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Wednesday, April 20, 2011

Tobacco companies request for government legal advice on packaging sent packing

WikiCommons Media
Along with the war of words and threatened court action by the industry in recent weeks following release of the draft plain packaging for cigarettes bill, came this related Administrative Appeals Tribunal decision by Deputy President Forgie and Senior Member O'Loughlin concerning  a Freedom of Information application by Philip Morris and British Tobacco for advice obtained by the Health department from Attorney General's in 1995 on "the legal and constitutional barriers to generic packaging."

The Tribunal upheld the agency decision to refuse access on legal professional privilege grounds, importantly concluding no waiver of privilege had resulted from the circulation of summaries of the advice in years past to members of two working parties of government and private sector members.

Jared Owens writing about the decision in The Australian said "(t)he tribunal also found the advice was protected by the Parliamentary Privilege (sic) Act, since the 1997 summary formed part of "proceedings in parliament." This seemed to suggest that the PPA provided other grounds for refusal of access.That's not exactly what the Tribunal decided.

The Tribunal found that the Government Response to a Senate committee report, tabled in Parliament and incorporated in Hansard that included a short summary of the advice came within the description of “proceedings in Parliament” in s 16 of the PPA. Section 16(3) prohibits evidence in a court or tribunal concerning proceedings in Parliament in certain circumstances including for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings. The Tribunal ruled this precluded consideration of whether information about the advice in the Government Response to a Senate committee report in 1997 constituted a waiver of legal professional privilege. The reason was that this would require drawing an inference or conclusion that a judgment was made at the time to behave inconsistently with the confidentiality expected when seeking to maintain the privilege.(See DP Forgie at [194-196] and SM O'Loughlin at [214-219]).

This is the contentious reference in the “Government Response to the Report of the Senate Community Affairs Reference Committee: The Tobacco Industry and the Costs of Tobacco-Related Illness” dated September 1997 [38] that the Tribunal decided could not be considered in the context of whether privilege had been waived :
“In response to the mounting interest in generic packaging, the Commonwealth obtained advice from the Attorney-General’s Department on the legal and constitutional barriers to generic packaging. This advice indicates that the Commonwealth does possess powers under the Constitution to introduce such packaging but that any attempt to use these powers to introduce further tobacco control legislation needs to be considered in the context of the increasingly critical attention being focussed on the necessity, appropriateness, justification and basis for regulation by such bodies as the Office of Regulatory Review, the High Court, and the Senate Standing Committees. In addition, further regulation needs to be considered in the context of Australia’s international obligations regarding free trade under the General Agreement on Tariff and Trade (GATT), and our obligations under international covenants such as the Paris Convention for the Protection of Industrial Property, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). To date, generic packaging of tobacco products has not been implemented anywhere in the world. As such, there is no international experience of the effect of generic packaging on consumer behaviour. In addition, there is limited primary research on the potential effect of generic packaging on the factors underlying or relevant to the uptake and cessation of tobacco consumption.”

In her decision Deputy President Forgie as usual leaves no word or phrase in the law or any relevant precedent unexamined. This decision includes a summary of steps since 1994 to examine the policy option of generic packaging [22-39], the law on legal privilege [40-68] and  issues arising from the Parliamentary Privileges Act [79-178], matters to be resolved in deciding whether privilege has been waived [179-193] and the limitations on the relevance of material in the Government Response [194-196], before her conclusion that privilege had not been waived through circulation of summaries of the advice in other contexts [197-202]. Senior Member O'Loughlin was the model of brevity in agreeing to all that and giving his own reasons in a sparse 16 paragraphs [204-220.]

The case concerns the FOI act as it was before 1 November 2010. A change from that date to s 42 explicitly excluded from the privilege exemption any document for which privilege has been waived. Deputy President Forgie considered the change [41-44], concluding that the amendment enshrines the interpretation of the section already adopted by the Federal Court and binding upon the Tribunal.

Owens reported the applicants are now off to the Federal Court. I'd expect the issues concerning waiver will be at the heart of this, particularly the Tribunal's decision to exclude consideration of the inclusion of details of the advice in the Government Response to the committee report. If the applicants can get beyond the hurdle of s 16, the next question will be whether what is contained in the public record constitutes waiver.

Update on a related matter.

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