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Tobacco plain packaging laws clear test, court rules

Amy Corderoy
Published: October 5, 2012 – 5:20PM

BIG TOBACCO’s arguments in a High Court challenge to plain packaging were based on a “fatal” flaw, the Chief Justice of the High Court of Australia has said.

The reasons for the Court’s decision that the plain packaging of tobacco products is not unconstitutional were released today, revealing the Commonwealth won its case with a six to one majority.

Tobacco companies Japan Tobacco International SA and British American Tobacco Australasia had sought to challenge Australia’s plain packaging of tobacco products – due to be implemented on December 1 – on the grounds that the laws involved the government acquiring their intellectual property.

But the six judges who ruled against the challenge said while the government had imposed rules and regulations on the tobacco companies, it was not using their property for its own benefit and so was not violating the constitution.

”Although the (Tobacco Plain Packaging) 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,” a summary of the judgement said.

”The act was valid as it did not acquire property. It therefore did not engage section 51(xxxi) of the constitution.”

The director of the McCabe Centre for Law and Cancer, Jonathan Liberman, said today the six to one verdict was a “resounding win” for the government.

“The reason for the decision is no surprise, that neither the Commonwealth nor anyone else has obtained any proprietary benefit or interest, which was always the test under the Australian constitution,” he said.

The president of the Australian Council on Smoking and Health, Mike Daube, said it was unclear as yet if the reasons would help Australia fight off other challenges to the laws currently underway in international trade courts, but it would certainly do no harm.

“I think the strength of this decision will give the Commonwealth a lot of comfort,” he said.

The High Court had initially revealed that the tobacco industry had lost its case in August, but had not provided the reasons behind the decision.

In his judgment, the Chief Justice of the High Court, Robert French, ruled that “on no view” could it be ruled that the government had acquired a proprietary benefit, a conclusion that was “fatal to the case” of the tobacco companies.

The only dissenting judge, Dyson Heydon, delivered a stinging criticism of governments’ eternal hatred of the part of the constitution, Section 51(xxxi), that ensures it must pay for property it acquires.

“The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die,” he said. “That is why it is eternally important to ensure that that flame does not start a destructive blaze.”

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