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Australia: Plain Packaging Law Upheld by High Court

(Aug. 16, 2012) On August 15, 2012, the High Court of Australia rejected a constitutional challenge to legislation passed in November 2011 that will require plain packaging of cigarettes. (High Court of Australia, Summary of Pronouncement of Orders: JT International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v Commonwealth of Australia [2012] HCA 30 (Aug. 15, 2012); Mark Metherell, Big Tobacco Loses High Court Battle over Plain Packaging, THE SYDNEY MORNING HERALD (Aug. 15, 2012).)

The cases before the Court relate to the Tobacco Plain Packaging Act 2011 (COMLAW). Four tobacco companies had argued that the Act amounted to the removal of their intellectual property rights in a manner contrary to section 51(xxxi) of the Australian Constitution, which authorizes the Parliament to pass legislation relating 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.” (AUSTRALIAN CONSTITUTION, COMLAW.)

At least a majority of the High Court found that the legislation is constitutional and orders were made accordingly. The Court has not yet released its reasons for the decision; the full judgment will be published at a later date. Documents on the cases, including hearing transcripts and written submissions, can be found on the High Court website. (British American Tobacco Australasia Limited and Ors v. The Commonwealth of Australia, Case No. S389/2011; JT International SA v. Commonwealth of Australia, Case No. S409/2011 (both last visited Aug. 15, 2012).)

The cases, which were heard together, were closely watched by other countries. In particular, New Zealand and the United Kingdom are currently considering whether to pass plain packaging laws. (See Kelly Buchanan, New Zealand: Legislation Requiring Plain Packaging for Tobacco Products to Be Developed, GLOBAL LEGAL MONITOR (Apr. 23, 2012).)

The Australian legislation is subject to other challenges at the international level. Philip Morris Asia has lodged a Notice of Arbitration under a 1993 investment treaty between Hong Kong and Australia, and Ukraine and Honduras have initiated World Trade Organization dispute settlement processes in relation to the plain packaging measures. (Investor-State Arbitration – Tobacco Plain Packaging, Attorney-General's Department (last visited Aug. 15, 2012).)