Source: Quit Victoria collection, packs purchased Melbourne 29 November 2012

Australia’s no. 1 brand, Winfield and World’s no. 1 brand, Marlboro, in plain packaging

Constitutional challenge

• brought by the 4 major companies in the High Court of Australia (Australia’s highest court) • BAT • Imperial • JTI • Philip Morris

The tobacco industry’s claim

• that its property was being ‘acquired’ without ‘just terms’ compensation being provided

The tobacco industry’s claim

• the Australian Parliament has power to make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’

• although this is expressed as a conferral of legislative power, it operates as a constraint on legislative power

• legislation that violates the constraint is invalid, rather than enlivening a right to compensation

The tobacco industry’s claim

• Australian Constitution provides no protection for expression or speech, except for an implied right to freedom of political communication

• one State and one Territory have enacted statutory charters of rights which provide protection to freedom of expression (and which may be restricted to protect other interests)

• but only ‘individuals’ (ie natural persons) have ‘human rights’

High Court decision

• ‘A majority of the Court held that to engage s 51(xxxi) an acquisition must involve the accrual to some person of a proprietary benefit or interest. Although the Act regulated the plaintiffs' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the Commonwealth or any other person. As a result, neither the Commonwealth nor any other person acquired any property and s 51(xxxi) was not engaged.’

• 6-1 victory to the Government

The tobacco industry’s claim

• industry had to show the Government or someone else received a relevant ‘benefit’ or ‘advantage’ – made a number of ‘creative’

arguments

The tobacco industry’s claim

• purported benefits – Govt being able to impose its own

design, labelling and get-up on packaging

– increased prominence of advertising of Quitline services

– Govt obtaining the right to require printing of its messages without having to pay

– pursuit of the Act’s legislative purposes

The tobacco industry’s claim

– improved effectiveness of health warnings

– furthering of the Govt’s foreign policy objectives through giving effect to obligations under the FCTC

– obtaining of comprehensive control of the exploitation of packaging, cigarettes, registered trade marks and get-up

The tobacco industry’s claim

- if plain packaging led to a reduction in expenditure by the Australian Government on tobacco-related illnesses, this would be a ‘benefit’ to the Government and this should entitle the industry to compensation! (JTI)

Themes / narratives in reasoning • the relevant rights of the tobacco

companies were ‘negative rights’ • ie rights to exclude others, rather

than positive rights to use

• tobacco companies may have lost something of commercial value but commercial value is not the object of constitutional protection

Themes / narratives in reasoning • regulatory scheme no different in kind

from other legislation requiring health or safety warnings

• requirements of the scheme are conditions on the sale of tobacco products – the Cth does not use tobacco packaging or tobacco products

Themes / narratives in reasoning • the scheme allows the continued use

of brand names (including trademarked brand names) – the ability to use such names is valuable

• intellectual property rights are created to serve public purposes, but they are not sacrosanct and they do not operate above or in isolation from other laws created to serve other public purposes

Notable features of the decision • not a judgment on the merits of

plain packaging – no consideration of the evidence in favour of plain packaging

Notable features of the decision

• the WHO FCTC did not feature in the determination of the challenge • but it’s an important part of the legislation • included in the objects and mentioned in the Explanatory Memorandum

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