$750 for 750 word winner contest Joel Silver is 100% wrong in this piece, where he argues that the nanny-state violation of intellectual property rights with the introduction of plain packaging legislation is not worth caring about:
Being the social individual that I am, I attended a function earlier this week, which, typical of the functions I tend to attend, featured a notable guest speaker. This was the day after the Gillard Government's plain-packaging legislation had passed both houses of Parliament, and, according to the guest speaker, this was something that should infuse a great rage within me, being a precursor to an eventual outright ban on cigarettes, before which there'll be even higher taxes on them! And a licence to smoke! Unfavourable reference was also made to the ban on the advertising of cigarettes.
…I'm sorry, was that meant to offend the civil libertarian in me?
I've never been comfortable with this debate on plain-packaging. Don't get me wrong, if I were Nicola Roxon, I wouldn't have put up such a policy. That's not because I oppose it; were I a parliamentarian, I'd not be disinclined to supporting it (assuming a conscience vote was allowed on both sides). You're probably all saying to yourselves, "what's with the mixed-messages, Joel? This speed date is feeling far longer than two minutes." For want of more philosophical explanation, I do not believe it's an issue that should evoke a great deal of emotion from our side of politics. And stop eyeballing that blond at the next table, we've still got plenty of time to get to know each other.
None of my immediate family are smokers. At least, not anymore. My paternal great-grandmother, who died in 1999 at the ripe old age of 89, had smoked like a chimney until she was admitted to hospital (not because of lung cancer or alcoholism; her new doctor had decided her old medication simply wasn't doing much of a job keeping her going). My maternal grandfather took up smoking in the 1940s (I believe during his three-year Swiss recuperation after the Holocaust, though it may have been during the war). He went cold turkey in the 1970s, which I'm told increased his irritability the discovery of his sweet tooth. We obviously know far more now about the health risks of smoking than we did then, though of course, not everyone has access to that information when they take it up. If your parents smoke, and you take follow their lead, you probably won't know the facts for a while, by which time you're well and truly hooked. Alternatively, you were ignorant when you shared a fag at that house party in Year 8. You probably wouldn't have taken a whiff if you knew what an expensive habit, both monetarily and physically, that whiff was going to be!
However, if you know the facts, and you willingly take up smoking, you are, in all senses of the term, a moron . Furthermore, a smoker who, knowing the facts, does not at least try to dissuade another from following their course, is a despicable excuse for a human-being (that includes you smokers who one day wish to be parents; do your kids a favour and kick the habit beforehand). Just because you enjoy it, don't fool yourself about the impact [Editor: See, we even publish pieces that call members of our Editoral Board "morons" and "despicable". We truly are a blog where all views are welcome...] I make a point, however, of not saying these things when a mate offers me a cigarette (or more commonly, a cigar). As a civil libertarian, I respect the right of the individual to engage in activities to which I am averse, even if they end up unnecessarily occupying hospital beds. I'm not, of course, looking forward to burying one of my best mates in 20 years (who smokes over a pack a day).
The right to smoke, however, is a distinct, indeed, a divorced issue, from that of what smokes are packed in. That's why the Howard Government in 2006 introduced graphic health warnings for packages. Nothing wrong with requiring that the facts be told. Similarly, there is nothing wrong with cigarettes being kept in an opaque cabinet. That doesn't stop a smoker smoking, or going to a milk bar to buy smokes (though there'll probably end up sticking to a particular brand). I'm not a doctor, but it seems to me that, if you need to see a box of cigarettes to remember to buy them, you're probably not that into them. If we were to legalise marijuana, I doubt proponents would object to that being kept in an opaque cabinet (assuming the milk bar was willing to stock it). And if, because of plain-packaging, you forget that you need to buy cigarettes because seeing a box doesn't jump out at you, again, you probably don't enjoy or rely on them as much as you thought. Given cigarettes have an adverse health impact, the argument that it's a product that should be freely marketed is ludicrous, and I'm fed up of being told otherwise by my colleagues. If you want a smoke, the Government isn't stopping you from buying cigarettes, they're just making it easier to forget. Try putting a reminder in your iPhone if that's the case. Siri will help you.
"But aren't you concerned that this is a restriction of free trade, Joel?" You mean because tobacco companies are going to be harmed by this measure, because they'll be making less sales? Sure, from a purely free market perspective, this is a bad law. But these are harmful products. There is such a thing as a free market being too free ("sacrilege!"), that is, where the presumption of freedom allows participants to use that freedom to harm others. We don't allow misleading or deceptive conduct, isn't that a restriction of market freedom? You bet it is! But without such prohibitions, there is no guarantee that the marketplace will remain free, if we allow exploitation in the name of preserving liberty. The right to privacy (itself incomplete in Australia) is another "curb upon liberty" which is necessary to preserve freedom.
There is, of course, the problem of intellectual property, that is, the argument there has been an appropriation of tobacco companies' property by the plain-packaging legislation. This seems more a philosophical question than an issue of trite law, being whether restrictions on use of intellectual property amounts to appropriation. I don't believe it does. But it is a restriction upon free use. In a market economy, it is highly undesirable for the government to give itself the role of deciding the circumstances in which products may be marketed. Which gives rise to a more relevant question: does plain-packaging set a bad precedent for the free market? If we allow the government to intervene on tobacco, then why not the plain-packaging of Panadol? Coco-Pops? Potato Chips? I do not agree with the proposition that, if we make one exception, we are opening the floodgates. Making an exception for one product does not create a rule for all others. And there is no product more exemplary of this, I believe, than tobacco. Policy should first and foremost be guided by principle, but room must also be made for pragmatism. In practice, I cannot see this restriction upon this particular line of products as being the moment when the government began to run our supermarkets.
The plain-packing debate is one on which our side of politics should not have taken a stand. A civil libertarian must defend liberty in all circumstances where liberty has no impact upon the rights of others. The marketing of tobacco products can have an impact, and from that perspective, a civil libertarian does not cease to be a civil libertarian because they do not oppose the circumstances in which those products are marketed. Not opposing the regulation of tobacco sales does not make you a nanny-statist. That's why I have no position on the plain-packaging of cigarettes, and why I would oppose any repeal of these laws in future.
And by the way, speed dating ended 30 minutes ago. Same time next week, my friend?
Joel Silver is a Melbourne lawyer, and President of the Caulfield Young Liberals. He wishes us to note that he has "never smoked in his life, but is not averse to partaking in smokers' circle conversation, or to accompanying a mate outside for a smoke-o." To understand the reasons why plain packaging is such a bad idea, and why this article is totally wrong, we encourage you to read previous MH commentary on the issue here.
glad to see free speech is alive and well in Menzies House, in contrast to other sites.
Posted by: Joel Silver | December 7, 2011 at 02:34 PM
We fully support your right to be wrong, Mr. Silver :)
Posted by: Tim Andrews | December 7, 2011 at 02:37 PM
At a going rate of $1 a word, this speech wasn't exactly 'free'.
Posted by: Jack P | December 7, 2011 at 02:41 PM
There can only be one response to this article:
http://www.youtube.com/watch?v=5hfYJsQAhl0
Posted by: Jim | December 7, 2011 at 03:41 PM
It probably would have been quicker to write "because I hate freedom"
Posted by: Johnno | December 7, 2011 at 03:46 PM
It’s quite easy to condemn an issue as being of no consequence when it is, altogether differently, of no consequence to you.
I made a conscious, informed decision to take up smoking. What I do to myself, where it affects no one beyond myself, is not a matter in which uninvited input is permissible.
Who is the government to try to nudge me into making decisions that it thinks are best for me? This kind of paternalism should be expected in a society that cedes its personal responsibility to a government drowning in entitlement, but to accept it and ignore it is not the mark of a civil libertarian.
The reason this legislation is dangerous - for all the reasons you skew or discount out of hand - is the simple reality that it will not be effective. Ask anyone where their first cigarette came from.
No one buys their first cigarette, but receives or takes them from another. I stole my first hundred or so from my mother. What a packet of cigarettes looks like does not determine whether or not you buy them, but which brand you buy. We take steps in the wrong direction, gifting more and more of the individuality of our existences to the government, for no benefit.
tl;dr get outta my purchases, Trotsky, cos this isn’t gonna work any better than the USSR.
Posted by: Lara | December 7, 2011 at 04:35 PM
Another piece of mindless dribble from a government that seems more concerned with controlling peoples' lives than doing something worthwhile for the country.
Any more of this idiocy , and it might be time to move,,,,I'd like to enjoy the rest of my life ( 61 ) and this mob are making that more difficult by the day .
Nothing but a bunch of moronic fools who have either no idea of what they are doing , or are set on destroying the potential of what was once a great country.
Ignorant bloody socialists.
They have done nothing throughout history but create hardship and misery.
It's 2011, well I thought it was ,,these people are seriously retarded , and need to be dealt with accordingly.
Howe stupid can humans get? , putting up with this rubbish.
Posted by: Barry | December 7, 2011 at 05:28 PM
This debacle is set to cost the Australian taxpayer dearly as these tobacco firms line up with an army of lawyers to defend their trademarks and property rights. If they win we could see billions paid in legal bills and compensation to these firms. If the government wins it will open the floodgates worldwide to any firm or corporation that has trade marked their goods. Any government could do the same thing to McDonalds, Coco Cola, or any other firm where they deem their product to cause harm to the public. A real Pandora's box this one will be....and dangerous too.
Posted by: bluebell | December 7, 2011 at 05:48 PM
How did this article win the contest? I thought the purpose of this site was to advance the classical liberal approach, whether that be from a conservative or libertarian perspective. This site advocates the valueless centrist approach and doesn't even do it very convincingly, simply rambling from weak argument to weak argument.
It makes we wonder: how did it win? I'm thinking of two reasons. Firstly, this fellow is in the correct social set of the young liberals and someone thought it would win favour to promote his article. Or secondly, Menzies House thought it would be cool and prove how unbiased it was to publish an article that didn't agree with its central tenets. Both reasons are lame, and Menzies House has let itself down.
Posted by: John Mc | December 7, 2011 at 08:53 PM
Calling oneself a civil libertarian does not make it so, anymore than calling oneself a baked pineapple would make it so. Property rights are inextricably tied up with civil rights, and plain packaging is a clear violation of intellectual property rights. If you're happy to see someone have their rights violated because you dislike them then you are not a civil libertarian; rights are not conditional upon them being used for purposes you agree with.
Posted by: The Geek | December 7, 2011 at 11:27 PM
Having worked on a major tobacco litigation case and read through much of the discovery ... I can honestly say that tobacco companies are complicit in the deaths of hundreds of thousands.
Personally I would have no problem if this product was banned. However in recognition that some people will do what kills them regardless I would restrict the sale to chemists, just as I would decriminalise marijuana use and limit its sale to chemists.
Joel is correct in his observation that government has not appropriated the tobacco companies' intellectual property, but simply limited its use.
Posted by: SignedIn | December 7, 2011 at 11:52 PM
Ok going by your argument we should apply the same standard to McDonalds, and all other fast food joints that are responsible for the unholy wave of diabetes about to hit our youth. It's not as if they don't know that their product is responsible for clogging our doctors waiting rooms and hospitals. In fact we should add the computer industry as well, for turning an entire generation of kids into addicted mind numbing gaming zombies. The TV industry should also be included as toddlers and babies become mesmerized by the little square box - a convenient baby sitting tool for lazy parents.
Governments should be sued for unleashing a wave of unhealthy addictive products. They, who in turn garner rivers of revenue from all of the above. Governments are responsible for killing their own people. Traitorous cretins that they be, we should line them all up against the wall and execute the bastards at dawn. They are worse than the CEO's of James Hardy Industries.
I am now off to see Shine Lawyers and that superhero of the downtrodden, Erin Brockovich
http://www.brockovich.com/
Posted by: bluebell | December 8, 2011 at 12:29 AM
Oh and btw Signed In: Heard on a radio program this morning that governments could be toying with the idea of adding LITHIUM to our water supplies. Mass medication of the population....that will go down a treat!
http://www.theaustralian.com.au/news/world/just-add-lithium-and-be-happy-says-irish-psychiatrist/story-e6frg6so-1226215517047
Posted by: bluebell | December 8, 2011 at 12:38 AM
Andy read this - this is the stuff of science fiction. Would you trust any government to oversee a program like that?
http://www.thedaily.com/page/2011/05/22/052211-news-lithium-1-5/
Posted by: bluebell | December 8, 2011 at 12:48 AM
It seems ya gettin extonsions on this bloody house, love it.
Posted by: Shane Fisher | December 8, 2011 at 01:27 AM
@John - it didn't. A previous article by Joel won the contest. Sorry if that wasn't made clear.
Tim
Posted by: Tim Andrews | December 8, 2011 at 07:37 AM
Does this mean that when you'll present yourself at an hospital with lung cancer the State should not treat you? Or do you think that our taxes should be spent in attend to your "freedom"? Freedom comes with responsabilities, and you are being ireesponsible if you expect others to contribute to you exercising your freedom.
Posted by: dante | December 8, 2011 at 11:00 AM
you are right!! Please migrate. there are plenty of places where you don't have to put with this rubbish, and where you can cause any damage you like to anyone and too bad if they don't like it. You don't have to put with fool socialists and their reformist zeal. Who needs them when we could live happly without rules, regulations, laws and really excercise our freedom? Go and get them tarzan!! LOL
Posted by: dante | December 8, 2011 at 11:07 AM
By your argument we should ban nothing, irrespective of harm it could cause. Clearly a bizare notion. Similarly, the article was clear in stating that conceding on one ground does not mean conceding on ALL grounds. There is such thing as "balance", something sadly missing from those on the Right. The lack of empathy in extreme supporters of Right is similar to the lack of empathy found in criminals.
Posted by: dante | December 8, 2011 at 11:17 AM
By your argument everyone has a right to force any of their views on others so long as you can get 51% or more of the population to support you. The lack of respect extreme supporters of the Left show towards other people's personal choices and property is similar to the lack of respect found in criminals.
Posted by: John Mc | December 8, 2011 at 02:22 PM
Thank you for that easily decodable crash course in my own beliefs. Your key assumption is where your point falls down. I have private health insurance and expect noone to pick up after me.
Posted by: Lara | December 9, 2011 at 02:00 PM
Just opened in my nearest regional city - a FREE CHOICE Tobacconist with huge standout signs to match. He's doing a roaring trade - despite your vile government's nanny state attempts to shut down a LEGAL industry which ploughs billions into Federal coffers. Over 80% of the total cost of a packet of cigarettes goes to government. As my sister said (who is a smoker) she is paying the cost of any medical costs due to smoking UPFRONT! Plus she pays Private Health Insurance.
The Gillard/Greens government want to control peoples lives.
Smoking - LEGAL
Pokies - LEGAL
Alcohol - LEGAL
Fast Food - LEGAL
And yet governments rake in rivers of revenue from all of the above. If they REALLY had our welfare at heart they would ban all over night and cease taking their filthy lucre.
Socialism means state CONTROL over populations - get OUT of our lives!!!
Posted by: bluebell | December 10, 2011 at 01:36 PM
From a smokers perspective,, the real problem with plain packaging laws is that there will be no way of telling the flavour/strength of a particular pack of smokes before you buy it and try one. It's hard enough now, since Nicola Roxon removed the tar levels in exchange for non-descriptive terms like "rich" or "smooth"; it will be even harder without the color cues used on current packaging. Ultimately this will lock smokers in to their existing brand/strength choice as there will be no means of comparison.
Posted by: Robert C | December 12, 2011 at 09:58 AM