Cigarette makers use FOI laws

Australia - TAXPAYERS are footing the bill for a multi-million-dollar campaign by tobacco companies to extract Health Department information for a looming court challenge to plain packaging on cigarette packets.

The Australian has learnt that Philip Morris and British American Tobacco Australia are using Freedom of Information laws to obtain tens of thousands of documents, while avoiding the more expensive legal discovery process.

It is understood that at least 26 large-scale FOI requests have been lodged by the tobacco companies.

The Department of Health has had to assign nine legally trained staff to work full-time on the tobacco requests, including six new employees.

The bill for one request alone came in at more than $367,000, after being negotiated down from an initial estimate of $1.4 million.

Under FOI legislation, departments charge $15 to $20 an hour for decision-making and consultation. Photocopies cost 10c a page. However, obtaining documents under discovery rules requires lawyers at $300-plus an hour, with copies charged at $2.10 a page.

Obtaining documents through FOI also means they can be used for a variety of purposes, while information obtained through legal discovery can only be used once.

Thousands of pages have been released, but the companies have been denied a key document on the grounds of legal privilege.

The secret advice, prepared by the Attorney-General’s Department in 1995, details the government’s constitutional powers to implement plain cigarette packaging. It also canvasses possible legal hurdles such as international trade rules and intellectual property rights.

The Administrative Appeals Tribunal recently upheld the department’s decision to withhold the document, and BATA has flagged an appeal to the Federal Court.

BATA yesterday began dribbling out documents obtained through FOI, releasing a briefing note from last April from the government’s intellectual property rights administrator, IP Australia.

The briefing says plain packaging could impinge on tobacco industry trademarks. But it says such restrictions could be introduced “if there is a clear public interest to be served”.

“Notably, analysis of the public interest’s need should be based on strong empirical evidence,” the briefing note states.

BATA spokesman Scott McIntyre said the government had failed to prove a public interest case.

“The Health Minister is yet to reveal any real proof that plain packaging will reduce smoking rates and she has continually refused to release any legal advice which actually supports the untested legislation,” he said.

Nicola Roxon, who unveiled the proposed olive-coloured packs earlier this month, said the research showed branding and packaging design could counteract health warnings and increase cigarettes’ appeal to young people.

The Health Minister said the government was prepared for a long legal fight. “This is the beginning of a large and co-ordinated campaign by Big Tobacco,” she said. “We are not going to back away from this fight.”

Slater & Gordon lawyer James Higgins said the information-gathering exercise was ironic, given the tobacco companies destroyed their own internal documents to avoid liability for the effects of their products.

He said the companies would stop at nothing to prevent plain packaging in Australia, fearing an international precedent that would affect global profits.

One tactic included briefing lawyers - even those they would not use - to prevent them being engaged by the government.

“They will use every tactic that is available to them,” he said.

By Ben Packham

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