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Australian Government Solicitor

 

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Tobacco plain packaging

One of the high-profile cases which involved a number of AGS lawyers in 2012 was the litigation subsequent to the legislation for the plain packaging of tobacco products.

AGS's Susan Reye provided advice to, and worked closely with, the Department of Health and Ageing in the development of the Tobacco Plain Packaging Act 2011 and associated regulations. The legislation prohibits tobacco industry logos, brand imagery, colours and promotional text other than brand and variant names in a standard colour, position, font size and style.

At the same time AGS provided advice on the development of the Competition and Consumer (Tobacco) Information Standard 2011 under the Competition and Consumer Act 2010 which required new, larger graphic health warnings on all tobacco products from 1 December 2012 in line with plain packaging.

In 4 separate cases, a number of tobacco companies challenged the validity of the Act on the basis that it acquires property otherwise than on just terms contrary to s 51(xxxi) of the Constitution. The tobacco companies commenced proceedings in the High Court, with 2 of these cases being referred to the Full Court of the High Court (British American Tobacco Australasia Ltd v Commonwealth and JT International SA v Commonwealth). Those cases were heard on 17–19 April 2012.

AGS's Andrew Buckland and Gavin Loughton, assisted by David Bennett QC, Deputy Government Solicitor, led a team of lawyers and legal support staff  acting for the Commonwealth in defending the validity of the Act.

The Commonwealth Solicitor-General, Stephen Gageler SC, wrote to CEO Ian Govey to express his gratitude for the work AGS performed in the tobacco plain packaging cases. 'The Commonwealth's case at every stage in this hard fought litigation – pleadings, evidence and submissions – was presented with the utmost professionalism and attention to detail,' he said.

The Commonwealth, represented by AGS, was matched against 4 well-resourced multinational corporations represented by 4 of the largest commercial law firms in the country. It was not found wanting.'

The Court subsequently handed-down orders upholding the validity of the Plain Packaging Act, announcing that, by at least a majority, the Act is not contrary to s 51(xxxi) of the Constitution. The outcome was a key achievement for the government and the Attorney-General, Nicola Roxon, who described the decision as a watershed moment for tobacco control, with Australia's actions being closely watched by governments around the world. The Attorney-General thanked the AGS legal team for their hard work on the case.

In addition to the High Court litigation, AGS's Simon Daley – Chief Solicitor Dispute Resolution – is leading a team of AGS lawyers working on the ongoing investment treaty arbitration brought by Philip Morris Asia against the Commonwealth under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. Philip Morris Asia asserts in its Notice of Arbitration that the plain packaging legislation constitutes a breach of a number of Australia's obligations under the agreement with Hong Kong. The arbitral tribunal was constituted on 15 May 2012.

The AGS team worked closely with the Office of International Law in the Attorney-General's Department, the Department of Foreign Affairs and Trade and the Department of Health and Ageing as well as a counsel team led by the Solicitor-General.

This is an extract from the 2011–12 AGS annual report