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The Appellate Body of the World Trade Organization (WTO) issued its final ruling affirming that Australia’s pioneering law requiring plain packaging for tobacco products and finding it entirely consistent with WTO agreements. In particular, the WTO appeal ruling confirmed the original finding that the evidence shows that tobacco plain packaging laws "are apt to, and do in fact, contribute to Australia's objective of reducing the use of, and exposure to, tobacco products."
The appeal ruling also confirmed that:
In 2012 and 2013, Honduras, Indonesia, Cuba and Dominican Republic brought complaints in the World Trade Organization (WTO) claiming that Australia's tobacco plain packaging laws breached the WTO agreements. The complaining countries argued that Australia’s law breached the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) by failing to provide required protections to trademarks rights and because it is an unjustifiable encumbrance on the use of tobacco trademarks; and the Agreement on Technical Barriers to Trade (TBT Agreement) because it is more trade-restrictive than necessary to fulfill a legitimate objective.
This long anticipated ruling by the WTO rejected all grounds of complaint against Australia's plain packaging laws in a 900 page ruling. The panel's authoritative ruling should be powerful in persauding governments to move forward with tobacco plain packaging and can be used to resist many of the flawed arguments the tobacco industry puts forward to oppose the policy. The WTO considered extensive evidence from Australia and the complaining countries and found the evidence demonstrates tobacco plain packaging works to reduce tobacco use. The panel re-affirmed that states have the right to regulate for public health under WTO law and the policy does not interfere with international trademark rights. The panel made strong findings of fact which undermine many of the other arguments that the tobacco industry tries to use to oppose plain packaging laws. These are detailed in the briefing document that can be downloaded under the 'additional documents' tag.
The Australian Competition and Consumer Commission successfully took action against an e-cigarette company for making false and misleading statements in violation of the Australian Consumer Law. The e-cigarette company stated on its website and in a YouTube video that its products did not contain carcinogens and toxic substances found in traditional tobacco cigarettes.
In this decision, the court accepted the Commission’s recommendations and ordered the company to stop making statements that its products do not contain carcinogens and toxic substances for a period of three years. The court found that the company had no evidence to support its statements, which had the potential to mislead consumers who might not have purchased the products if they had known about the presence of these chemicals. Additionally, the court ordered the company to include information on its website about this decision for 90 days. Finally, the court fined the company $50,000 and its director $10,000.
The Australian Competition and Consumer Commission successfully took action against an e-cigarette company for making false and misleading statements in violation of the Australian Consumer Law. The e-cigarette company stated on its website that its products did not contain harmful chemicals and carcinogens found in traditional tobacco cigarettes.
In this decision, the court accepted the Commission’s recommendations and ordered the company to stop making statements that its products do not contain harmful chemicals and carcinogens for a period of three years. The court found that the company had no evidence to support its statements, which had the potential to mislead consumers who might not have purchased the products if they had known about the presence of these chemicals. Additionally, the court ordered the company to include information on its website about this decision for 90 days. Finally, the court fined the company $40,000 and its director $15,000.
A patient at an Australian mental health facility sued to block implementation of the facility’s smoke-free policy. The court upheld the smoke-free policy because: (1) it was within the authority of the mental health hospital to adopt the policy; (2) the state tobacco control law did not create a right to smoke in mental health hospitals; and (3) the hospital properly considered the impact that the policy might have on the patient’s human rights, such as the right to dignity. In particular, the court found that the hospital gathered extensive input on policy over a four-year period and that the policy would be implemented along with psychological and other support systems, including nicotine replacement therapy and cessation counseling.
Philip Morris Asia challenged Australia's tobacco plain packaging legislation under a 1993 Bilateral Investment Treaty between Australia and Hong Kong. This was the first investor-state dispute brought against Australia.
Philip Morris Asia initiated the arbitration in November 2011, immediately after the legislation was adopted. Australia responded with jurisdictional objections and sought a preliminary ruling on these issues. The tribunal bifurcated the proceedings and on 18 December 2015 issued a unanimous decision agreeing with Australia's position that the tribunal had no jurisdiction to hear the claim.
The main objection to jurisdiction was that at the time the dispute arose, Philip Morris Asia was not a foreign investor in Australia. The government announced its decision to proceed with plain packaging legislation in April 2010. At that time, 100% of the shares in Philip Morris Asia were owned by the parent company located in Switzerland (which had no investment treaty with Australia). Philip Morris International then undertook a restructure in 2011 which meant that Philip Morris Asia, located in Hong Kong, became the sole owner of the shares in the Australian subsidiaries.
The Tribunal found that Claimant’s restructure was for the principal, if not the sole, purpose of gaining protection under the Treaty so as to bring a claim against the plain packaging legislation. As such Philip Morris Asia's claim was an 'abuse of rights'. This concluded the arbitration in Australia's favour, subject to finalisation of the costs claim.
A landlord was ordered to pay compensation to his tenant (a percentage of the rent and moving costs) for breaching a rental agreement. The tenant moved out due to an ongoing issue of smoke drifting from a downstairs apartment. The appeals panel which heard the case agreed there was a structural ventilation problem with the building which allowed smoke to flow into the apartment, making it unfit for habitation. Although the landlord was not responsible for the drifting smoke, the panel agreed that he was nevertheless responsible for providing a unit fit for habitation and dismissed the landlord’s appeal.
Information about this decision coming soon.
The respondent in this appeal, Ms Green, contracted lung cancer as a result of exposure to environmental tobacco smoke in the workplace and her own tobacco use. She was exposed to passive smoking in the workplace for a period of about 26 years until she was diagnosed with lung cancer in 2002, and smoked somewhere between 10-50 cigarettes a day for a period of 17 years up to 1992. She was successful in her claim for workers compensation before an Arbitrator, who found that (among other things) exposure to smoke in the workplace was a substantially contributing factor to the contraction of her disease. This was an appeal from that decision.
The respondent insurer alleged that (1) there was insufficient evidence before the Arbitrator to conclude that exposure to passive smoking in the workplace substantially contributed to Ms Green's disease; and (2) the Arbitrator gave insufficient reasons for his decision.
In this decision, Deputy President Roche found that there was sufficient evidence for the Arbitrator to conclude that Ms Green's employment was a substantial contributing factor to her injury. However, Deputy President Roche agreed with the appellant that the Arbitrator gave insufficient reasons for his decision, and therefore remitted the matter to a different Arbitrator for re-determination.
The defendant was previously convicted of selling products designed to resemble a tobacco product in breach of s106(a) of the Tobacco Products Control Act 2006 (WA). The defendant had been selling e-cigarettes and nicotine-free 'e-Juice'. (See: Hawkins v Van Heerden  WASC 127 (10 April 2014)).
In this decision, the Supreme Court imposed a fine of $1,750 for the offence and ordered the defendant to pay the costs of the trial and the appeal. In doing so, Pritchard J observed that it was not necessary to decide whether e-cigarettes were harmful to their users, because whether or not the product sold was harmful to human health was not an element of the offence under s106 of the Act. Rather, the purpose of s106 is to discourage the promotion of tobacco products and smoking by banning the sale of products which resemble tobacco products and contribute to normalising the activity of smoking.
Philip Morris Asia (PMA) commenced arbitral proceedings against Australia in relation to Australia's Tobacco Plain Packaging Act and associated regulations, pursuant to the Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (the Treaty). An ad hoc Tribunal has been established to adjudicate the dispute, with its registry in the Permanent Court of Arbitration. For background on the case and earlier Procedural Orders, see related case: Philip Morris Asia Limited v. Commonwealth of Australia (Procedural Order No.4).
In this decision, the Tribunal ruled on Australia's request to have the proceedings bifurcated between arguments on jurisdiction and arguments on the merits. PMA objected to the hearing being bifurcated, primarily on the grounds that the issues to be decided significantly overlap and that Australia's jurisdictional arguments are not substantial.
Australia alleges that the Tribunal has no jurisdiction to hear the dispute on 3 grounds, as follows.
1) First, Australia alleges that PMA's "investment" in Australia was not admitted in accordance with the Treaty because PMA's Statutory Notice under Australia's foreign investment rules contained false and misleading assertions as to the purpose of the investment. Australia alleges that PMA's true purpose, which should have been stated on the Statutory Notice, was to place itself in a position where it could bring this claim under the Treaty.
2) Secondly, Australia alleges that PMA's claim falls outside the Treaty because it relates to a pre-existing dispute; or, alternatively, that it amounts to an abuse of right because PMA re-structured its investments with the express purpose of bringing this claim, after the Australian Government had announced its intention to implement plain packaging.
3) Thirdly, Australia alleges that PMA's assets - being only its shares in PML and PM Australia - do not constitute "investments" under the Treaty because PML and PM Australia's investments do not themselves enjoy the protections of the Treaty (not being investments in Hong Kong).
In this Order, the Tribunal ruled that Australia's first and second jurisdictional arguments should be bifurcated and heard first, but that the third argument should be joined with the merits of the dispute. The Tribunal reasoned that if Australia wins on either of the first or second arguments, it would dispose of the entire proceeding, whereas Australia winning the third argument would not be dispositive.
The Tribunal subsequently set down the hearing on jurisdiction for February 16, 2015 (see Procedural Order No.9, uploaded here under "Related Documents").
The operator of a website selling electronic cigarettes (e-cigarettes) was convicted of violating the Tobacco Products Control Act 2006 (WA) by selling a product that is “designed to resemble a tobacco product.” The Supreme Court overturned an earlier ruling by a lower court, which had acquitted the seller.
The Supreme Court found that the e-cigarettes, which contained only “e-juice” and no nicotine, resembled a tobacco product because they are used for inhaling vapour, which is exhaled in a manner similar to smoke from a cigarette.
See further the sentencing judgment: Hawkins v. Van Heerden [No 2]  WASC 226 (24 June 2014).
The parties to this dispute were neighbours in adjoining town-houses, both part of a relevant Strata Scheme. The applicants alleged that the respondents regularly and continually sat outside in their courtyard and smoked, and that the exhaled smoke drifted into their courtyard and home. The applicants, who were father and daughter, suffered from bronchitis and asthma (respectively). They alleged that the respondents' conduct was in breach of s117 of the Strata Schemes Management Act 1996 (NSW), which prohibits an occupier of a lot to use or enjoy the lot in such a manner as to cause a nuisance or hazard to the occupier of any other lot.
Senior Member Buckley noted that there is no scientific or medical dispute that the inhalation of second-hand smoke can cause an increased risk of adverse health effects. The Tribunal member found that the risk of exacerbation of respiratory symptoms was a "hazard" within the meaning of s117 of the Strata Schemes Management Act, and ordered that the respondents were not to smoke or allow others to smoke within 4 metres of the boundary of the applicants' dwelling.
This case relates to a decision by the Australian Communications and Media Authority (ACMA) that Channel Seven breached a condition of its licence by broadcasting a tobacco advertisement in contravention of s13 of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act).
On 18 July 2010 Channel Seven broadcast a segment on its evening news program entitled "Cheap Cigarette Imports", relating to the importation from Germany and sales by Coles supermarkets of budget brand cigarettes. The segment reported that Coles was selling the imported cigarettes cheaper than the local equivalent products. It included visual images of people smoking, audible and visual messages about tobacco products, and visual images of brands.
The ACMA decided that the segment was a "tobacco advertisement" and that it gave publicity to and promoted tobacco products in contravention of the TAP Act. The ACMA found that the fault element of intention was present in the broadcast.
Channel Seven appealed the ACMA's decision to the Federal Court. At first instance, the Federal Court upheld the ACMA's decision and dismissed Channel Seven's application. This is the appeal from that decision.
In this decision, the Full Court of the Federal Court allowed Channel Seven's appeal and set aside the ACMA's decision that the segment constituted a "tobacco advertisement". The Court decided that the fault element of intention was not present in the broadcast.
For the earlier decision, see: Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority  FCA 812 (14 August 2013).
This was an application by Channel Seven for judicial review of the decision of the Australian Communications and Media Authority (ACMA) that a segment on its evening news program constituted a "tobacco advertisement" in contravention of s13 of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act).
On 18 July 2010 Channel Seven broadcast a segment entitled "Cheap Cigarette Imports", concerning the importation from Germany and sales by Coles supermarkets of budget brand cigarettes. The segment reported that Coles was selling the imported cigarettes cheaper than the local equivalent products. The segment included visual images of people smoking, audible and visual messages about tobacco products available at Coles, and visual images of brands.
The ACMA decided that the segment was a "tobacco advertisement" and that it gave publicity to and promoted tobacco products in contravention of the TAP Act. It did not accept Channel Seven's submission that "publicity" must mean "positive publicity". It also rejected Channel Seven's argument that the segment fell within the exceptions in the legislation for political discourse or anti-smoking advertisements. The ACMA further rejected the argument that, to the extent that the segment constituted a tobacco advertisement, it was incidental to the remaining parts of the news report. The ACMA found that the fault element of intention was present in the broadcast.
Channel Seven appealed the ACMA's decision to the Federal Court on the grounds that it involved errors of law and a constructive failure to exercise jurisdiction. The Federal Court upheld the ACMA's decision that the segment constituted an unlawful "tobacco advertisement" in contravention of s13 of the TAP Act and dismissed Channel Seven's application.
Channel Seven additionally submitted that s13 of the TAP Act was constitutionally invalid to the extent that it applies to communications that do not comprise positive publicity. It argued that, so applied, the provision would impermissibly burden the constitutionally protected freedom of communication about government or political matters. It was not necessary for the Court to determine this question to decide the case.
Note: this decision was overturned on appeal, see Channel Seven Adelaide v. Australian Communications and Media Authority  FCAFC 32 (21 March 2014).
The applicant contracted emphysema as a result of exposure to second-hand cigarette smoke in her workplace. In an earlier decision, she was refused leave to bring proceedings for damages under the Accident Compensation Act because she was out of time. (See: Pattison v Herald & Weekly Times Limited  VCC 2014 (19 December 2012)).
This was the hearing of the appeal against that decision. The applicant appealed on the grounds that the lower Court had failed to properly identify the compensable injury as emphysema rather than chronic obstructive airway disease, with the result that it erred in determining the date her injury was known.
The Court upheld the applicant's appeal, granting leave for her to bring proceedings for damages.
Note: the respondent unsuccessfully applied to the High Court for special leave to appeal. The transcript of the High Court's hearing and decision in that application is uploaded here under "Related Documents".
The plaintiff alleged that she suffered chronic obstructive airways disease as a result of exposure to second-hand smoke while employed by the defendant. She claimed that she had been exposed to a work area full of smoke for 5 years but she had never been a smoker.
The defendant alleged that the plaintiff's claim was statute-barred because she had become aware of her injury more than 3 years before bringing the case, in contravention of the Limitations of Actions Act.
Judge Misso found in favor of the defendant, ruling that the plaintiff's claim was statute-barred. However, Judge Misso also commented that if the plaintiff had made an application for serious injury earlier, then she would have been successful: based on the medical evidence, she had proved all of the elements necessary to establish that she had suffered a serious injury which resulted in a long-term impairment of the function of her lungs.
Note: this decision was successfully appealed, see Pattison v Herald & Weekly Times Ltd  VSCA 121.
The applicants lived above the respondents in an apartment complex. The respondents were heavy smokers. The applicants alleged that smoke from the respondents' unit drifted into their apartment causing them distress, in breach of s167 of the Body Corporate and Community Management Act which prevents an occupier using his or her lot (property) in a way that creates a nuisance or interference with another occupier.
The Adjudicator found that s167 would only be breached if the applicants could establish that the cigarette smoke was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of "ordinary sensitivity". Because the applicants tendered no evidence of the extent of smoke emanating from the respondents' lot, the Adjudicator dismissed the application.
Note: for a similar case, see Admiralty Towers  QBCCMCmr 264 (23 June 2011).
Philip Morris Asia (PMA) commenced arbitral proceedings against Australia in relation to Australia's Tobacco Plain Packaging Act and associated regulations (the plain packaging legislation) pursuant to the Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (the Treaty).
The plain packaging legislation mandates every aspect of the retail packaging of tobacco products including the appearance, size and shape of tobacco packaging. It prohibits the use of trade marks, symbols, graphics and other images, and mandates that brand names and variants must be printed in a specified font and size against a uniform drab brown background. The plain packaging legislation came into full effect on December 1, 2012.
PMA alleges that by implementing the plain packaging legislation Australia has violated several of its obligations under the Treaty. It says that the plain packaging legislation virtually eliminates its branded business by expropriating intellectual property, transforming it from a manufacturer of branded products to a manufacturer of commoditized products with the consequential effect of substantially diminishing the value of PMA's investment in Australia - in circumstances where PMA alleges that plain packaging will undermine rather than support the purported public health rationale of the legislation. On that basis, PMA alleges that, in contravention of the Treaty, Australia has: expropriated its investments; failed to provide its investments fair and equitable treatment; unreasonably impaired its investments; and failed to accord its investments full protection and security. PMA is seeking damages from Australia in the order of "billions" of dollars.
In its response, Australia asserts that PMA acquired its interest in PM Australia after the Australian Government had announced its decision to implement plain packaging, and therefore that PMA's claim must fail on both jurisdiction and on the merits. Further, even if that were not the case, Australia rejects each and every of PMA's claims of breach of its obligations pursuant to the Treaty. Further still, Australia says that the plain packaging legislation is a non-discriminatory regulatory action of general application designed and adopted by the Australian Government to achieve the most fundamental public welfare objective - the protection of public health (i.e. the police powers exception).
An ad hoc Tribunal has been established to adjudicate the dispute pursuant to the Arbitration Rules of the United Nations Commission on International Trade Law (the UNCITRAL Arbitration Rules), with its registry in the Permanent Court of Arbitration.
The Tribunal has made a number of Procedural Orders (see under "Related Documents"). In this Order (Procedural Order No. 4), the Tribunal ruled on Australia's request that the proceedings be bifurcated so that a ruling on Australia's jurisdictional arguments would occur before a substantive hearing on the merits of the case. PMA resisted bifurcation. Following written and oral arguments, the Tribunal ruled that a decision on bifurcation should be postponed until after a Statement of Claim and full Statement of Defence on all aspects of the case were submitted.
The hearing of argument on bifurcation was subsequently held in February 2014, and decided in Australia's favour. See: Philip Morris Asia Limited v. Commonwealth of Australia (Procedural Order No.8).
In a consolidation of two cases where large tobacco companies challenged the constitutionality of the Australian Commonwealth’s Tobacco Plain Packaging Act, the majority of the High Court found for the Commonwealth, upholding the constitutional validity of the Act.
The Act specifies all of the physical features of tobacco products, including their dimensions, their colour and finish, and the permitted use of trademarks and other marks. In particular, the Act requires uniform "plain" packaging for all tobacco products, consisting of graphic health warnings on at least 75% of the front of the pack and 90% on the back of the pack, with the brand name only to appear in a specified dimension and font, against a specifically chosen drab brown background.
The companies claimed that the Act constituted an acquisition of their intellectual property without just terms in contravention of s51(xiii) of the Australian Constitution and that it was therefore invalid. The majority of the Court (French CJ, Gummow, Hayne, Bell, Crennan and Kiefel JJ) held that, although the Government had "taken" the property of the tobacco companies, there had been no "acquisition" because neither the Government nor any third party acquired any benefit as a result. (The tobacco companies argued unsuccessfully that the Government had acquired a benefit because it had acquired the use of space on the pack dedicated to public health warnings; or, alternatively, that it had acquired "control" of the pack.)
Heydon J dissented from the majority opinion, finding that the Commonwealth had "acquired" property in the sense that it acquired control over the appearance of tobacco products and their packaging.
It was unnecessary for the Court to consider the wider arguments justifying the legislation on public health grounds.
All of the publicly available Court documents, including transcripts of the hearings and submissions, are available here under "Related Documents".
This was an application for judicial review of Parramatta City Council's ban on smoking in outdoor dining areas located on the footways of public roads owned by the Council (footway restaurants). The application was brought by a business group on behalf of a group of local restaurants. (Note: smoking in enclosed public spaces is prohibited under the Smoke-free Environment Act 2000 - the ban does not apply to footway restaurants).
The Court found that the Council had power to impose smoking bans in footway restaurants as conditions of approval under the Roads Act and the Local Government Act. However, the Court found that the Council had exercised its power invalidly in this case.
The defendant, which operated a duty-free store at Sydney Kingsford Smith International Airport, pleaded guilty to 7 offences of display of tobacco advertisements in contravention of s16 of the Public Health (Tobacco) Act 2008. The offences were committed by the retail display of tobacco packages bearing tobacco brand names, because the brand names on the packages amounted to "tobacco advertisements" as defined in the Act.
The Court ordered that the defendant pay fines totaling $337,500, in addition to the prosecutor's costs of $50,000.
This case relates to the meaning of "walls" in the Smoke-free Environment Act 2000 (NSW).
The Department of Health brought a prosecution against the Blacktown Worker's Club for permitting smoking in an enclosed public place in contravention of the Act. In the Local Court, the proceedings were run as a test case in relation to whether a mesh screen constituted a "wall" or a "gap" in a wall for the purposes of the Act. The Magistrate in the Local Court dismissed the prosecution on the basis that, among other things, mesh screens in the gaming area were not "walls" within the meaning of the Act and therefore the area was not an "enclosed public place".
On appeal, Harrison J overturned the Magistrate's decision that the mesh screens were not "walls" within the ordinary meaning of the word and remitted the matter to the Local Court.
This was a further appeal against that decision. The Court of Appeal overturned Harrison J's decision, reinstating the original decision of the Magistrate. The Court of Appeal held that Harrison J had erred in considering the dictionary definition of "wall" rather than by reading the words in their statutory context.
The prosecution against the defendant for breach of the Act was therefore dismissed.
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