June 8

No smoking, please

I have never seen smoking in any ACM office, even when it was lawful.

 I have seen some constitutional monarchists smoking in what  seems to be the one cigar club in the country in the beautiful city of Perth. And there is no doubt that smoking was onc epopular and even fashionable. 


I mention this to emphasise that ACM takes no position on the federal government’s proposed  legislation for the plain packaging of cigarettes which the Minister of Health Nicola Roxon indicates will be a “world first”. 

The Minister hopes that other countries will follow Australia but it seems that other countries have already considered this and decided against it.

The purpose of this note is to mention the constiutional and legal issues surrounding this policy.


...constitutional issues…

There are constitutional and legal problems which stand in the way of this action.  And one practical problem which  Ms Roxon concedes is there is no way in which she can show that the incidence of smoking will fall if the measure is introduced. 

This can only shown once the measure has been in place.  Whether this will be relevant in any litigation is yet to be seen.

The constitutional barrier may be in  placitum xxxi of section 51:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: 

 (xxxi.) 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.The High Court will be asked to treat this ban on the use of intellectual property as an acquisition, and one on which just terms must be paid.  The amount of just terms likely to be sought is said to be several billion dollars.

…international  law…. 

Alan Bennett, an adjunct professor of law at the University of Sydney and and a practitioner in international trade law has told Christian Kerr of The Australian (20/5) that the proposed legislation will also be in breach of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

This is an international agreement administered by the World Trade Organization (WTO).  It  sets  down minimum standards for of intellectual property (IP) regulation as applied to nationals of other WTO Members.

..US-Australia Free Trade…

He believes that the proposed  legistlaion would also breaches the US-Australia Free Trade Agreement which incorporates the TRIPS agreement.

 In addition he says it would breach  the Paris Convention for the Protection of Industrial Property, the foundation stone of the international intellectual property regime for more than a century.

 He says overseas companies could petition their governments to take action against Australia and of course there could be international litigation involving billions of dollars of potential compensation.  It is understood that when Mr. Crean was minister he was advised not to proceed with such legislation because of these constitutional an legal issues

…what is clear…  

One thing is clear.  If the bill passes, which is likely, it will be followed by national and international litigation.     


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