Senator BIRMINGHAM: (12:28): I rise to speak on Tobacco Plain Packaging Bill 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011, and I do so having had, I think, a track record in my few years in this place of expressing reservations where appropriate about proposals that governments introduce that increase the nanny-state approach to regulation and legislation in this country. Today my remarks will be no different and I will outline some concerns I have with this legislation, notwithstanding, ultimately, recognition that it will pass.

I do hold strong concerns with the mission-creep of government into the lives of individuals and into the operations of private enterprise. Individuals find government spending more and more of its time interfering in things and therefore more and more of their money telling them what is good for them and telling them how to live their lives or run their businesses. In some ways this is a good thing. I fully accept that information is power, and knowledge used wisely can lead to better decision making by individuals. But law makers in this country, at all levels, must ensure they know when and where to draw the line, when enough knowledge is available to empower sensible decisions and when government action starts to impede on voluntary, informed decision making by people, decisions that are made by individuals with full cognisance of the consequences of those decisions.

In approaching this debate, I am reminded of the words of PJ O’Rourke in his Liberty Manifesto of 1993. He said:

There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences.

That libertarian sentiment does, I believe, need some tempering, so I will leap from the modern day liberal thinking of PJ O’Rourke to the early liberal thinker John Stuart Mill. In his classic text On Liberty, Mill said:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him …

…   …   …

In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

In On Liberty, Mill set a standard for liberal thinking which, I believe, is as broadly relevant today as it was when he penned those words in 1859, and it is with that philosophy in mind that I turn to this legislation. Within this legislation are elements of both persuasions and compulsion. The impact of this legislation for individuals is largely one of persuasion. However, the impact for business is largely one of compulsion. For individuals, the legislation attempts to make smoking less appealing by, firstly, removing any allegedly attractive or appealing elements of tobacco packaging and, secondly, by effectively warning people about the harms of smoking. For business, the legislation strips from them their established brands and trademarks, with no recompense.

Let us assess these motivations and the consequences of this legislation in sequence-firstly, the removal of the allegedly attractive or appealing elements of the packaging and its impact on the motivations of individuals. The impact of this so-called plain packaging approach on consumer behaviour is, frankly, unknown; it has not been tried anywhere else. That is not to say that it should not be tried here; somebody has to be the first in all reforms, of course. But what I do note is that already cigarette packaging is hardly attractive to the eye in any event. The unattractiveness of existing cigarette packaging is due to steps already taken by governments to achieve the second motivation behind this legislation, which is to effectively warn people about the effects of smoking. Health warnings, however, have actually been displayed on tobacco products since 1973. Most significantly, they were dramatically overhauled by the Howard government with reforms which took effect in March 2006. It was the former member for Adelaide and Parliamentary Secretary for Health Trish Worth who championed and delivered these reforms, and they were quite striking in their effect.

Tobacco products today have health warnings that cover 30 per cent of the front of the packet-that being the most prominent, most visible top fold of the packet-and 90 per cent of the back of the packet. Each warning contains graphic and disturbing imagery. Alongside those disturbing images are warnings that are rotated on different packets. Those warnings-such as ‘Smoking causes emphysema,’ ‘Smoking causes mouth and throat cancer,’ ‘Quitting will improve your health,’ ‘Smoking: a leading cause of death,’ ‘Smoking harms unborn babies,’ ‘Smoking causes blindness,’ ‘Smoking is addictive,’ ‘Smoking doubles your risk of stroke,’ ‘Smoking causes lung cancer’ and ‘Smoking causes heart disease’-stand out very, very strongly indeed.



The consequences of this legislation on business are clear and are meaningful and do apply an element of compulsion-in this case, a ban on companies using trademarks, branding, logos et cetera on their products. This is an extraordinary step for government to take. It is not that in passing this legislation the government is making these products, cigarettes, illegal. It is not that in passing this legislation the government is acquiring the trademarks or brands from the companies in question. It is that this legislation effectively extinguishes these trademarks and logos by banning their use.


This raises some serious questions around intellectual property rights and the rights of companies in terms of established logos. Companies, in whatever sector, argue that such branding is important for product differentiation. Because no steps have been taken by government to regulate this product or make it illegal for manufacture and sale, it remains a competitive market with different companies seeking to maximise their individual market share. That is right and they will continue to seek to maximise their market share. But stripping all of them of their branding and logos and trademarks means their capacity to do so is minimised.

Taking away this intellectual property has been cited by many as raising the potential risk of compensation claims from these companies. Intellectual property law has built up over a long and sustained period of time in Australia. It has an important role to play in all our dealings, particularly as in emerging economies and some of our major trading partners like China we go to great lengths to urge them to impose stricter, tougher and tighter intellectual property laws. By undermining our own, we undermine that argument in those places. And we potentially expose Australian tax­payers to the ridiculous situation where, if tobacco companies challenged this legis­lation in the courts and are successful, they could end up having to pay significant sums of money to those tobacco companies. I would think everyone in this chamber would not wish to see occur.

I am not usually inclined to quote journalists but Barrie Cassidy made a very valid point with regard to the legal advice that the government relies on. Speaking on the 7PM Project in September he said:

I mean that is the really scary thing, that they felt they had a really strong case-

speaking of the government’s migration amendments-

and clearly they didn’t. The same office, by the way, is advising the government on the plain packaging of cigarettes and this is a big deal because the big cigarette companies around the world have got deep pockets and they are taking on the government and they want this to be an international test case. If the government loses that one we’ll all suffer. You won’t get your pension until you are 80.

Whether Cassidy is right or wrong will of course be determined in the courts. But there is a real threat, and it is an unnecessary threat. If the government wished to make tobacco products less attractive they could have increased the size of the warnings. They could have largely overtaken the packets with warnings. They could have stripped trademarks and logo use on the packaging right back to the absolute bare minimum: simply the top of the packet, the bottom of the packet-a very small, 10 per cent, portion of the packet. Instead, they have taken the extra step that imperils the taxpayer because of the potential for challenge and, in doing so, creates the situation where the arguments Australia has historically made in favour of a strong and robust recognition of intellectual property are undermined. That is what concerns me about this legislation.

I am no fan of smoking and no particular fan of tobacco companies. My father died of smoking related cancers when I was just 12. I would have liked to have known him a little better than I did. However, I think in this place we need to always consider legislation with a rational mind and take a rational approach, not an emotional approach. I think the motivations behind this legislation are clearly sound. Reducing smoking is important. Reducing smoking rates is something we should strive to do. If there is a belief that we can manage to do that by taking up more of the packaging with health warnings then that is worthy of support. That is why the opposition is not opposing the primary legislation before us. But it seems to me to be a significant and unnecessary step, in overtaking the packaging with these health warnings, to take away the trademark and logo and extinguish their use in the process. That seems to me to expose taxpayers to unnecessary risks, and that it will be on the government’s head. They have decided to go down this path.

The opposition have taken the approach that we stand just as much against smoking as anybody else. We stand ready, just as much as anybody else, to campaign against smoking and to do our bit to try to discourage all Australians from taking up this habit. That is why we introduced graphic health warnings when in government in 2006. But, having taken that step and demonstrated our credibility in this space, we are not going to allow the government to wedge the opposition or to paint us as being against measures to try to reduce smoking rates. That is why we will let this legislation go through. But it is a pity that the government was not willing to have a sensible and rational discussion about the implications of this legislation.


Senator Brandis slightly scoffs, knowing that sensible and rational discussions are not what this government is known for.

Senator BRANDIS: You’re just such an optimist, Senator Birmingham!

I try to be, Senator Brandis. It is a pity that the government was not willing to engage in sensible discussions that could have seen an extension of the graphic warnings applied under the Howard government so that they overwhelmed the packaging, but would not have exposed Australia to the hypocrisy of undermining our longstanding position on strong intellectual property rights and would not have potentially exposed the Australian taxpayer to claims over the loss of brand as a result of this legislation.


Since these reforms took effect in 2006, it has been nigh on impossible for anyone to pick up a packet of cigarettes without being warned about the health consequences every time they look at the packet. To return to my opening comments, there is no excuse for people not already being fully informed about the consequences of their smoking. In fact, it is almost guaranteed that smokers these days choose to smoke while being fully informed of the potential negative consequences.

That, in fact, would be illegal, Senator Di Natale, and that law should be enforced fully. They may choose to reject those consequences. They may even dispute the validity of those consequences or the smoking warnings. But they are certainly informed of the facts and the figures, which, of course, have very emotive pictures alongside them to emphasise the message. So, in terms of the motivations behind this legislation, we do not know whether this will work in reducing the appeal or attractiveness of smoking, but we do know that these packets have been pretty unattractive since the reforms of 2006. We also know that it is impossible, barring sight or literacy problems, that people are not already being warned about the negative consequences of smoking. It is hard to see how or if this legislation will make any meaningful difference to the likelihood of people taking up smoking or choosing to smoke.