Australia

This was an application by the Tobacco Institute of Australia (TIA) for judicial review of recommended regulations developed by the Working Party of the National Health and Medical Research Council (NHMRC) relating to passive smoking.

In developing its recommended regulations, the NHMRC was required to go through a process of public consultation in accordance with its governing legislation, the National Health and Medical Research Council Act 1992 (Cth). The TIA had provided the NHMRC with submissions and materials to consider, however the NHMRC had declined to do so on the basis that it would only consider papers published in peer-reviewed scientific press.

The TIA alleged that the NHMRC's failure to consider the material was inconsistent with the mandatory provisions of s12 of the Act; constituted a failure to take into account relevant considerations; was so unreasonable that no reasonable body could have so acted (ie. Wednesbury unreasonableness); and was a failure to accord procedural fairness to the TIA.

Finn J agreed with the TIA's submissions. His Honour indicated that he would make orders sanctioning the NHMRC's failure in adhering to its obligations under the Act and pursuant to common law; however, he invited further submissions from the parties on the precise form of those orders.