CHAPTER 1
INTRODUCTION
Background
1.1
On 6 July 2011, the Minister for Health and Ageing, the Hon
Nicola Roxon MP, introduced the Tobacco Plain Packaging Bill 2011 (TPP Bill),
together with the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (TM
Bill), into the House of Representatives. Both pieces of proposed legislation
are part of the Australian Government's initiative to require plain packaging
of tobacco products.
1.2
Both bills were referred to the House of Representatives Standing
Committee on Health and Ageing (HAA Committee) on 7 July 2011. The
HAA Committee tabled its Advisory Report on the bills on
22 August 2011, with recommendations that both bills be passed.[1]
The House of Representatives passed both the TM Bill and the TPP Bill
on 24 August 2011.
1.3
On 18 August 2011, the Senate referred the provisions of the
TM Bill to the Senate Legal and Constitutional Affairs Legislation Committee
(committee) for inquiry and report by 19 September 2011.
Purpose of the tobacco plain packaging bills
1.4
The TPP Bill seeks to prohibit the use of all tobacco industry logos,
brand imagery, colours and promotional text on the retail packaging of tobacco
products. It provides for the use of a brand and variant name in a standard
colour, position, font size and style. The TPP Bill also mandates that retail
packaging of tobacco products be a standard drab dark brown colour, with the
exception of health warnings, the brand and variant name, and any other
relevant legislative requirements. Under the TPP Bill, it would be an offence
to sell, supply, purchase, package or manufacture tobacco products in retail
packaging that does not comply with these requirements.
1.5
The TM Bill is consequential to the TPP Bill and is intended to amend
the Trade Marks Act 1995 (Trade Marks Act) to enable regulations to be
made in relation to the use of trade marks. In her second reading speech, the
Minister noted the objective of any such regulations 'would be to ensure that
the practical operation of the [TPP Bill] does not prevent businesses from
registering new trademarks, or from protecting registered trademarks against
infringement'. The Minister also stated that the TM Bill had been introduced
'so that, if necessary in the future, the government can quickly remedy any
unintended interaction between the [TPP Bill] and the [Trade Marks Act]
that cannot be dealt with under the [TPP Bill]'.[2]
Rationale for plain packaging of tobacco products[3]
1.6
Most forms of tobacco advertising have been prohibited in Australia
through the Tobacco Advertising Prohibition Act 1992. However, words,
signs and symbols on tobacco products and packaging are currently exceptions to
the definition of 'tobacco advertising'.[4]
1.7
In August 2009, Senator Steve Fielding introduced a private senator's bill
seeking to amend product information standards to remove brands, trade marks,
and logos from tobacco packaging. In November 2009, Senator Fielding's bill was
referred to the Senate Community Affairs Legislation Committee (CA Committee).
However, following prorogation of the 42nd Parliament in July 2010, and after
due consideration, the CA Committee chose not to continue its inquiry into the
legislation in the 43rd Parliament.[5]
1.8
In April 2010, responding to the recommendations made by the National Preventative
Health Taskforce, the Australian Government announced a comprehensive
anti-smoking action package. The package aims to reduce Australia's smoking
rate to 10 per cent by 2018, and to halve the rate of smoking among Indigenous
Australians over time in line with targets set by the Council of Australian
Governments' (COAG) National Healthcare Agreement. As part of this wider suite
of reforms, which includes increasing tobacco excise, restricting internet
advertising of tobacco and additional funding for anti-smoking social marketing,
the Australian Government announced its intention to introduce legislation to mandate
plain packaging for tobacco products.
1.9
Prior to introducing tobacco plain packaging legislation, the Australian
Government committed to consult broadly. The consultation process was administered
by the Department of Health and Ageing. It comprised targeted consultations
with representatives of the tobacco industry (manufacturers, importers and
retailers), and wider consultation open to all stakeholders between 7 April 2011
and 6 June 2011. This allowed 60 days for interested parties to
comment on an exposure draft of the TPP Bill and a consultation paper. The consultation
received 266 submissions from a range of stakeholders, including public health
organisations, non-government organisations, the tobacco industry, and
interested individuals.
Recent events
1.10
British American Tobacco Australia (BATA) has been seeking the release
of Australian Government legal advice regarding plain packaging, including
through freedom of information processes. On 1 September 2011, BATA
announced it would apply for 'special leave to appeal to the High Court'
regarding this legal advice. It also indicated that, should the plain packaging
legislation be passed, it would 'head straight to the High Court to challenge'.[6]
BATA reiterated this intention during the committee's inquiry.[7]
1.11
On 27 June 2011, Philip Morris Asia announced that it had
served a notice of claim against the Australian Government regarding plans to
introduce plain packaging for tobacco products under Australia's Bilateral
Investment Treaty with Hong Kong.[8]
Conduct of the inquiry
1.3 The committee advertised the inquiry in The
Australian newspaper, and details of the inquiry, the TM Bill and
associated documents were placed on the committee's website. The committee also
wrote to a number of organisations and individuals, inviting submissions by 2 September 2011.
1.4 The committee received 42 submissions, which are
listed at Appendix 1. All public submissions were published on the committee's
website.
1.5 The committee held a public hearing for the
inquiry, which took place on 13 September 2011 at Parliament House in
Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and
copies of the Hansard transcript are available online at https://www.aph.gov.au/hansard.
Acknowledgement
1.6 The committee thanks those organisations and
individuals who made submissions and gave evidence at the public hearing.
Note on references
1.8 References in this report are to individual
submissions as received by the committee, not to a bound volume. References to
the committee Hansard are to the proof Hansard. Page numbers may
vary between the proof and the official Hansard transcript.
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