Chapter 14: Tobacco control in Australia: the High Court challenge to plain packaging
The unsuccessful challenge to the tobacco plain packaging legislation (the TPP) based on the Australian Constitution obviously demonstrates the compliance of the TPP with Australian domestic law. In that sense, the effects of the decision are confined to Australia. However, a further and related issue is the extent to which a number of issues addressed in the course of the constitutional case affect international legal challenges to Australia’s plain packaging legislation. This chapter considers the decision of the High Court of Australia (Australia’s highest court) and relevant pleadings and arguments put to the High Court. In doing so, it analyses the potential impact of various aspects of the litigation on the arbitration proceedings between Australia and Philip Morris Asia Limited (PMA). At the outset, it should be recognised that there are some difficulties associated with identifying the precise impact of the decision. The seven High Court justices wrote six different judgments, none of which referred directly to any of the other judgments. The six justices in the majority wrote five separate judgments, with only Hayne and Bell JJ writing a joint judgment. As the case turned on a very specific provision of the Australian Constitution, a number of justices unsurprisingly focused on that provision and did not address some tangential issues in any great detail. However, some important propositions can be distilled from the judgments with considerable certainty, and some but not total elucidation of other relevant propositions has been provided.
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