THE tobacco industry will take its fight over plain packaging to the Federal Court, after a tribunal affirmed the government’s right to withhold the secret legal advice authorising the plan.
British American Tobacco has confirmed to The Australian it will appeal against an Administrative Appeals Tribunal ruling refusing the company access to the Keating-era document on the grounds of legal professional and parliamentary privilege.
Under the plan, unveiled by federal Health Minister Nicola Roxon on Thursday, all cigarette packets will be olive-coloured and emblazoned with confronting images of diseased organs.
The secret advice, prepared by the Attorney-General’s Department in 1995, details the government’s constitutional powers to implement plain packaging, and canvasses possible legal hurdles such as international trade rules and intellectual property rights.
British American Tobacco Australia and Philip Morris last year requested access to the document using Freedom of Information laws, but were rebuffed by the Department of Health and Ageing. The companies dragged the department to the tribunal in November, but were defeated last week.
BATA spokesman Ian McIntyre said: “Given the government is continuing to try to hide this advice, unfortunately BATA has little choice but to appeal this decision (to the Federal Court).”
Successive governments have kept the document a closely guarded secret, sharing it only with their hand-picked tobacco advisory groups. The only public record of the document is a one-paragraph summary provided by the Howard government to the Senate in 1997.
Arguing their case before the tribunal in November, the tobacco companies claimed the governments had waived their legal professional privilege by sharing the document with advisory groups.
The tribunal disagreed, with senior member Francis O’Loughlin concluding that the advisers “would have been obliged to observe and maintain the confidential nature of the advice”.
The tribunal also found the advice was protected by the Parliamentary Privilege Act, since the 1997 summary formed part of “proceedings in parliament”.
The Keating government rejected plain packaging in 1995, saying it would require an “unfeasible” buy-up of the tobacco companies’ trademarks.
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