apologised for not smoking. My partner, Lucy, told me a story about her grandmother, who would blow smoke up all the kids' sleeves and they would laugh at it. Since the US Surgeon General's landmark report in 1964, however, the global debate around smoking has changed, and it has changed for the better. We have seen changes around the world, including government funded anti-smoking campaigns. We have seen price used as a mechanism, with higher taxes on cigarettes to provide an incentive to help people quit. In many countries we have seen smoking phased out of work places. We have seen it phased out of cinemas, planes and restaurants and, most recently, we have seen the introduction, particularly here in Australia, of graphic warning labels. And now we are looking at outdoor smoking bans in many places.

While we do have many disagreements in this place, it is important to put on the record that the Greens give credit to the current government for taking significant and courageous action to combat this problem. The national partnership agreement on preventative health at COAG, the Preventative Health Taskforce and the establishment of the Australian National Preventive Health Agency have all been very positive initiatives. Not surprisingly, each of them has tobacco control at the top of their agenda. The target of reducing tobacco addiction to 10 per cent by 2018 is to be supported.

Unfortunately, there is a profitable transnational industry that stands in the way of this reform. The few multinational tobacco conglomerates that control this deadly trade sell more than 10 million cigarettes a minute around the world. While sales might be declining here, they are booming in many low-income countries. Tobacco companies are now aggressively targeting emerging markets around the world in order to compensate for their declining sales in countries such as Australia. Unfortunately, while the people who use its products suffer, the industry itself is in very good shape. Its deep pockets mean that the industry has been able to spend millions fighting advances in tobacco control over recent decades. They might not be able to hide from the gruesome body count that their industry extracts, but they delay, obfuscate and lie.

We know from past reforms that any effort to control tobacco will be attacked from all conceivable directions. The industry has a track record of burying evidence and shredding documents that highlight the dangers of smoking. We see public relations campaigns designed to outrage the smoking public. We get so-called experts produced on demand. They manufacture controversy; they muddy the evidence. It does not matter how clear the facts are, they will stop at nothing to prevent tobacco reform. We see front groups springing up in order to support their agenda. For example, the Alliance of Australian Retailers has been telling the Australian public that this is a bill that will hurt small retailers. This is despite the fact that clear evidence published in the British Medical Journal shows very elegantly that plain packaging:

… will, if anything, modestly decrease transaction times and selection errors.

We are now seeing Philip Morris exploit a free trade agreement between Hong Kong and Australia in its new front on fighting this important reform.

The industry does not stop there. It has another weapon in its arsenal, and that is its donations to political parties. Unfortunately, the tobacco industry still does have some clout in this country. The Australian Greens do not support donations from big tobacco. Albeit belatedly, in 2004 the Australian Labor Party stopped accepting such donations. However, the Liberal and National parties continue to accept hundreds of thousands of dollars in industry donations each year. I heard Senator Fierravanti-Wells recently criticise the Minister for Health and Ageing for her past dealings with big tobacco, but that criticism rings hollow while the coalition continue to benefit from the largesse of this obnoxious and despicable industry.

There is an area where the current government does merit some criticism. That is in the area of the Future Fund. The Future Fund has $150 million of Australian taxpayer funds invested in big tobacco—$46 million in British American Tobacco, $36 million in New York based Philip Morris and $26 million in Lorillard as of the end of last year. All of this is at a time when we are trying to break the hold of big tobacco. It is remarkable that the federal government has not stepped in to ensure that its own important reforms on tobacco control are matched by its policy on the Future Fund. Moving to the details of the legislation, this bill is the latest strike in the fight against tobacco related illness. We in Australia are at the forefront of reform when it comes to tobacco control in this area. We have strict regulation which prevents the advertising of tobacco products to new customers, but the one frontier that has remained open to the tobacco industry is the packets themselves. They are little billboards of nastiness, advertising their wares to passers-by—from pockets, from kitchen tables, on dashboards of cars—all round the country. Smokers do see the branding on the packets potentially dozens of times a day. This bill will remove those opportunities for tobacco companies to compete on the grounds of brand awareness and image.

When the Tobacco Plain Packaging Bill 2011 comes into law it will remove the ability of tobacco manufacturers to display logos, images and promotional text on their packs and it will replace all that with a plain brown packet. Current health warnings will be enlarged and accentuated. All that will remain to the would-be tobacco marketer will be the brand name and the variant, placed on the packet in a standard position and in standard font. Under the act it will be an offence to sell a noncompliant product, with potential penalties in excess of $1 million for a wilful breach of the act by a body corporate. Under the act the packets will be tightly controlled. Packs will have to be made of cardboard, be rectangular, contain no embossing and be a drab dark brown in colour, and no trademarks will be allowed. The location and orientation of the brand and variant name will be strictly prescribed and the graphic warning will be enlarged to 70 per cent of the front of the packet.

In short, this bill aims to ensure that the packet of cigarettes is as ugly as the product itself. And it is not just action for the sake of acting; there is very good evidence that this bill will save lives. While it is true that Australia will be leading the world with this initiative, studies from around the world indicate that this reform will work. There are dozens of scientific papers that support this proposal. They indicate that plain packaging will work because it reduces the attractiveness of the product, especially to young people. It also erodes brand loyalty and makes it more difficult for tobacco companies to mislead consumers by pretending that one type of cigarette is less deadly than another. In addition, studies have found that plain packaging significantly improves the recall of the health warnings on packets. Just that one little extra reminder that smoking could kill you will be enough to help many Australians over the line to a tobacco-free life.

I am glad to say that support from the public health community has been overwhelming, as it should be. The National Preventative Health Taskforce was unequivocal in its endorsement of plain packaging. The World Health Organisation Framework Convention on Tobacco Control also recommends this reform as an aspect on tobacco advertising bans. As the first signatory to the framework, it is appropriate that we are the first parliament in the world to tackle this issue. We are at the forefront of change here. It is a change that is necessary and long overdue. Again, the government should be congratulated for its bravery on this issue.

We have one more reason to know that this reform will work, and that is the hysterical reaction of the industry itself. We know that they too are aware of the evidence, even as they seek to dismiss it. If they genuinely believed that this reform would not cost them customers, they would be more relaxed about it. Instead, they are fighting this war on all fronts, including with the threat of action in the High Court. I am not a lawyer. Many of the objections are of the legal and constitutional nature and I will not pretend to be able to give thorough legal advice. But I will say that a number of disinterested legal scholars have been very clear in their view that the claims made by the tobacco industry are not valid.

The industry also claims that plain packaging will create an explosion in the illicit and counterfeit tobacco smuggling market. According to the industry, more people are going to smoke lower quality products, we are going to lose excise and customs revenue and it is going to be a huge threat to the Australian community. Illicit tobacco is something we should take seriously. Users of these products do undermine the controls that we have in place. But, as with many of the warnings of the tobacco industry, we should have a degree of scepticism about these claims. We know that there are ways of dealing with these claims, and in any case they have been debunked by experts in many different areas.

Another threat by the industry is deep discounting of cigarettes, because once plain packaging has removed their ability to compete on the basis of trademarks they will therefore compete on the basis of price. But, under questioning at Senate committee hearings, the industry have already admitted that this could easily be dealt with by administering a minimum price on tobacco products. I think it is a hollow threat but, in any case, we would welcome that fight.

This bill is not the end of the road in tobacco control. There is much more to be done. We can do more in raising awareness. We can do more in regulating the contents of cigarettes. As I said earlier, we can do more in terms of our investment in the tobacco industry through the Future Fund. The Greens are also calling for an end to duty-free cigarettes at airports.

The reality is that tomorrow, and the next day, and the day after that, a young person will be offered a cigarette for the first time. Whether they refuse it or they reach for that first cigarette might determine the course of their life. It could mean they do not live to see their child graduate from university. It could be the difference between enjoying a well-deserved retirement with their family or spending the last days of their life gasping for breath in a hospital bed at the age of 50. There are many factors that influence that decision: what a child sees at home; what their friends will think; how their body responds to the first puff of their first cigarette. We know that legislation might not be able to change some of those factors.

But one important factor remains, and that is how a young person perceives that product. Is it cool? Is it dangerous? The fact that branding legitimises cigarette smoking means that a lot of people earn a great deal of money maximising that impact. There is an entire branch of psychology devoted to studying it, and marketers do their best to exploit it. So, in that split second, the difference between a recognisable blue logo and a plain drab brown pack of cigarettes adorned with a photo of a diseased organ could be crucial in a person's decision about whether or not to smoke. That, on its own, is reason enough to support this bill. Once again, I am very pleased to support this bill and I commend it to the Senate.

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I have heard the claims that there is 'no argument' in support of the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. In fact, there are over 15,000 good reasons. The Cancer Council of Australia and the Heart Foundation have advised that tobacco kills over 15,000 Australians each year. It is widely recognised that smoking is the single largest preventable cause of illness and premature death in Australia.

Experts advise and common sense suggests that plain packaging of cigarettes will reduce the attractiveness of cigarettes and smoking, particularly for teenagers. Simply put, plain cigarette packets will promote better health. These bills are an unambiguous public health measure. The explanatory memorandum to the Tobacco Plain Packaging Bill 2011 makes very clear the intention of the bill is to reduce the appeal of cigarettes to young people and improve the effectiveness of the health warnings on cigarette packets.

Cigarettes are poisonous. Smoking will damage your health. Smoking is likely to kill you. Cigarette smoke contains over 4,000 chemicals, including tar, nicotine, carbon monoxide, ammonia and arsenic. To put it bluntly, that is a cocktail of chemicals you would find in car exhaust fumes, floor cleaner and rat poison. There is no safe level of smoking. Sixty-nine of the 4,000 chemicals in cigarette smoke cause cancer.

Tobacco smoke causes cancer in the lungs, mouth, throat, stomach, pancreas, kidneys, bladder, cervix and bone marrow. Smoking causes decreased blood flow and can lead to amputation of the legs. Smoking can reduce fertility in both men and women. Every breath of cigarette smoke that is inhaled contains tar. It coats the lungs like soot in a chimney. Smoking leaves fatty deposits in the blood vessels, preventing oxygen from travelling to the heart and brain, which can cause heart disease and strokes—which of course in turn, as we know, can be fatal. There are also a number of eye diseases caused by smoking. These are just some of the appalling health effects suffered by individuals because of smoking.

But we have to recognise that there is a massive social cost as well. It has been estimated by the Cancer Council that the total social cost of smoking is $31 billion each and every year. That includes healthcare costs, subsidies for drugs and, of course, absence from work. These costs are borne by households, by businesses and by government.

I think we ought to be absolutely clear why people smoke. Nicotine is one of the most addictive substances known. Addiction to nicotine occurs quickly—perhaps after just literally a few cigarettes. Research reports published by the Cancer Council show that most smokers become addicted to nicotine as teenagers and that very few people start smoking after their teenage years. Research also shows that the younger a smoker starts the heavier that smoker's habit will be. And the heavier a person smokes the risks of smoking related illnesses increase and, of course, the risk of death increases. Some might say that freedom of choice should prevail here and an individual's right to ingest poison should not be questioned. Well, almost all smokers become addicted when they are young. They are denied the opportunity to have a choice about smoking as an adult. Of course, we hear the criticism that passage of this legislation will do little to lower smoking rates. I think that those critics are just plain wrong. The key objective of this legislation is to stop kids being attracted to cigarettes in the first place. We do not know how many existing smokers will stop smoking as a result of this legislation but I say that if this legislation stops one young Australian from picking up a shiny coloured packet, and that prevents them becoming addicted to cigarettes, then in my view it will have been worth while.

If this legislation just stops one Australian business from losing an employee as a result of smoking related illness then the legislation will have been worth while. If this legislation means that one less Australian family has to come to terms with the grief and the pain caused by a smoking-related death then it will have been worth while. I am confident, that this legislation will save many lives but, as I said, if it saves only one then I think it is a very worthwhile exercise.

The Tobacco Plain Packaging Bill 2011 will mean that cigarettes are less attractive, particularly to young people. I think it is a very important public health measure. I strongly support it and I hope it receives very strong endorsement in the Senate and the Australian parliament.

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

It is a pleasure to be able to rise today to speak about this legislation and to indicate, as Senator Fierravanti-Wells has done before me, that the Tobacco Plain Packaging Bill 2011 has the strong support of the coalition. Having said that, I have to express some disappointment at the way in which the legislation has been handled, and in particular the way in which the legislation has been linked to a second, quite late piece of legislation in this package—the Trade Marks Amendment (Tobacco Plain Packaging) Bill 201—and the way that this has been played out so as to permit the minister to attempt to characterise the coalition as being opposed to the measure to introduce plain packaging.

It is clear from the record of the coalition over many years that we fully accept the need for public policy to be strongly couched to defeat the harm done by tobacco in this community. Our record demonstrates very amply that that is the case.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

So you'll be saying 'no' to those donations!

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

When you deal with your addiction to donations, Senator Feeney, we will deal with ours.

The coalition has a proven track record with regard to tobacco control and reducing the rate of smoking in Australia. In fact, it was Sir Robert Menzies who first introduced a voluntary tobacco advertising code for television back in 1966. In turn, it was the Fraser Liberal government in 1976 that first implemented a ban on the advertising of tobacco products on TV and radio. That was a mandatory ban. Dr Michael Wooldridge, the health minister in the Howard government in June 1997, announced what was at the time the biggest ever national advertising campaign against smoking. It had a federal government spend of $7 million over two years to limit—

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

An information campaign?

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

It was an information campaign, that is right, to reduce people's exposure to tobacco and to give people information about how to quit. They were very worthwhile efforts. They obviously did not reach some in this chamber but it was a very important measure to make Australians less likely to stick with the cigarettes.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Viciously personal!

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

Indeed! That's me! The Howard government reformed cigarette taxation from a weight based taxation regime to a per-stick excise in 1999. It was the Howard government, with Tony Abbott as Minister for Health and Ageing, that introduced the graphic health warnings on tobacco products in 2006. Those are not the actions one might expect of a government and a party that somehow thinks that the actions of the tobacco industry should be protected in the Australian community.

In 2009, from opposition, we proposed an increase in the tobacco exercise. That was obviously a good idea, because it was not very long afterwards that the government—I think it was the Rudd government—picked up that very idea and ran with it!

Those measures, over a period of 30 or 40 years, paid dividends to the Australian community. In fact, the coalition, whilst in government, presided over the biggest decline in smoking rates. 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. So, in under 10 years there was a reduction from 21.8 per cent to 16.6 per cent. That is a pretty impressive reduction. This is amongst the lowest smoking rates 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 amongst the biggest in the OECD. The fall in smoking rates amongst women, in fact, was the biggest in the OECD. So to suggest that we are soft on tobacco control is just plain nonsense.

I can also say, on a personal level, that in 1990—doesn't that date me?—as ACT Minister for Health, Education and the Arts, I introduced legislation into the ACT parliament to ban all environmental advertising of tobacco in the ACT except at point of sale, and to prevent tobacco companies from providing sponsorships for cultural or sporting events anywhere in the territory. Having said all of that, I think it also needs to be put on the record that, having reduced the smoking rate in Australia to 16.6 per cent, eliminating that last 16.6 per cent will be very difficult indeed.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Eliminating! Are you going to kill us?

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to 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—

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

What do you expect?

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

Well, indeed, what would I expect? I suppose Senator Fierravanti-Wells is quite right. That a government as desperate as this government would stoop to using the sacred ground of tobacco control to attempt to score a political point we should not be surprised about, but it is still worth putting on the record that this coalition, particularly this Liberal Party, have always opposed measures which diminish the democratic process and which make it harder for the parliament to scrutinise the laws being made that govern Australians. We have therefore always viewed Henry VIII clauses with great trepidation and concern, and our consistent position on such provisions is not going to change merely because the government has tied its use of a Henry VIII clause into a patent public good in the form of the plain packaging regime.

So let us hope that in a somewhat less non-partisan fashion the government is able to proceed with measures for tobacco control. Let us build some bipartisanship around these things which once existed and which essentially still do exist, I have to say, with respect to this legislation with the exception of the second bill. It is extremely important that we today capitalise on the advantages obtained by this new plain packaging regime. It would be good to monitor its effect. It would be good to confirm that it does make a difference even though, as I have said, I think that some have exaggerated the extent of the difference it will make, and it would be good to use this as a further basis for good, empirical evidence of what tobacco control at the appropriate level and on the appropriate scale can do to wind back rates of smoking in this country and the rest of the world. If this provides a model or template for other countries to follow, Australia will have done something very significant and very worth while. To that extent, I commend the Tobacco Plain Packaging Bill to the House but cannot take the same approach with respect to the trademarks amendment bill.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased today to make a contribution to the debate on the bills that are currently before us, the Tobacco Plain Packaging Bill 2011 and the Trademarks Amendment (Tobacco Plain Packaging) Bill 2011. About three million Australians smoke every day. Unlike other legal products, we know that tobacco is lethal. Tobacco cannot be used safely in moderation. It is also incredibly addictive. The fact that smoking kills over 15,000 people in Australia each and every year is a testament to that.

Looking at the problem internationally, recent data released by the World Health Organisation estimates that around six million people worldwide die from tobacco related illnesses each year. Without action, that figure is expected to increase to more than eight million by 2030. This is an alarming number of smoking related deaths. That figure also represents a tragic loss of life which unfortunately rings home to all of us. Some of us in this place, regrettably, have lost someone we know to tobacco related illness. Some of us may be caring for family members and friends who are suffering from smoking related illnesses or have supported the families of someone who has died due to death or disease caused by smoking.

Yet this tragic loss of life is preventable. We know that smoking is the leading cause of preventable death in Australia. What is more, smoking costs the economy over $31.5 billion per year. Notwithstanding all that we know about the dangers of smoking, our young children are still taking up the habit at an alarming rate. As I said in the beginning of my speech, three million of us still smoke every day. To ensure the ongoing health and wellbeing of Australians and to prevent a burden on our health system now and into the future, it is imperative that we take action to tackle smoking.

A key component in our strategy involves taking steps to stop tobacco companies aggressively marketing cigarettes and tobacco products. That is exactly why we are debating this legislation today. The bill makes it an offence to sell, supply, purchase, package or manufacture tobacco products for retail sales other than products and packaging that complies with plain packaging requirements. These offences apply to manufacturers, packagers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the plain packaging requirements.

The effect of the proposed requirement will be that tobacco companies' branding, logos, symbols and other images that may currently be used to advertise tobacco products will not be able to appear on a tobacco product or its packaging. The only feature permitted to distinguish one brand from another will be the brand and product name in a standard colour, standard position and standard font size and style. The bill enables the development of regulations to specify the plain packaging requirements and conditions for the appearance of tobacco products.

The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 is also being debated here today. This has been introduced so, if necessary, the government can quickly remedy any interaction between the Tobacco Plain Packaging Bill 2011 and the Trade Marks Act 1995 that cannot be dealt with under Tobacco Plain Packaging Bill 2011. This bill amends the Trade Marks Act 1995 to allow regulations to be made in relation to the operation of the Tobacco Plain Packaging Bill 2011, including a power to deem conditions to be met and to make regulations that are inconsistent with the Trade Marks Act 1995.

Research suggests that the current packaging of tobacco products glamorises smoking. Therefore, the introduction of the requirements for tobacco to be packaged in a standardised colour, typeface and form will work to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people, increase the visibility and arguably the effectiveness of mandated health warnings, and reduce the ability of tobacco packaging to obscure or mislead consumers about the harms of smoking. This plain packaging strategy and these expected outcomes are underwritten by significant and compelling evidence. The evidence is continuing to grow, refining research that has accumulated over 20 years across five countries and that has been written up in over 24 peer reviewed journal articles.

The National Preventative Health Taskforce, established by the government in 2008, was tasked to consider tobacco control as a priority. The National Preventative Health Taskforce considered the growing body of evidence on plain packaging and, after examination of the evidence, concluded:

... there is no justification for allowing any form of promotion for this uniquely dangerous and addictive product which it is illegal to sell the children.

This includes packaging. The fierce and intense opposition of the tobacco industry to the plain packaging is also evidence that the industry believes that such measures will reduce sales. It follows that our antismoking initiatives and policies must combat the marketing campaigns of tobacco companies if they are in any way to be ineffective.

By adopting this legislation, we will also give effect to our commitment under the World Health Organisation Framework Convention on Tobacco Control adopted by the World Health Assembly in 2003. That convention came into force in February 2005 and is heralded as one of the most rapidly and widely embraced treaties in the history of the United Nations. In 2009, the conference of the parties to the framework convention mooted plain packaging as a part of comprehensive bans on tobacco advertising. I am now proud that out of the 170 countries that have already ratified the convention, Australia will be the first signatory and the first country in the world to commit to implementing the 2009 recommendations on plain packaging.

This bill is our opportunity to lead the way forward in reducing the harm caused by smoking and to bolster Australia's reputation for delivering key preventative health initiatives. The introduction of plain packaging of tobacco products complements a raft of legislative reforms that will help this government alleviate the burden on our health system and prevent tens of thousands of Australians dying each year. We are introducing measures to increase the tobacco excise by 25 per cent above normal CPI adjustments. Additional support has been provided to assist smokers attempting to kick the habit. The government have also provided additional funding for Quitline and in February this year also provided subsidies for nicotine replacement therapies on the Pharmaceutical Benefits Scheme. The latest figures show that almost 100,000 scripts have been issued to people trying to quit, which is an encouraging figure.

The government have also invested a record $87 million in a targeted social marketing campaign to curb smoking among our high-risk and disadvantaged groups. We have also introduced legislation to bring the restrictions on Australian internet advertising of tobacco products into line with those for other retail points of sale. Once the Tobacco Advertising Prohibition Amendment Bill 2010 comes into effect, the marketing of tobacco products will be not only limited in the physical shopfronts or points of sale but also controlled in the online and electronic media.

What we have before us is a multifaceted and comprehensive plan to tackle smoking, one with support from over 260 health professionals and groups, including the Cancer Council of Australia, the Heart Foundation and the Public Health Association of Australia. This reform package is a crucial step towards reaching the COAG National Healthcare Agreement of reducing our national smoking rate to 10 per cent of the population by 2018. The plain-packaging reforms will help the government work to halve the Aboriginal and Torres Strait Islander smoking rate as a fundamental part of the plan to close the gap in life expectancy.

These bills before us today also build on a history of action the government have taken to regulate tobacco use in Australia and to protect the health and wellbeing of our community. In Australia, we have realised early on the dangers associated with cigarettes and tobacco products. We have subsequently taken action to reduce the smoking rate over the past few decades.

The national ban on tobacco advertising in Australia first came into effect in 1973. At that same time, Australia also introduced mandatory health warnings on cigarette packs. In 1989, the government introduced a national ban on tobacco advertising in newspapers and magazines. In 1992, the Commonwealth tightened its approach with the introduction of the Tobacco Advertising Prohibition Act 1992, which we are amending today as part of our overall strategy to continue to promote the health and wellbeing of Australians.

The Commonwealth, state and territory governments and even local governments have consistently worked together to prohibit tobacco advertising, to remove sponsorship, restrict the point-of-sale displays as well as outlaw smoking in restaurants, outside buildings and in public places. It has been thanks to the existing efforts of all levels of government that we have seen a reduction in the rates of Australians aged 14 years and over who smoke each day. In 1988, that figure was 30.5 per cent. Today it is 15.1 per cent and one of the lowest in the world.

Notwithstanding that progress, smoking rates amongst the unemployed, people with mental illness and pregnant teenagers remain unacceptably high. We still have much more to do to fulfil our preventive health agenda, and tobacco control really is a key part of that strategy. Pursuing this vital piece of reform will improve the health and wellbeing of Australians.

The Minister for Health and Ageing has said a number of times that plain-packaging legislation is the most direct way to get the best health return for our nation. It is simple and it is cost-effective. It does not require a new workforce, or a huge investment of government resources, or any new technology. It is the right way forward. In an environment where there is increasing prohibition of tobacco advertising and sponsorship, the cigarette pack remains the last key marketing tool the tobacco industry can rely on to attract and retain customers. It will be through enacting this legislation to introduce plain packaging that Australia will continue to forge a reputation as a world leader on tackling smoking.

As I have outlined before, these bills complete our package of reforms to the way in which tobacco is marketed in Australia. It will be through these measures that we will continue to see healthier Australians, many being supported to kick the habit and others deterred from starting in the first place. Even one child deterred from taking up smoking is an aim that should be applauded.

We cannot afford to be pushed around by big tobacco any longer. The social and economic costs of inaction are just too high. I congratulate Minister Roxon on her work and her determination to send a clear message: smoking is not glamorous; it is lethal, and tobacco cannot be used safely even in moderation. I urge you all to support these bills and invest in the future wellbeing of Australians. I commend the bills to the Senate.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I should make two important disclosures before I get going. Firstly, I am currently a smoker. I have been a recovering smoker on a number of occasions but I am currently a smoker. I do not think that is seriously affecting my views on this legislation.

I will add, in another disclosure, that quite recently I went to a dressmaker near my office in Brisbane and asked her to copy a top by an Australian designer. But I made the point to her that the top had been designed and made about eight years ago and the company and the designer were no longer in business. I thought that would be sufficient to extinguish the intellectual property held in that design, given that there was no-one left to benefit from sales of the design. I tell this story to demonstrate that I take the topic of intellectual property and trademarks and patents very seriously and certainly would not, as I know a number of people would, buy copies of trademarked goods overseas or anywhere else.

My concerns around this legislation do not relate at all to whether it is tobacco plain packaging, alcohol, sugary drinks or whatever is the next thing on the list of the do-gooders who think they know best. They relate to the potential damage to the trademarks legislation and the potential unintended consequences of this.

I point out that we have before us legislation—the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011—which has in it a brave new idea that has never been tried before. We have before us legislation that has in it a brave new idea the effect of which no-one knows. We have before us legislation with an idea that has never been legally tried. It may well be challenged and cost the taxpayers of this country millions, if not billions, of dollars and achieve almost no positive outcome—in fact, it would achieve a negative outcome. Does this remind you of any recent legislation that we have had through this parliament? Let's look at the government's Malaysia solution. We have here a version of it, dressed up in different clothes, where the government has had a brave idea to undertake reform of the tobacco industry in a way that has not been tried before anywhere in the world. In fact, in cases where it has been considered and discussed it was decided that it was legally too concerning.

We might all say: 'So what? Someone should be brave and do this.' We already know that British American Tobacco and Philip Morris have clearly stated that they will be going to court if this legislation is passed and introduced—they will take it to court. The compensation that may end up having to be paid following that could run into the billions. Even if the government were to win the case—and certainly we have no idea whatsoever on that; we have competing views—the tobacco companies, which have billions and billions of dollars worth of assets at stake, have employed some very high-powered legal advisers, and their legal advice is that the legislation is not constitutional; it will not stand up in court. And the companies are prepared to use their quite deep pockets to find out.

If the government lose the case, millions and millions of dollars of Australian taxpayers' money will be thrown away in the same way it was with the government's Malaysia solution legislation. What does it matter whether they have the potential to lose the case? It is only taxpayers' money. Why should we be surprised that this is the way the government intend to conduct themselves?

What concerns me mostly here is the evidence given to the Standing Committee on Legal and Constitutional Affairs, of which I am a member, about what this might mean for trademarks and trademarks legislation all up. We have the possibility that this act could lead to the minister having virtually unlimited power with respect to trademarks, not just to do whatever he likes that is contrary to the Trade Marks Act—as is this piece of legislation—but to make regulations about anything at all to do with trademarks.

Part of the explanatory memorandum, which was circulated by the government, made what I regarded as the completely facetious comment that the government's legal position stands on the basis that they are not acquiring the trademarks because they will not be using the trademarks; that they will just be curtailing the use of the trademarks. The government's explanatory memorandum suggests that there will be no problem whatsoever with tobacco manufacturers using their trademarks on letters or on other correspondence, or on boxes they may use to send out their goods. If that is not meant to be facetious, I do not know what is. If it is meant to be a serious comment, it demonstrates an appalling and abysmal ignorance of the use that trademarks are put to by companies.

As Senator Carol Brown has just pointed out and as has been pointed out numerous times, the packaging of cigarettes is currently one of the few places where, since the end of advertising and other promotions, cigarette manufacturers can advertise their trademarks. If it is considered to be important in selling a particular brand of cigarette, I see it as completely unsurprising that a manufacturer would fight tooth and nail not to lose the ability to distinguish their brand from other brands.

We continue to have the point made that we have no evidence whatsoever that plain packaging will reduce smoking. We have some obscure little syllogisms developed by the Department of Health and Ageing, presumably at the request of the government suggesting, 'It will probably help. Yes, it could, absolutely, because people buy them if they're colourful and if they're not colourful any more, that will help.' There is no research anywhere. In fact, when the government went looking for research in 1995, they were left with the fact that they could only come back to look at legal and constitutional issues. One of the biggest concerns about this piece of legislation is that, despite numerous requests at estimates and in other fora, the government have refused to allow to be made public any of the legal advice they received going back to 1995.

One assumes that, if any of the legal advice—it is a bit like their modelling for the carbon tax, is it not?—was definitive in suggesting that the government's course of action was going to be legally sustainable, it would have been released. But it has not and once again we have to be very concerned about what exactly it is that the government are trying to do here.

Within industry, not just in Australia but internationally, trademarks are understood to be a very valuable property right. Huge amounts of money are spent every year on developing trademarks and on building the assets behind the trademarks, and in defending trademarks from imitation and other misuse which might affect the value of the property of the company which owns the trademark. This matter is being watched not just by tobacco companies around the world; this is being watched by every patent attorney and every organisation involved in the trademarks sector to see what happens. It could, once again, be the thin end of the wedge in what happens with trademarks.

If this legislation is passed, there is a strong likelihood that it will cause definite ructions within world trade organisations. No-one in this place has any problems with well-thought-out plans to reduce smoking, particularly among the young and other groups who have very high smoking rates such as Aboriginal and Torres Street Island Australians—no problems whatsoever. To embark on yet another sally down a legal pathway where we do not know what the consequences will be, either in terms of cost to the taxpayer or the effect it will have overall on trademarks and the industries which rely so heavily on trademarks, is just crazy stuff. Why would we be surprised about crazy stuff coming out of this government? We cannot be. I encourage the government to think again about this legislation and to be confident in where they are going with it by releasing their legal advice.

The other aspect of this legislation which reminds me a little of the Malaysian migration debacle, which this government tried on, is the fact that the government are somehow trying to blame the coalition for the fact that this legislation has not been passed. They attempted to convince some reporters that it had been stalled in the Senate by the coalition. 'Um, um, um' is my only response to that. I know that Senator Fierravanti-Wells has made several attempts to speak on this legislation. I practically had to brush the cobwebs off the speech that I have had ready since this was first put on the Senate Notice Paper in August this year. Day after day, week after week, this government continued to be unable to organise their own legislative program. It would be on the Notice Paper; it would be off the Notice Paper. This legislation is getting noticed now, under the new guillotine system that the government have introduced, only because of their incompetence and their mismanagement of the legislative program up until what they saw as the death hour. I guess Minister Roxon is not someone who is new to backflips and reorganisations and not knowing what she is doing tomorrow.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

She blames everyone else; it is never her fault.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

That is true. As Senator Fierravanti-Wells points out, Minister Roxon is the past mistress of blaming everybody else for her faults, and this is just another one of her little efforts to do so. Instead of this plain packaging legislation going into effect on 1 July 2012, it will not do so until December 2012. The government, particularly Minister Roxon, have absolutely no-one to blame except themselves for the fact that this has been delayed. They are still fiddling around with the wording in the legislation, worrying about square edges and round edges. Given the time the government have had to do this, you would think that they could have gotten it right—well, as right as they could ever get it. But they cannot even get the detail of the legislation right. They cannot get the introduction of the legislation right.

Once again, I express my very serious concern about the potential unintended consequences on every manufacturer, service industry, organisation and corporation in Australia that has trademarks and makes a profit out of those trademarks. There is nothing wrong or unacceptable about a company making a profit out of holding trademarks. It is quite typical of this government that there is some sense of attempting to suggest that it is a bit mean and nasty to want to make a profit out of a trademark.

The other issue that has simply been brushed over by the government is the issue raised by the manufacturers regarding illicit tobacco. According to manufacturers, it will be easier to put illicit tobacco into the market because the packaging will be easier to copy. I am honestly not aware of how that will play out, but the amount of illicit tobacco on the Australian market certainly is already a major concern. I note that a survey last year, I think conducted by PricewaterhouseCoopers, showed that in Queensland the electorate with the highest sales of illicit tobacco was the Treasurer's seat of Lilley. That is where most illegal tobacco in Queensland was being sold. I cannot begin to understand that because the government do not like the warning put out by tobacco manufacturers about the potential increase in illegal tobacco they have done absolutely nothing about this potential issue. If they could say they had investigated it and could genuinely tell us that there is no likelihood of an increase in illicit tobacco sales, fine, but they cannot. They just want to pretend it cannot happen because they did not think of it when they organised their brave, crazy, new-world legislation.

I would ask the Senate to really consider whether this piece of legislation is in the interests of taxpayers and whether it is in the interests of smokers. It is so flawed in so many ways. The aim of it—to reduce smoking—is something that no-one will disagree with. The way of going about it is probably symptomatic of this government, its ineptness, its ignorance of how the real world works and its folly in not caring about the costs to the Australian taxpayer of the implementation of its legislation.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It gives me pleasure to rise tonight to speak on the Tobacco Plain Packaging Bill 2011 and a related bill. I put on record and acknowledge the outstanding contribution that the Minister for Health and Ageing, Nicola Roxon, has made. We just heard some diatribe from Senator Boyce. I remind her that those opposite were in government for very long time—11½ very long years—and they did nothing.

Opposition Senators:

Opposition senators interjecting—

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I know I have hit the mark because of these interjections. This bill deals with an important issue. There is no doubt that tobacco is still the single biggest preventable cause of death and disease in Australia. The truth is that more than 15,000 Australians die prematurely each year due to the effects of tobacco. The direct cost of this is $31.5 billion. While that figure is enormous, the real cost—the part that is unacceptable—is the unnecessary premature death of so many Australians year after year.

There are still over 3.3 million Australians who smoke. That is more than 16 per cent of people over 14. Men are slightly more likely to smoke than women. While these figures have been slowly declining over past decades, there is no room for complacency. We all know that the tobacco companies have been targeting the young for decades. One classic example that illustrates how unscrupulous these companies are comes from Taiwan. Remember, these are global companies who see all parts of the world's population as targets. This is just one example. Young people could not purchase tickets to a rock concert unless they could produce two empty cigarette packages. This was not uncommon, especially in Taiwan and Hong Kong. It is standard tobacco company behaviour in many developing countries—but more about the tobacco companies later.

Men in their 20s, 30s and 40s and women in their 40s are the heaviest smokers. Unfortunately, the smoking rate amongst Indigenous Australians is twice the rate of the general population—close to 40 per cent of those over 14 smoke. Smoking is responsible for 84 per cent of lung cancers in men and 77 per cent in women. Between 20 and 30 per cent of all cancers are the result of smoking, and we know one in five pregnant women smoke.

We have known about the adverse aspects of tobacco since the 1950s. However, if we had to rely on the ethical and caring attitude of the tobacco companies we would still not know how truly harmful tobacco is. To see their dishonest and deceptive behaviour, we only have to look at the process of the adoption of the master settlement agreement. On 14 April 1994 seven executives of tobacco companies testified that they did not believe that tobacco use was addictive. Remember, this was in 1994. They were: William Campbell, President and CEO of Philip Morris USA; James W Johnston, Chairman and CEO of RJR Tobacco Co.; Joseph Taddeo, President of US Tobacco Co.; Andrew H Tisch, Chairman and CEO of Lorillard Tobacco Co.; Edward A Horrigan, Chairman and CEO of Liggett Group Inc.; Thomas E Sandefur, Chairman and CEO of Brown and Williamson Tobacco Corporation; and Donald S Johnston, President and CEO of American Tobacco Co.

I will refer to four documents that contributed to the preparation of the master settlement agreement and show that tobacco companies had had sound evidence for nearly three decades that tobacco use was addictive and caused cancer in laboratory animals and human beings. From these and many other documents, lawyers in the Medicaid suits had developed various theories to show the tobacco industry committed a fraud against the American public. This legal process occurred in the USA, but the consequences of the behaviour of tobacco companies were not limited to that country. People around the world died due to this deliberate concealment. These documents contributed to the finding that tobacco industry lawyers controlled scientific research in an attempt to hide data that was damaging to the industry. In other words, they covered up evidence that smoking is addictive and causes death and disease.

The first is a document relating to the Auerbach dog study which showed that as early as 1970 cigarette companies had medical evidence that smoking caused lung cancer in animals. Second is the Addison Yeaman memo. This document, written by Brown and Williamson's general counsel, was critically important because it indicated that tobacco industry executives knew about the dangers of smoking in the early 1960s but continued to deny them for over 30 years. Third is the youth smoking document, a 1981 document from Philip Morris. It clearly shows that Philip Morris knew that teenagers used their product, that the company had studied this rather extensively and that they were worried about the decrease in youth smoking since it would affect their future customers. Lastly, there are the notes from a 1981 meeting of the Committee of Counsel, a group of tobacco industry lawyers who met regularly to discuss legal issues of interest to the tobacco industry. According to a federal prosecutor, the group controlled industry and scientific research. The notes clearly show the group discussed scientific projects—'special projects'—which were designed to promote the idea that smoking did not cause disease.

I will return to the master tobacco settlement. The master settlement agreement is an agreement originally negotiated between the four largest tobacco companies and 46 US states and six US territories, reached in 1998. The negotiations addressed the potential liability of the tobacco industry for an alleged cover-up of tobacco related health problems. Ultimately the state governments exempted the companies from tort liability in exchange for a combination of yearly payments to the states and voluntary restrictions on advertising and marketing of tobacco products. The agreement was meant to provide state governments with compensation for smoking related medical costs and to help reduce smoking in the United States.

The MSA was originally signed in November 1998 by the four largest tobacco companies: Philip Morris USA, RJ Reynolds Tobacco Co., Brown and Williamson Tobacco Corporation and Lorillard Tobacco Co. The agreement was later joined by more than 40 other tobacco companies. Every US state and six US territories signed that agreement. Florida, Minnesota, Texas and Mississippi had already reached individual agreements with the tobacco industry. At $368.5 billion, MSA was the largest civil settlement in United States history. In 2010 the Cancer Council of Victoria estimated that excise from tobacco in Australia was $5.92 billion, whereas health costs alone were $31.5 billion.

The latest estimates of donations to the coalition parties are $140,000 from British American Tobacco and $158,000 from Philip Morris—near enough to $300,000. There has been $1.7 million in donations since 2004, when the ALP ceased accepting donations from tobacco companies. It is time all donations from tobacco companies were refused. Cigarettes kill people. Accepting donations from companies who sell products that kill people and who have knowingly lied about this issue is immoral. Besides, who needs this real and perceived conflict of interest? The Gillard government is strongly committed to taking action to reduce smoking.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

What about Minister Roxon?

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Those opposite and the senator interjecting now were part of a government that was in power for 11½ years and did nothing. Once again it is the Gillard Labor government that has made this reform. What a great week it has been for the Australian community, this week in the Senate. The government has set a target of reducing smoking rates to 10 per cent of the population by 2018. The $61 million National Tobacco Campaign is the largest in Australia's history and $27.8 million of that is for the National Tobacco Campaign—More Targeted Approach, which will target hard-to-reach, high-risk audiences and pregnant women. From 1 February, 2011 nicotine patches, Nicorette, Nicobate and Nicotinell were included on the Pharmaceutical Benefits Schedule for all eligible Australians as an aid to assist them in quitting smoking. Also, Champix, another drug to assist with quitting smoking by easing cravings and withdrawal symptoms, has been extended to a second 12-week program.

Another component of the suite of changes that Minister Roxon has introduced is the increase in tobacco excise by 25 per cent and legislation to restrict internet advertising of tobacco products within Australia. The government's proposed plain packaging for tobacco products legislation sends a clear message that the harm caused by tobacco must be dealt with. I would have thought that everyone in this chamber would be supporting this important piece of legislation.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Minister for Ageing) Share this | Link to this | Hansard source

We are! Haven't you been listening?

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Order, Senator Fierravanti-Wells.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It was a bit confusing with some of their speeches, particularly Senator Boyce's. She has probably got a vested interest because of all the donations that go to that side of the chamber. There has been a concerted program by the tobacco companies to undermine this legislation. It is why we know that this legislation will help a great deal to reduce people's addiction to tobacco products. If the industry were not so afraid that they were going to miss out on their dollars and on making a financial contribution to the Liberal campaign at the next election, they would not be attacking us in the way that they have been.

Just to get a perspective, let us look back at some of the history of plain packaging. This can only be a very potted history. In June 1986, 25 years ago, a motion put forward by Gerry Kerr at the Annual General Meeting of the Canadian Medical Association in favour of plain packaging for tobacco products was supported. In May 1989, a similar call for 'generic' packaging came from New Zealand. This was followed by calls for the same in Europe and Australia. In January 1994, British American Tobacco told the Australian government that plain packaging was contrary to 'intellectual properties and rights advocated by the General Agreement on Tariffs and Trade'.

By May 1994, this claim had been broadened to contravening the General Agreement on Tariffs and Trade, GATT; the North American Free Trade Agreement, NAFTA; and the Paris Convention for the Protection of Industrial Property. In July 1994, World Intellectual Property Organisations, WIPO, told British American Tobacco that there was no contravention of the Paris convention. Later, WIPO incorrectly reconsidered its position. By 1995, the Australian health minister rejected plain packaging on international trade and legal grounds. This dishonest ploy by the tobacco companies had been successful in Australia and Canada.

So what have we seen this year from the tobacco industry? Not much that is new: claims about trade agreements; intellectual property; the need for the Australian government to pay huge compensation to the tobacco industry; lobbying US congressmen and foreign countries like Malaysia to oppose Australia's plans; claims of an increase in illegal importation of tobacco; an expanded black market; shortages of supplies; and that tobacco prices will drop dramatically.

I will deal with the last point before I respond to the other claims. It is a bizarre statement that the tobacco industry suddenly believes that their products are of minimal value. Give me a break! Adam Smith in his An Inquiry into the Nature and Causes of the Wealth of Nations in which the famous 'invisible hand' appeared also talked about the moral and ethical behaviour necessary for a market to operate satisfactorily and to benefit the community. These obligations seem to have been completely lost on the tobacco companies. But, in fairness, there might be the odd Australian company to whom this could also be applied.

In dealing with the other issues, I will rely heavily on the help of the Victorian Cancer Council. Let us look at some of these issues. It won't work, so why do it? As the number of design elements on cigarette packs decrease, so does the level of positive perceptions people have about smoking. Research concludes plain packaging is likely to reduce the appeal of smoking to teenagers and adults, make health warning messages on packs more prominent and stop smokers incorrectly believing that some brands of cigarettes are less harmful than others.

Plain packaging was rejected in the UK and Canada. Canada and Britain, along with Australia, have signed an international World Health Organisation, WHO, treaty that recommends its members pursue plain packaging. Canada has actually announced its intention to proceed with plain paper packaging. The British government has stated that it will consult on options to reduce the promotional impact of tobacco packaging, including plain packaging, before the end of 2011. So Australia is again leading the way. Plain packaging is also being considered by the European Union and New Zealand. A plain packaging bill has been introduced in the French National Assembly. Every state in Australia has already moved to make it illegal to have cigarettes on display.

So, if you cannot see them, how will plain packaging make any difference? Both display bans and plain packaging are important elements in reducing avenues for tobacco industry promotion and the recruitment of new smokers. Once out of the store, cigarette packs act as mobile advertising for the brand. Smokers display the pack approximately 10 to 15 times a day as they light up. They often leave them out in social situations where others will see them. Plain packaging will end this form of promotion.

Plain packaging laws will result in the government paying compensation to tobacco companies for acquisition of their property and breach international trade agreements. The government will not be acquiring trademarks or any other property from tobacco companies. It will only be restricting the tobacco companies' use of their trademarks and packaging. This is not illegal. For this reason, there will be no need to compensate tobacco companies for acquisition of property. Plain packaging will not disadvantage imports or restrict international trade. International trade agreements do not create a right to use trademarks and, in any case, they allow for member countries to implement measures necessary to protect public health.

Plain packaging will make cigarettes easier to counterfeit and increase the trade in illicit tobacco products such as 'chop chop'. There is no evidence that plain packaging will lead to an increase in illicit trade in tobacco products. Tobacco industry claims about the amount of illicit tobacco purchased in Australia have been found to be exaggerated and misleading. The plain packaging legislation will allow tobacco companies to continue to use covert anti-counterfeit markings on their products. This is the tip of the iceberg and pretty soon public health organisations will be calling for the plain packaging of other consumer products.

Tobacco advertising was banned in Australia in 1976. In 35 years, no other product category has been banned from advertising in Australia. The reason tobacco has been targeted in this way is that it is unlike any other product on the market. It kills half of all long-term users and 15,000 people in Australia every year. Restrictions on the packaging of tobacco products are warranted because of the dangerous nature of tobacco. If the government was actually serious about stopping people smoking, it would ban the sale of tobacco. It will not though because of the tax it brings in. If tobacco was introduced to the retail market today, there is no question it would be banned. Unfortunately, though, the dangers of smoking only became apparent in the fifties, a time when half of all Australians smoked. Although we have made significant inroads into smoking rates since then, more than three million Australians still regularly smoke, many because they are addicted to nicotine.

Once again, I want to put on the public record congratulations to the minister, along with this government, for taking the initiative of undertaking the reform that was necessary because those opposite failed to take the appropriate action in the 11½ years that they were in government. I commend the bills to the Senate.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to provide a contribution to this debate on the Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. I have some introductory remarks I want to make about the plain packaging debate but particularly I will turn my attention to the work that the Senate Legal and Constitutional Affairs Legislation Committee has done in relation to, in particular, the Trade Marks Amendment (Tobacco Plain Packaging) Bill.

I will just begin my contribution by reminding everyone that smoking is the largest preventable cause of disease and death in Australia, killing 15,000 people a year and contributing 7.8 per cent to the total Australian burden of disease. Tobacco smoking affects people of all ages. Tobacco use increases the risk of heart attack, stroke, chronic lung disease, several cancers and diabetes. Smoking during pregnancy, as we heard from Senator Polley, increases the risk of low birth weight in babies. Passive smoking also has its risks. Exposure to second-hand smoke can lead to serious harm, causing lung cancer and cardiovascular disease. Passive smoking can also increase the risk of onset asthma in children and sudden infant death syndrome.

From a personal point of view, I have a passionate need to support this bill and see it pass through this chamber this evening. My father died in 2008 of mouth cancer as a result of a lifelong addiction to cigarette smoking. I think anyone who has nursed a family member through such a debilitating and destructive disease that leads to the end of their life will put their hands up very readily to support legislation such as this. As an asthmatic I am also very conscious of the effect that passive smoking has on one's ability to breathe freely in this country and that is another reason I am so supportive of this legislation.

Tobacco use also places a huge financial strain on the health sector as well as the broader community. As far back as 1998 and 1999 it was estimated that the costs attributable to tobacco in Australia were over $109 million. That includes medical, hospital, nursing home and pharmaceutical costs. It is now estimated to cost our economy $31.5 billion. Despite all this, and despite all of our efforts, there are still three million Australians who continue to smoke.

In my own electorate of the Northern Territory the situation is even more dire. The rate of smoking in the Northern Territory is the highest in the country. Smoking prevalence data from 2007 reports that one-quarter of non-Indigenous adults in the Northern Territory aged 14 and over smoke tobacco on a daily basis.

Debate interrupted.