Tobacco giants in court over plain packaging

AAP
April 17, 2012

THE Federal Government and four tobacco giants are about to face off in the High Court over Labor’s world-first laws requiring all cigarettes to be sold in plain packages.

The three-day hearing starts this morning before the seven justices of the full court.

British American Tobacco (BAT), Philip Morris, Imperial Tobacco Australia and Japan Tobacco International claim the government’s legislation, which passed parliament in November, is unconstitutional.

They argue the Commonwealth is acquiring their property – in the form of brand names and logos – without just compensation.

But the government, in its submission to the High Court, says that’s rubbish because it is not getting any benefit.

Rather than taking over the companies’ brands it says the legislation simply restricts their use “in a manner appropriate and adapted to reducing harm to members of the public”.

Big tobacco is throwing everything at the legal challenge because it is worried other countries could follow Australia’s lead if the government wins the day.

BAT spokesman Scott McIntyre says the stoush will operate as a “test case” on the validity of plain packaging legislation.

“As a legal company selling a legal product we have continually said we will defend our property on behalf of our shareholders as any company would,” Mr McIntyre said.

However, Attorney-General Nicola Roxon believes the government is on strong legal ground.

Earlier this month she said: “Plain packaging of tobacco products is a legitimate measure designed to achieve a fundamental objective – the protection of public health.”

The Commonwealth argues that even if big tobacco could prove the government was acquiring their property rights the manufacturers still wouldn’t win in court.

That’s because the purpose of the plain packaging legislation – namely to improve public health – is within the scope of the Commonwealth’s legislative power under the constitution’s commerce, trade and external affairs powers.

The Queensland, ACT and the Northern Territory attorneys-general are all intervening in the High Court case along with the Cancer Council of Australia.

Labor’s laws will force all cigarettes to be sold in drab olive-brown packs from December 2012.