THE Federal Court has struck a major blow to the big tobacco companies trying to stop plain packaging legislation, with a judgment today dismissing British American Tobacco’s attempts to gain secret government legal advice on the controversial measures.
British American Tobacco Australia (BATA) had appealed to the court to overturn previous decisions of the federal health department and the Administrative Appeals Tribunal which both blocked access to the legal advice.
The advice is 16 years old, written by the attorney-general’s department for the Keating government, but provides information about plain packaging in light of international free trade obligations.
Chief Justice Patrick Keane, with judges Garry Downes and Anthony Besanko, today ruled that legal professional privilege over the advice had not been waived, despite parts of it being published or referred to over the years.
“Disclosure of the gist of a privileged communication does not necessarily effect a waiver of legal professional privilege,” the judges said.
“There is no litigation on foot between the appellant and the respondents in which the AGD legal advice might conceivably be relevant.
“Even if it were the case that use in Parliamentary debate might provide an appropriate context for the question of inconsistency to arise, there is no basis on which the Tribunal or this Court might conclude that the government has sought, or will seek, to deploy a summary of the AGD legal advice to its advantage, or to the disadvantage of another party.”
The Gillard government has received bipartisan support for the plain packaging legislation which is due to come before parliament shortly.
The laws will ban logos and brand colours on cigarette packages, hindering tobacco company usage of their intellectual property in their trademarks.
By Pia Akerman