Plainly Constitutional: The Upholding of Plain Tobacco Packaging by the High Court of Australia
27 Pages Posted: 12 Feb 2013
Date Written: February 11, 2013
In November 2011, Australia became the first country in the world to legislate for ‘plain packaging’ of tobacco products. As of 1 December 2012, the packaging of tobacco products sold in Australia must be a standard, drab dark brown colour, and the printing of tobacco company logos, brand imagery, colours or promotional text on that packaging and on individual tobacco products is prohibited. While the Australian scheme is described as “plain packaging”, tobacco packaging is required to be far from “plain” in the ordinary sense of the word, with requirements for large health warnings, comprising graphics, warning statements and explanatory messages, and information messages. The plain packaging regime, introduced by the Government of Australia, in order to, inter alia, give effect to its obligations under the WHO Framework Convention on Tobacco Control (FCTC) has been challenged in three fora — the High Court of Australia, the World Trade Organization, and under a bilateral investment treaty (BIT) between Australia and Hong Kong. The basis of the High Court challenges was the contention that plain packaging constituted an “acquisition of property” for which just terms had not been provided, and therefore violated § 51(xxxi) of the Australian Constitution. On 15 August 2012, the High Court dismissed these challenges. This paper outlines the requirements of the Australian plain packaging scheme, and its objects and rationale, explains the High Court challenges, and analyses the High Court’s decision. It seeks to draw out the major themes and narratives that underlie the decision of the 6-1 majority. It aims to provide an overview that will be helpful to those considering legal issues relating to plain packaging in other domestic jurisdictions and in the ongoing WTO and BIT challenges. While each legal challenge is pursued and decided in its own context and its own way, no challenge to tobacco control measures takes place in isolation. The accumulation of litigation experience and development of jurisprudence build an invaluable collective resource of ideas, themes and narratives that can be drawn upon in different ways in different places to strengthen ongoing efforts to reduce the global burden caused by tobacco and the tobacco industry.
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