Butt It Out: HCA upholds Plain Packaging Legislation

CHRISTINE TODD
Volume 2, Issue 5 (Originally Published 20 August 2012)
 
THIS LEGISLATION IS CONSTITUTIONALLY VALID is what I want etched onto my gravestone in the event that I die whilst halfway through my Torts readings. It’s also poetry to the ears of the Gillard government this week, with a High Court decision upholding the validity of the government’s plain packaging laws.
 
The decision, popularly viewed as the government’s way of saying “put that in your pipe and, oh, this is awkward, um…” paves the way for cigarettes to be sold in plain packaging later this year.  From December, all cigarettes in Australia will have to be sold in olive-green packets with no branding or logos on them. The decision could potentially have a domino effect on tobacco control legislation around the world.
 
British American Tobacco, Japan Tobacco International, Phillip Morris, and Imperial Tobacco Australia had fiercely argued in April that the government’s plain packaging laws were tantamount to an acquisition of their trademark property, without the provision of adequate compensation. Particular provisions of the Tobacco Plain Packaging Act 2011 (Cth) were, they argued, contrary to the restraints of s 51(xxxi) of the Constitution because the acquisition had been made on unjust terms.
 
The Commonwealth stubbornly resisted this claim, stating it had the right to regulate products that were harmful to human health. A majority of the High Court found in the government’s favour, with the statement: “At least a majority of the Court is of the opinion that the Act is not contrary to s 51(xxxi)”.
 
The battle has been hard fought between the government and big tobacco, with Attorney-General Nicola Roxon front and centre of the government’s campaign for better public health. Ms Roxon has since stated that the plain packaging laws will remove the last method for tobacco companies to promote their products, and would prove to be a vital preventative public health measure.
 
The decision has garnered much international interest, with the World Health Organisation congratulating Australia on its success in exposing the Achilles heel of the tobacco giants. It has also given a boost to countries such as the UK and New Zealand, who have considered taking similar legal steps to implement plain packaging.
 
However, the legislation is not in the clear yet. Countries such as the Dominican Republic, Honduras and the Ukraine intend to challenge the legislation through the World Trade Organization, arguing the laws run counter to Australia’s key global trading obligations. The government will also need to prepare itself, as tobacco company Phillip Morris pursues arbitration proceedings via the UN Commission on International Trade Law.
 
The full reasons for the decision will be published later this year.
 
Christine Todd