The federal government’s plain-packaging laws have passed their latest hurdle, a legal challenge in the High Court of Australia which was struck down earlier this week, paving the way for the commencement of the policy from the 1st of December this year. The judgement was eagerly awaited with some predicting the costs of a potential loss at billions of dollars for loss of trademark and intellectual property.
But alas, this never transpired and we are just months away from olive green becoming the most hated colour in the country- or maybe it is already given that it was chosen as the colour for the so-called “drab packaging” that tobacco products will now be clothed in.
On the free choice side of the debate it was all about the right of companies to their intellectual property and trademarks despite the judgement by the highest court in the land.
But there was one element of liberalism that has seemed to be conspicuous in its absence from the debate over the plain packaging laws at least around and since the judgement and that is the ‘Harm Principle’ as defined by the philosopher, John Stuart Mill. This principle states that the actions of individuals should only be limited in order to prevent harm to other individuals. Writing in his book On Liberty, Mill stated “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”
Since the judgement, people have screamed, “well what about putting alcohol in the same ordinary and uniform packaging boat?”. I’m not exactly sure, but last time I checked, the decision to inhale dangerous amounts of alcohol was completely up to the user and the fumes, while awful and an assault on the senses for those within cooee of a heavy drinker, do not have the ability to kill.
That doesn’t mean the effects of alcohol, which have had increased public exposure recently won’t lead to harm to others, sadly they will and that is an horrific reality of a mind-altering substance. Moves have and will continue to be made in an attempt to reduce that harm that is caused to others around heavy drinkers. The difference here is that there is generally a safe level of alcohol consumption before your behaviour becomes thuggish whereas with smoking there is not. Violent offenders too can be that way with or without buckets of booze in their systems.
Putting harmful tobacco products in uniform packaging has only a little, in itself to do with affecting in a positive way the idea put forward by the 19th century political philosopher. But it may go some way to achieving that end.
To put cigarettes in olive green packs will likely not lead to an immediate cut in the rate of smoking as those already puffing away will likely continue as they know their brands well and the new packaging will have little or no impact on their decision-making processes. It’s even debatable whether or not the changes will have any real impact at all with no practical evidence The graphic pictures which couple with the health warnings may continue to contribute to a decline in the rate of smoking as evidence has shown.
But old-style army colour packaging, while possibly contributing to cutting down in the long-term the amount of people sucking back on a cancer stick, coffin nail, call it what you will, while diminishing the harm caused to others by this dreadful habit, will not completely remove that threat of harm to others. Only other measures can do that.
But surely any measure that does have at least some impact in diminishing the number of people smoking in the country surely removes the harm caused to some people and should be celebrated as a positive for public health. Second-hand smoke is bad after all and the less people blowing smoke in your face the better.
But given the danger that smoking is to not just the user, but those around them, the application of the Harm Principle could go much further. Think asbestos. That product causes awful sickness and death too, though smoking at a much higher rate, bu asbestos was phased out late in the 20th century and then banned by the government in 2003.
It is true also that a lot of the harm to others has been removed with many states banning smoking in a variety of public spaces which differs state by state, territory by territory. This can only be seen as a positive step forward.
Moves might continue toward an eventual ban of these slender killing machines, but only when the federal government finds within itself the ability to wean itself off the revenues generated in an attempt to change the behaviour of individuals. Then and only then will the true and full extent of the Harm Principle of John Stuart Mill be realised. That and it might well save substantial healthcare dollars which could be funneled elsewhere.
In one of a string of highly anticipated High Court judgements this year the Canberra-based court ruled by a majority of 6-1 that the National School Chaplaincy Program (NSCP) is unconstitutional because it goes beyond the powers of the commonwealth enshrined in the Constitution. The court reached this decision despite the commonwealth arguing that it was able to provide the funding for the policy under s61 of the Constitution which says that executive power “extends to the execution and maintenance” of the foundation document as well as “the laws of the commonwealth”.
There was no legislation governing the agreement.
On the other hand, the court ruled against the plaintiff based on s116 of the Australian Constitution which deals with religious freedom, saying that the program was not an affront to the freedom to practise, or not practise religion.
The court said that while there was a religious test involved in the hiring of school chaplains, a test not required by the commonwealth to hold a government position, the state was not involved in the direct provision of these services and so that section of the Constitution was not breached by the chaplaincy program.
The High Court ruled that the program, delivered in Queensland by the Scripture Union of Queensland did not constitute holding a commonwealth office under s116 as the state was not a party to contractual agreements with the school chaplains employed under the program.
The first major thing to point out is that it is a potentially very positive decision for the devolution of power from the executive branch of government, the ministry, which made the decision on the National School Chaplaincy Program under former Prime Minister John Howard.
The future of the program as a whole is unsure though it would seem quite likely that legislation could be put through which gives either the commonwealth or the states the power and funding to provide for the continuation of the chaplaincy services, though legal experts have said that it is far from clear that accompanying legislation would properly remedy the constitutionality of the NSCP.
But arguments against the pr0gram as it stands also go well beyond the legal and constitutional aspects as judged today by the High Court of Australia and common sense rather than legal argument should lead to a determination that the idea as it stands does not give students real choice when needing to seek the assistance and counsel of suitably qualified adults.
Changes to alter the NSCP which were put forward by the Labor Government to amend the policy had been inserted to give schools a choice as to whether or not they provided a religious or a non-religious chaplain to offer counselling services to students.
What any good program should do in the counselling area is to provide the parents, not the school with the choice of whether or not their sons or daughters are able to seek the confidence of a chaplain or a counsellor. That is, the programs should give the opportunity to provide both, rather than one or the other at the very least.
An even better option would be to provide students, particularly the older ones with the ability to decide what is best for themselves the opportunity to choose who they seek to get advice from.
The High Court judgement in this way is half good at least as far as power concentration goes but where the court did not judge in favour of choice there should be common sense moves to allow greater choice for the students or their families in all cases with a preference towards offering professional counsel above and beyond that which religion provides.
There are only two more days left in the last parliamentary sitting period before the budget is handed down by Treasurer Wayne Swan on behalf of the Gillard Government in May. As a result, the ALP Government will be competing hard with the Coalition for the remaining two days in Canberra this week to try to create momentum going into what will have to be a very difficult fiscal tightening if the government are to reach the surplus they have promised. All this and more points to a big two days of Question Time before parliament rises late tomorrow.
The Coalition look set to continue pursuing the government over questions about the Minerals Resource Rent Tax (MRRT) and to significantly focus on the already passed carbon tax which comes into force in just a matter of months. Both the carbon tax and the MRRT look like they will focus of a High Court challenge and this will play out in the coming months.
The Opposition may also decide in small part, to continue to pursue matters related to Craig Thomson and the Fair Work Australia investigation into alleged improprieties at the Health Services Union which have already seen a recommendation that 3 former officials in Victoria face Federal Court action.
The government look set to continue to focus on the economy specifically through the revenue raised by the MRRT and how it will fund programs and tax cuts for business.
There looks set to be less and less “Opposition bashing” during the answers to Dorothy Dixer’s in particular but also in responses to questions from the Coalition thanks to very strict policing of the “direct relevance” Standing Order which saw the Treasurer kicked out of the parliament under 94a for one hour yesterday and others effectively warned to become relevant.
The noise, with two days in parliament to go will surely be at a high, with temper tantrums flaring up from time to time throughout the hour and ten minute session of Question Time. A number of MPs will surely be removed for an hour under Standing Order 94a. Who will they be and just how entertaining or frustrating will Question Time be? Find out at 2pm AEDT.
The Independent MP for the electorate of Lyne, Robert Oakeshott has a plan, a plan that he thinks in his infinite wisdom will end the deadlock over the over-hyped asylum seeker issue which plagues our political debate all too much for the scale of the problem that it actually presents in political reality.
Since the Government announced it had reached an agreement with Malaysia over an asylum seeker/refugee swap agreement, parties have been united in opposition against the policy, even the Australian Greens and the Coalition saw eye-to-eye on this since the first time in, well a long time frankly.
Not only this, but the High Court saw fit to decry Malaysia and offshore processing as inconsistent with Australian law and our international obligations, throwing all offshore processing policy into legal doubt.
The Member for Lyne has now decided to enter the asylum seeker debate with this bill which amounts to nothing more than the “Malaysian Solution” in both theory and practice.
The bill put forward by Mr Oakeshott would allow for the Immigration Minister, Chris Bowen to form an agreement with any nation that is a member of the Bali Process, any one or more of 50 nations in the region. Surprise, surprise guess which country is a member of the Bali Process? It starts with “M” and it ends in “a”. Any further hints needed.
As if any further clarification was needed that this bill would lead to the implementation of the Malaysia deal then they only need to refer to the words of the Immigration Minister who confirmed that he would ask the Labor caucus to support the bill when it comes to a vote.
Did Mr Oakeshott really think that it wouldn’t take all of a first glimpse to work out that he was doing the bidding of the Gillard Government’s Malaysian asylum seeker swap policy? That simply surrounding it with other options would lead to the Government not picking Malaysia?
Coming from a man who wasted 17 minutes of our valuable time just to tell us what we already knew, we have another waste of time in a policy which has already been roundly defeated without even the need for a vote to confirm just how disliked the policy was. This time though there is far more time than 17 minutes to be wasted on a stealth policy dud from someone who would like to think he is a canny political operator.