24.08.11 Tobacco Plain Packaging Bill 2011
Friday, 02 September 2011
Mr HAWKE (Mitchell)
(12:59):
I rise to make a contribution in this debate on the Tobacco Plain
Packaging Bill 2011 and Trade Marks Amendment (Tobacco Plain Packaging)
Bill 2011 following on from the member for Shortland. Sometimes I think I
am cursed to follow the member for Shortland.
I do think this legislation is bad law. I do think there has been no
credible argument made by the government about how plain packaging will
reduce the rates of smoking in Australia today. For us as a parliament
to take away the intellectual property of legal
corporations and entities in Australia today, I think we ought to pause
and think very seriously about the ramifications of doing this sort of
thing by law.
Mr HAWKE (Mitchell)
(12:59):
I rise to make a contribution in this debate on the Tobacco Plain
Packaging Bill 2011 and Trade Marks Amendment (Tobacco Plain Packaging)
Bill 2011 following on from the member for Shortland. Sometimes I think I
am cursed to follow the member for Shortland.
I do think this legislation is bad law. I do think there has been no
credible argument made by the government about how plain packaging will
reduce the rates of smoking in Australia today. For us as a parliament
to take away the intellectual property of legal
corporations and entities in Australia today, I think we ought to pause
and think very seriously about the ramifications of doing this sort of
thing by law.
I refer to what has
happened in Canada. Yes, it is true that we are the first jurisdiction
looking at implementing plain packaging in the world today. Canada
considered this in detail. Indeed, in 1995 when a health
study When Packages Can't Speak:Possible Impacts of Plain and Generic Packaging of Tobacco Products
appeared, the government considered it and there was some evidence that
there would be some change. However, the Canadian government did not
proceed with
plain packaging. They believed it would violate Canada's international
trade obligations with respect to intellectual property. Despite the
fact that the government did not proceed with plain packaging following
the consultation, during the parliamentary debate
the Minister of State for Public Health, Gillian Merron, noted that the
government chose in 2009 not to proceed with plain packaging because of
lack of convincing evidence. I quote:
happened in Canada. Yes, it is true that we are the first jurisdiction
looking at implementing plain packaging in the world today. Canada
considered this in detail. Indeed, in 1995 when a health
study When Packages Can't Speak:Possible Impacts of Plain and Generic Packaging of Tobacco Products
appeared, the government considered it and there was some evidence that
there would be some change. However, the Canadian government did not
proceed with
plain packaging. They believed it would violate Canada's international
trade obligations with respect to intellectual property. Despite the
fact that the government did not proceed with plain packaging following
the consultation, during the parliamentary debate
the Minister of State for Public Health, Gillian Merron, noted that the
government chose in 2009 not to proceed with plain packaging because of
lack of convincing evidence. I quote:
No studies have been
undertaken to show that plain packaging of tobacco would cut smoking
uptake among young people or enable those who want to quit to do so.
Given the impact that plain packaging would have on
intellectual property rights, we would undoubtedly need strong and
convincing evidence of the benefits to health as well as its
workability, before this could be promoted and accepted at an
international level ...
undertaken to show that plain packaging of tobacco would cut smoking
uptake among young people or enable those who want to quit to do so.
Given the impact that plain packaging would have on
intellectual property rights, we would undoubtedly need strong and
convincing evidence of the benefits to health as well as its
workability, before this could be promoted and accepted at an
international level ...
Amen to that. She makes
great sense. This is an intellectual property issue. We have a serious
issue before us today because there is no proven evidence that
demonstrates this will have any impact on health—none
whatsoever, and certainly none that is convincing.
great sense. This is an intellectual property issue. We have a serious
issue before us today because there is no proven evidence that
demonstrates this will have any impact on health—none
whatsoever, and certainly none that is convincing.
Listening to the
arguments of the Labor Party backbench is mind-numbing in itself. They
do not speak about the impact of alcohol, which kills more people in
Australia every day. They do not speak about illegal
drugs. We all know, for example, that alcohol will increase the rate of
loss of brain cells. Every single drink has a negative health impact on
you, yet there has not been a word about it from the Labor Party.
Listening to the ALP backbench trying to explain
how their bad legislation will work is enough to make you want to go
back to your office and lose some more brain cells, because I can tell
you, Madam Deputy Speaker, this is badly thought out law.
arguments of the Labor Party backbench is mind-numbing in itself. They
do not speak about the impact of alcohol, which kills more people in
Australia every day. They do not speak about illegal
drugs. We all know, for example, that alcohol will increase the rate of
loss of brain cells. Every single drink has a negative health impact on
you, yet there has not been a word about it from the Labor Party.
Listening to the ALP backbench trying to explain
how their bad legislation will work is enough to make you want to go
back to your office and lose some more brain cells, because I can tell
you, Madam Deputy Speaker, this is badly thought out law.
From any angle you
approach this question, it is obvious that the government is engaged in a
political question and not in a serious attempt to improve health in
Australia today. They have railed here today against
the nanny state campaign that is being run against them. But that nanny
state campaign is tapping into something that I regard as extremely
important going on in Australia today.
approach this question, it is obvious that the government is engaged in a
political question and not in a serious attempt to improve health in
Australia today. They have railed here today against
the nanny state campaign that is being run against them. But that nanny
state campaign is tapping into something that I regard as extremely
important going on in Australia today.
The Minister for Health
and Ageing is the flag-bearer of this government for the nanny state. I
have a confession to make to you, Madam Deputy Speaker, and to this
House: I do not like the term 'nanny state'. I
think 'nanny' is quite a benign term for what we are really talking
about, which is the government's intentions and what is actually going
on with its series of ill-thought-out and badly planned legislative
responses to challenges that it faces. The alcopops-increased
taxation produced a spike in the sale of hip flasks in Australia by 21
per cent. The hip flask industry thought all its Christmases had come at
once because this government came up with an ill-thought-out, badly
proposed piece of legislation. How much money
do we think has actually been returned to alleviate the impact of
alcohol on health today? If we looked into that, I wonder what we would
find.
and Ageing is the flag-bearer of this government for the nanny state. I
have a confession to make to you, Madam Deputy Speaker, and to this
House: I do not like the term 'nanny state'. I
think 'nanny' is quite a benign term for what we are really talking
about, which is the government's intentions and what is actually going
on with its series of ill-thought-out and badly planned legislative
responses to challenges that it faces. The alcopops-increased
taxation produced a spike in the sale of hip flasks in Australia by 21
per cent. The hip flask industry thought all its Christmases had come at
once because this government came up with an ill-thought-out, badly
proposed piece of legislation. How much money
do we think has actually been returned to alleviate the impact of
alcohol on health today? If we looked into that, I wonder what we would
find.
There is not any
suggestion in this legislation before us today that there will be any
impact on smoking rates. The member for Greenway said we need to do
everything we can. If the government wanted to do everything
it could to reduce the rate of smoking it could ban it today; it could
outlaw this product. There is a good reason why governments will not do
that and why the minister for health, who repeatedly talks about this
product killing people, will not do that. It
is because of the billions of dollars of revenue collected from tobacco
excise. In fact, there is a net benefit to the health system from the
money collected from tobacco excise compared to the money expended in
dealing with problems created by tobacco.
suggestion in this legislation before us today that there will be any
impact on smoking rates. The member for Greenway said we need to do
everything we can. If the government wanted to do everything
it could to reduce the rate of smoking it could ban it today; it could
outlaw this product. There is a good reason why governments will not do
that and why the minister for health, who repeatedly talks about this
product killing people, will not do that. It
is because of the billions of dollars of revenue collected from tobacco
excise. In fact, there is a net benefit to the health system from the
money collected from tobacco excise compared to the money expended in
dealing with problems created by tobacco.
I do not support smoking
and I do not smoke myself, but I do support the rights of Australians to
do what they like in their free time within the law. This is a legal
product. I say to the member for Greenway:
when we were on the stage together in front of 900 workers at the
Blacktown Workers Club she should have made her remarks about tobacco
plain packaging there. There was a woman there with a sign that said, 'I
am an adult. I do not need the government to make
my choices for me.' Amen to that, because that woman with her sign and
those workers at the Blacktown Workers Club all know what is going on in
this country today, and that is the scope of government is going too
far, intruding into the lives of ordinary Australians.
This legislation is another good example of it.
and I do not smoke myself, but I do support the rights of Australians to
do what they like in their free time within the law. This is a legal
product. I say to the member for Greenway:
when we were on the stage together in front of 900 workers at the
Blacktown Workers Club she should have made her remarks about tobacco
plain packaging there. There was a woman there with a sign that said, 'I
am an adult. I do not need the government to make
my choices for me.' Amen to that, because that woman with her sign and
those workers at the Blacktown Workers Club all know what is going on in
this country today, and that is the scope of government is going too
far, intruding into the lives of ordinary Australians.
This legislation is another good example of it.
How will plain packaging
reduce the rates of smoking amongst young people? How will it do that?
Nobody on this backbench has told us. Not one person has advanced an
intellectual argument about how this will practically
work. That is because there is not one. What we are doing in Australia
today is paying committees and bureaucrats to determine if the drab and
dull colours and the sizes of different words will have an impact upon
people's choices in smoking, ignoring the fact
that all cigarette packets are already concealed behind counters; they
cannot be seen. There is no tobacco advertising in Australia today. This
is not a strong, powerful step of a government committed to actually
doing something about the rate of smoking in
Australia today. Every member of this place knows this is a political
wedge by a government desperate to change the conversation from anything
that is dragging it down, which is basically its whole legislative
agenda.
reduce the rates of smoking amongst young people? How will it do that?
Nobody on this backbench has told us. Not one person has advanced an
intellectual argument about how this will practically
work. That is because there is not one. What we are doing in Australia
today is paying committees and bureaucrats to determine if the drab and
dull colours and the sizes of different words will have an impact upon
people's choices in smoking, ignoring the fact
that all cigarette packets are already concealed behind counters; they
cannot be seen. There is no tobacco advertising in Australia today. This
is not a strong, powerful step of a government committed to actually
doing something about the rate of smoking in
Australia today. Every member of this place knows this is a political
wedge by a government desperate to change the conversation from anything
that is dragging it down, which is basically its whole legislative
agenda.
I have grave concerns
about the provisions of this bill. When you look through it you see what
it is attempting to do with the different divisions. Chapter 4 refers
to powers to investigate contraventions of this
act and chapter 5 refers to enforcing compliance with this act. I want
to stand up for those small and independent retailers all around the
country who will suffer the detrimental impact of this bill. Once again,
we are going to ask the very small business
sector to handle the consequences of a piece of legislation that is ill
thought out and will not achieve its objectives. Once again, we stand in
this place with a bad attempt to do very little on a question that will
affect the ability of small business to
survive. Not only do a lot of small petrol stations rely on trade from
people coming in to buy cigarettes, not only do small corner shops rely
on them, but a lot of small businesses in this country get significant
proportions of their trade from people who
buy cigarettes.
about the provisions of this bill. When you look through it you see what
it is attempting to do with the different divisions. Chapter 4 refers
to powers to investigate contraventions of this
act and chapter 5 refers to enforcing compliance with this act. I want
to stand up for those small and independent retailers all around the
country who will suffer the detrimental impact of this bill. Once again,
we are going to ask the very small business
sector to handle the consequences of a piece of legislation that is ill
thought out and will not achieve its objectives. Once again, we stand in
this place with a bad attempt to do very little on a question that will
affect the ability of small business to
survive. Not only do a lot of small petrol stations rely on trade from
people coming in to buy cigarettes, not only do small corner shops rely
on them, but a lot of small businesses in this country get significant
proportions of their trade from people who
buy cigarettes.
A study by Deloitte
Australia, an independent accounting firm, shows us convincingly and
compellingly that the outcome of this legislation will favour major
retailers and major supermarkets. I take that very seriously.
Once again, we are hurting the people at the very end of the equation
that have nothing to do with this, the small business owner, with no
thought and no regard to how their operation will continue to function.
'Just deal with it somehow' is the approach of
this government to small business on every occasion. They do not take
into account stock management, shrinkage, the loss of customers and the
loss of business. The Alliance of Australian Retailers is perfectly
right to stand up for itself and point out that
this is a violation of its rights. Once again, this is a government that
has a careless and utterly thoughtless approach to the carnage it
creates in the economy.
Australia, an independent accounting firm, shows us convincingly and
compellingly that the outcome of this legislation will favour major
retailers and major supermarkets. I take that very seriously.
Once again, we are hurting the people at the very end of the equation
that have nothing to do with this, the small business owner, with no
thought and no regard to how their operation will continue to function.
'Just deal with it somehow' is the approach of
this government to small business on every occasion. They do not take
into account stock management, shrinkage, the loss of customers and the
loss of business. The Alliance of Australian Retailers is perfectly
right to stand up for itself and point out that
this is a violation of its rights. Once again, this is a government that
has a careless and utterly thoughtless approach to the carnage it
creates in the economy.
The intellectual property
questions relating to this bill will be tested at law. We have heard
from tobacco companies that there will be legal action taken in relation
to our WTO obligations—and, yes, Australia
has world trade obligations. Of course these should be tested at law. It
is not outrageous that a company having its intellectual property and
branding removed by the government should take this to the court and
have it tested. In fact, when you look at the
Paris convention in 1883, the rounds that the WTO has been engaged in
around the world, the North American Free Trade Agreement and all the
different agreements and pieces of legislation around the world
protecting intellectual property, you can see that this
is a serious question for consideration. The government will have to
demonstrate the efficacy of this proposal in court—and so it should
under WTO obligations.
questions relating to this bill will be tested at law. We have heard
from tobacco companies that there will be legal action taken in relation
to our WTO obligations—and, yes, Australia
has world trade obligations. Of course these should be tested at law. It
is not outrageous that a company having its intellectual property and
branding removed by the government should take this to the court and
have it tested. In fact, when you look at the
Paris convention in 1883, the rounds that the WTO has been engaged in
around the world, the North American Free Trade Agreement and all the
different agreements and pieces of legislation around the world
protecting intellectual property, you can see that this
is a serious question for consideration. The government will have to
demonstrate the efficacy of this proposal in court—and so it should
under WTO obligations.
No government should be
allowed to rip property from any corporation or any entity without using
just terms acquisition. I would certainly stand up for the right of any
farmer, any landholder and any property owner
in this country not to have a government remove their property rights,
whether they be physical or intellectual property rights, without just
compensation. Yet we are proposing a bill here today that is in effect
removing the intellectual property rights of
these corporations.
allowed to rip property from any corporation or any entity without using
just terms acquisition. I would certainly stand up for the right of any
farmer, any landholder and any property owner
in this country not to have a government remove their property rights,
whether they be physical or intellectual property rights, without just
compensation. Yet we are proposing a bill here today that is in effect
removing the intellectual property rights of
these corporations.
If any member of this
place thinks that this is the last time we will see such a proposal, I
think that is complete and utter nonsense. I warn every member here: we
will see this again. Not only will the public
health lobby move on alcohol and fast food if this works but they will
continue to seek the removal of intellectual property rights from
corporations engaged in the production of other things in our society
today including fast food and alcohol. I do not believe
that that is the right approach either.
place thinks that this is the last time we will see such a proposal, I
think that is complete and utter nonsense. I warn every member here: we
will see this again. Not only will the public
health lobby move on alcohol and fast food if this works but they will
continue to seek the removal of intellectual property rights from
corporations engaged in the production of other things in our society
today including fast food and alcohol. I do not believe
that that is the right approach either.
In fact, the whole public
health mentality of the government is ridiculous. The health of people
relates to individuals. There is the person's individual health; there
is no such thing as the public health. You
cannot give a pill to the public health. The Labor Party's backbench is
trying to say that if we pass plain-packaging legislation cancer will be
removed from Australia—a completely ridiculous contention. There is no
law that we can pass in this place to remove
cancer. There is no law we can move in this place to say life is not
dangerous. There is no law we can move to prevent bad choices by
individuals in our economy. There is no law we can pass saying, 'Be
healthy.' There is no law we can pass in this place to
say to people that they will live a long and prosperous life. In fact,
we have a better system in Australia than many other free countries in
the world and we ought to recognise that. People are free to make their
own individual choices—good ones and bad ones.
health mentality of the government is ridiculous. The health of people
relates to individuals. There is the person's individual health; there
is no such thing as the public health. You
cannot give a pill to the public health. The Labor Party's backbench is
trying to say that if we pass plain-packaging legislation cancer will be
removed from Australia—a completely ridiculous contention. There is no
law that we can pass in this place to remove
cancer. There is no law we can move in this place to say life is not
dangerous. There is no law we can move to prevent bad choices by
individuals in our economy. There is no law we can pass saying, 'Be
healthy.' There is no law we can pass in this place to
say to people that they will live a long and prosperous life. In fact,
we have a better system in Australia than many other free countries in
the world and we ought to recognise that. People are free to make their
own individual choices—good ones and bad ones.
Yes, I think we should
pass laws where smoking impacts upon other people. Yes, of course we
should do those things to ensure that when you engage in an activity you
are not having a negative impact on someone else.
But, if the government determines that this is a legal product, which it
does; and if it determines that you are allowed to manufacture it,
which it does; and if it allows the industry to employ, produce,
manufacture, sell, distribute and, yes, then taxes it,
it ought not to go in there and say, 'Well, at the end of the day we
have got a committee of bureaucrats that the Minister for Health and
Ageing has put together and they have decided that your product is going
to be olive green, because we do not like your
product.' That is exactly what has happened in Australia today.
pass laws where smoking impacts upon other people. Yes, of course we
should do those things to ensure that when you engage in an activity you
are not having a negative impact on someone else.
But, if the government determines that this is a legal product, which it
does; and if it determines that you are allowed to manufacture it,
which it does; and if it allows the industry to employ, produce,
manufacture, sell, distribute and, yes, then taxes it,
it ought not to go in there and say, 'Well, at the end of the day we
have got a committee of bureaucrats that the Minister for Health and
Ageing has put together and they have decided that your product is going
to be olive green, because we do not like your
product.' That is exactly what has happened in Australia today.
I do not think that is
right. All the important decisions have been made. When the minister for
health says, 'This kills people,' if she believes that this kills
people, she should come in here and propose a law
banning the product. That is what she should do. I have got news for the
minister for health and the government: life kills people. Life is a
dangerous activity. There are no laws that we can pass to prevent that.
There are no laws we can pass to change that.
And it is disturbing to listen to the Labor Party backbench attempt to
articulate some sort of argument that having a drab colour on a packet
of cigarettes will prevent cancer or stop people dying. There are all
sorts of stories. There are very compassionate
circumstances and they are very difficult for the people involved, but a
law will not remove those circumstances from happening. It will not
alter them. People will still make bad choices. People will still be
free to do those things, and so they should be
in a free society.
right. All the important decisions have been made. When the minister for
health says, 'This kills people,' if she believes that this kills
people, she should come in here and propose a law
banning the product. That is what she should do. I have got news for the
minister for health and the government: life kills people. Life is a
dangerous activity. There are no laws that we can pass to prevent that.
There are no laws we can pass to change that.
And it is disturbing to listen to the Labor Party backbench attempt to
articulate some sort of argument that having a drab colour on a packet
of cigarettes will prevent cancer or stop people dying. There are all
sorts of stories. There are very compassionate
circumstances and they are very difficult for the people involved, but a
law will not remove those circumstances from happening. It will not
alter them. People will still make bad choices. People will still be
free to do those things, and so they should be
in a free society.
There is a way to improve
the public health and that is by making people responsible for their
individual health choices, making them more responsible for their own
health. That must be the focus of good and effective
government policy. The criticism I have of this legislation is not that I
am pro smoking and want to see smoking everywhere in Australia today.
It is that there is no evidence based policy that suggests that this
will have an impact on the rates of smoking,
yet that is the reason stated in the objective of this bill. There is no
argument credibly advanced by those opposite that this is the approach
that will stop smoking.
the public health and that is by making people responsible for their
individual health choices, making them more responsible for their own
health. That must be the focus of good and effective
government policy. The criticism I have of this legislation is not that I
am pro smoking and want to see smoking everywhere in Australia today.
It is that there is no evidence based policy that suggests that this
will have an impact on the rates of smoking,
yet that is the reason stated in the objective of this bill. There is no
argument credibly advanced by those opposite that this is the approach
that will stop smoking.
There are ways of
stopping smoking in Australia today, but of course this is the misnomer
of Australian politics in this sort of question—the government is
addicted to the revenue. The government wants this revenue
and it cannot say no to it. That is the hideous position we are in in
passing a law removing the intellectual property rights of corporations
in this country, legal corporations providing legal products: because we
cannot live with a situation where the government
takes the revenue and will not do anything about a product that the
health minister herself says is killing people.
stopping smoking in Australia today, but of course this is the misnomer
of Australian politics in this sort of question—the government is
addicted to the revenue. The government wants this revenue
and it cannot say no to it. That is the hideous position we are in in
passing a law removing the intellectual property rights of corporations
in this country, legal corporations providing legal products: because we
cannot live with a situation where the government
takes the revenue and will not do anything about a product that the
health minister herself says is killing people.
I will also say in the
final minute that I have that I reject this approach to law. I think it
is poor. I think that it will lead to more unintended consequences for
small retailers, and small businesses all over
the country will suffer as a result. It will not have a great impact on
smoking at all. It now threatens to undermine one of the key tenets of
the rule of law in our society today, and that is property rights.
Without property rights, there is no law—that is
a famous quote—and if we attack intellectual property rights in a way
that is not justified, and I do not believe it is justified under this
legislation, we are undermining the rule of law in our country today and
in a way, I think, that will not produce better
health outcomes for Australians. So why are we doing it?
final minute that I have that I reject this approach to law. I think it
is poor. I think that it will lead to more unintended consequences for
small retailers, and small businesses all over
the country will suffer as a result. It will not have a great impact on
smoking at all. It now threatens to undermine one of the key tenets of
the rule of law in our society today, and that is property rights.
Without property rights, there is no law—that is
a famous quote—and if we attack intellectual property rights in a way
that is not justified, and I do not believe it is justified under this
legislation, we are undermining the rule of law in our country today and
in a way, I think, that will not produce better
health outcomes for Australians. So why are we doing it?