Australian Big Tobacco loses High Court fight against “plain packaging” laws

The Australian High Court, in a landmark decision, has rejected the claims of big tobacco firms this week and found in favour of the Federal Government’s controversial plain packaging laws. The radical attempt to discourage the use of cigarettes by disallowing firms from using their distinctive logos, colours and brandmarks from packaging is a world first and likely to prove highly influential as other countries around the globe consider similar strategies to combat smoking. Indeed, the decision has been welcomed by health experts as an effective policy change that will improve public health by discouraging smoking and reduce the costs weighed upon society from tobacco related ilnesses. However, the decision has raised eye brows over the government’s ability to violate/regulate a company’s intellectual property rights, which no doubt will have an effect upon the commercial and economic interests of big tobacco manufacturers in Australia.

Indeed, the decision has left a sour taste in the mouths of tobacco giants, who still maintain the view that they have effectively been stripped of their intellectual property rights without due compensation, a requirement they argued was owed under Section 51(xxxi) of the Constitution. However, the ruling implies that the majority of the High Court was of the opinion that there were no valid grounds to suggest an unconstitutional acquisition of property, nor did the plain packaging laws deprive the companies of their copyright entitlements. Firms can still apply their brand name to their cigarette packages, and also enforce their exclusive intellectual property rights against infringing competitors or individuals. What seems to be the underlying justification, however, lies in the fact that the Federal Government is legitimately regulating the use of intellectual property rights to protect public heath,  rather than doing so for the purpose of acquriing  a proprietary benefit. The full reasons underlying the decision are yet to be disclosed but are eagerly anticipated so that light can be shed upon the legal rationales used by the High Court in justifing the removal of the intellectual property of tobacco firms from packaging across Australia.

Companies that opposed the legisation were British American Tobacco, Philip Morris, Imperial Tobacco, Van Nelle Tabak Nederland and JT International SA. The plain packaging laws are expected to come into effect in December of this year, with the brand names depicted in a standardised font accompanied with health warnings.

Natural Justice: The Judiciary v The Executive

Re Minister for Immigration & Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57

Facts

Miah was from Bangladesh and arrived in Australia on 9 March 1996. He applied for a protection visa on the basis that he was a refugee under section 36(4)(a) of the Migration Act 1958 (Cth), i.e. that the ‘non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;’. It was up to the Minister for Immigration and Multicultural Affairs at the time, Mr. Phillip Ruddock, to be satisfied that Miah met the criterion required under section 36(4)(a) in order for Miah to obtain the protection visa.

Miah came from a liberal, secular, Bangladeshi family that was often in dispute with Islamic Fundamentalists. One such testament to their dispute was Miah giving evidence that Islamic Fundamentalists targeted  his father due to his unorthodox views and murdered him in Bangladesh’s war of independence. Further, while at university in Bangladesh, Miah engaged in political-satire cultural and literary functions which criticised the Islamic Fundamentalists and those opposed to independence.

In evidence, Miah submitted that many attempts were made on his life whilst living in Bangladesh. On one occasion a hand-made bomb was thrown into his office in Dhaka. He subsequently fled to Thailand for two years. Upon his return, he married a Hindu woman. The couple were sentenced to 101 public lashings each and told that they had seven days to leave the village lest they be killed.

Miah alleged that the Bangladesh National Party had been supporting Islamic Fundamentalists and that his own Government would not protect him if he were to return to Bangladesh. The Minister, in determining whether or not Miah should be granted to protection visa, noted that the Awami League (a pro-independence political party) had recently come into power in Bangladesh. Mr. Ruddock refused Miah’s application for a protection visa on the following grounds:-

1. The recent election minimised the number of Islamic Fundamentalists who held a seat in Parliament.

2. The population, by not electing the Islamic Fundamentalists, were, in the Minister’s view “basically religious moderates who shun the radical brand of Islam… Bangladeshis in general are tolerant”.

3. The Bangladeshi Constitution provides for freedom of religion, a freedom which the Awami League respected. Even so, the Minister noted that “while the government has reportedly failed at times to denounce, investigate or prosecute the Islamic extremist attacks on religious minorities and women, there is no indication that it is totally powerless to stop those violations of other people’s rights. The current government can still be said to be capable of offering persons like the applicant effective protection against the religious fundamentalists“.

The Migration Act 1958 (Cth) allows for a merits review of the decision made by the Minister. After the Mr. Ruddock’s rejection of protection visa application, Miah obtained the services of a firm of solicitors in order to pursue the merits review (de novo review). Some time in early 1997, the solicitors for Miah inadvertently misplaced the completed merits review application form. It was subsequently found on 7 July 1997, however by then Miah was time-barred from lodging the form. He then made two separate applications to the Minister for permission to lodge a fresh protection visa application under section 48B of the Migration Act. Both of his requests were refused by Mr. Ruddock.

Natural Justice

This case was primarily concerned with the provision of natural justice under the ‘Hearing Rule’, i.e. that natural justice should be afforded in all Hearings. Natural justice refers not only to the ‘Hearing Rule’ but also the ‘Rule against Bias’ and requires fairness throughout the judicial process. The rationale for the provision of natural justice under the ‘Hearing Rule’ is two-fold:-

1. It gives the person affected by the administrative division (in the present case, Miah) the right to be heard and therefore generally leads to a better decision.

2. It also has a psychological element. The provision of natural justice leads to a greater acceptance of adverse decisions.

Prior to 1985 natural justice was only available when the administrative decision affected a right, i.e. in a direct way (Kioa v West (1985) 159 CLR 550). However, in Kioa v West (1985), Mason J followed United Kingdom suit holding that the Australian common law has evolved to the extent that there now exists a common law duty to act in accordance with procedural fairness. He went on to say that where an adverse administrative decision is made against an individual, that individual must be given the right to respond  to the decision maker and provide an explanation. Brennan J held that natural justice is derived from statutory construction and that where a decision affects someone’s interests and in a way that substantially singles them out, that exercise of administrative power is conditioned upon natural justice. Thus, where the legislature is silent, there is a very strong assumption that the Court will read natural justice into the legislation.

Political Backdrop

The Migration Act 1958 (Cth) is a statutory labyrinth boasting upwards of 500 sections. Inserted into this Act is “Subdivision AB – Code of Procedure for Dealing Fairly, Efficiently and Quickly with Visa Applications”. Enumerated within this subdivisions are sections 51A – 64 (of which 51A was not enshrined until 2002 – discussed later). Of particular importance is section 54(3) which provides as follows:-

‘The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

            (2)  For the purposes of subsection (1), information is in an application if the information is:

                     (a)  set out in the application; or

                     (b)  in a document attached to the application when it is made; or

                     (c)  given under section 55.

           (3)  Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.‘

Clearly, subsection (3) operates in direct contradiction with the natural justice ‘Hearing Rule’. The other sections enumerated under the “Code” also appear to displace natural justice in direct contradiction of the High Court’s decision in Kioa v West (1985). The High Court in this instance was therefore required to asses whether or not natural justice had been excluded by the ordinary words of the statute, amongst other relevant factors.

Held:

A majority of the High Court of Australia held in favour of Miah. They held (at [125]) that ‘the delegate (the Minister) breached the rules of natural justice by failing to offer him an opportunity to respond to new material critical to adverse findings against his application.’

With respect to the ‘Code’ they went on to say (at [126]) that ‘It is now settled that when a statute confers on a public official the power to do something which affects a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power “unless they are excluded by plain words of necessary intendment”. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”.’

The denial of natural justice constitutes a ‘jurisdictional error’ under section 75(v) of the Commonwealth of Australia Constitution 1901. Miah was therefore entitled to discretionary relief and was awarded an order nisi with absolute costs. He was awarded with all constitutional writs of prohibition, mandamus and certiorari.

Post Miah: 

After the High Court’s decision in Miah, the executive under the ‘Migration Legislation Amendment (Procedural Fairness) Bill 2002’ (only one year after Miah), enacted section 51A into Subdivision AB of the Migration Act 1958 (Cth). This section effectively is headed “Exhaustive Statement of Natural Justice Hearing Rule” and reads as follows:-

‘(1)  This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)  Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

This is evidentiary of the Howard Government unbinding itself from the High Court precedent established in Miah. The enactment of this section enables the Government to circumvent the High Court’s stringent view on the requirement of natural justice and, in particular, the Hearing rule. In any event, the High Court will not bow down to the rogue Government, instead, the Courts must look for craftier and more inventive avenues of judicial interpretation to invalidate the Government’s self-promoting agendas.

Aid/Watch – Charitable Trusts with a ‘Political Purpose’

The landmark decision of the High Court of Australia in Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539 distinguished itself from the rigors of stringent United Kingdom precedent in holding that Aid/Watch was a charitable trust.

Before this decision, charities or organisations which possessed a political agenda or ‘political purpose’, including the lobbying of foreign governments for law reform or budget reform, did not fall within the ambit of the ‘charitable trust’ for the purposes of trusts law in Australia (and indeed the United Kingdom and the United States of America).

The restrictive principle was adopted in Bowman v Secular Society [1917] AC 406 and is often referred to as the “Bowman Principle”. This Bowman Principle was put to test in McGovern v Attorney-General [1982] Ch 321 where it was held by Slade J that human rights organisation Amnesty International was not a charitable trust due to its ‘political purpose’. In his ratio, Slade J noted the main reasons for retention of this principle as follows:-

1. Preservation of the status quo.

2. Inability to assess whether the proposed change is for the public benefit (a requirement of a charitable trust).

3. Potential usurpation of the legislature’s role and function – it is not up to the Court to determine whether or not the laws are sufficient or insufficient. Otherwise, it may lead to an encroachment of the role of the legislature.

A majority of the High Court of Australia (French CJ, Hayne, Crennan and Bell JJ) rejected this archaic principle and has since held that Aid/Watch is indeed a ‘charitable trust’ despite its ‘political purpose’. The majority noted at [44-5] that:-

‘In Australia, the foundation of the “coherent system of law” of which Dixon J spoke in Royal North Shore Hospital v Attorney-General (1938) 60 CLR 396 is supplied by the Constitution.  The provisions of the Constitution mandate a system of representative and responsible government … and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors.  Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is an ‘indispensible incident’ of that constitutional system.  …The system of law which applies in Australia thus postulates for its operation agitation. It is the operation of these constitutional processes which contributes to the public welfare. A court administering a charitable trust for that purpose is not called upon to adjudicate the merits of any particular course of legislative or executive action …’

The actions of Aid/Watch were held to contribute to public welfare and were indeed for the benefit of the public and even if the Aid/Watch did employ political tactics in its operations as a charity to benefit the public, it did not fall within the ambit of an exclusion of ‘political objects’.

In dissent, Heydon and Kiefel JJ held that the purposes of Aid/Watch were not aimed at the promotion of public welfare and rather Aid/Watch’s own views. Commentators have suggested that the majority view is slightly skewed by conferring a tax exempt status on a charitable trust such as Aid/Watch even though the tactics employed may not actually benefit the public.

In any event, this comes as a welcome decision for Aid/Watch and other charitable purpose trusts as long as the organisation’s primary objective is charitable and for the benefit of the public.

The looming carbon tax; is it unconstitutional?

Below is an interesting article which suggests that the Gillard government’s carbon tax (due to take effect from 1 July 2012 in Australia) is unconstitutional on the grounds that the Commonwealth cannot tax State property. What is your opinion? Is carbon dioxide emissions really State property? Or are we splitting hairs here? Feel free to comment.

http://www.theage.com.au/opinion/political-news/carbon-tax-is-unconstitutional-says-tax-expert-20120410-1wlqh.html