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De Bruyn v. Victorian Institute of Forensic Mental Health [Australia] [March 22, 2016]
A patient at an Australian mental health facility sued to block implementation of the facility’s smoke-free policy. The court upheld the smoke-free policy because: (1) it was within the authority of the mental health hospital to adopt the policy; (2) the state tobacco control law did not create a right to smoke in mental health hospitals; and (3) the hospital properly considered the impact that the policy might have on the patient’s human rights, such as the right to dignity. In particular, the court found that the hospital gathered extensive input on policy over a four-year period and that the policy would be implemented along with psychological and other support systems, including nicotine replacement therapy and cessation counseling.
Philip Morris Asia v Australia [Australia] [December 17, 2015]
Philip Morris Asia challenged Australia's tobacco plain packaging legislation under a 1993 Bilateral Investment Treaty between Australia and Hong Kong. This was the first investor-state dispute brought against Australia.
Philip Morris Asia initiated the arbitration in November 2011, immediately after the legislation was adopted. Australia responded with jurisdictional objections and sought a preliminary ruling on these issues. The tribunal bifurcated the proceedings and on 18 December 2015 issued a unanimous decision agreeing with Australia's position that the tribunal had no jurisdiction to hear the claim.
The main objection to jurisdiction was that at the time the dispute arose, Philip Morris Asia was not a foreign investor in Australia. The government announced its decision to proceed with plain packaging legislation in April 2010. At that time, 100% of the shares in Philip Morris Asia were owned by the parent company located in Switzerland (which had no investment treaty with Australia). Philip Morris International then undertook a restructure in 2011 which meant that Philip Morris Asia, located in Hong Kong, became the sole owner of the shares in the Australian subsidiaries.
The Tribunal found that Claimant’s restructure was for the principal, if not the sole, purpose of gaining protection under the Treaty so as to bring a claim against the plain packaging legislation. As such Philip Morris Asia's claim was an 'abuse of rights'. This concluded the arbitration in Australia's favour, subject to finalisation of the costs claim.
Bhandari v. Laming [Australia] [October 16, 2015]
A landlord was ordered to pay compensation to his tenant (a percentage of the rent and moving costs) for breaching a rental agreement. The tenant moved out due to an ongoing issue of smoke drifting from a downstairs apartment. The appeals panel which heard the case agreed there was a structural ventilation problem with the building which allowed smoke to flow into the apartment, making it unfit for habitation. Although the landlord was not responsible for the drifting smoke, the panel agreed that he was nevertheless responsible for providing a unit fit for habitation and dismissed the landlord’s appeal.
Australia - Plain Packaging Requirement Applicable to Tobacco Products and Packaging [Australia] [October 27, 2014]
Information about this decision coming soon.
Maclean and District Bowling Club Co-operative v. Green [Australia] [August 14, 2014]
The respondent in this appeal, Ms Green, contracted lung cancer as a result of exposure to environmental tobacco smoke in the workplace and her own tobacco use. She was exposed to passive smoking in the workplace for a period of about 26 years until she was diagnosed with lung cancer in 2002, and smoked somewhere between 10-50 cigarettes a day for a period of 17 years up to 1992. She was successful in her claim for workers compensation before an Arbtitrator, who found that (among other things) exposure to smoke in the workplace was a substantially contributing factor to the contraction of her disease. This was an appeal from that decision.
The respondent insurer alleged that (1) there was insufficient evidence before the Arbitrator to conclude that exposure to passive smoking in the workplace substantially contributed to Ms Green's disease; and (2) the Arbitrator gave insufficient reasons for his decision.
In this decision, Deputy President Roche found that there was sufficient evidence for the Arbitrator to conclude that Ms Green's employment was a substantial contributing factor to her injury. However, Deputy President Roche agreed with the appellant that the Arbitrator gave insufficient reasons for his decision, and therefore remitted the matter to a different Arbitrator for re-determination.
Hawkins v. Van Heerden [Australia] [June 24, 2014]
The defendant was previously convicted of selling products designed to resemble a tobacco product in breach of s106(a) of the Tobacco Products Control Act 2006 (WA). The defendant had been selling e-cigarettes and nicotine-free 'e-Juice'. (See: Hawkins v Van Heerden  WASC 127 (10 April 2014)).
In this decision, the Supreme Court imposed a fine of $1,750 for the offence and ordered the defendant to pay the costs of the trial and the appeal. In doing so, Pritchard J observed that it was not necessary to decide whether e-cigarettes were harmful to their users, because whether or not the product sold was harmful to human health was not an element of the offence under s106 of the Act. Rather, the purpose of s106 is to discourage the promotion of tobacco products and smoking by banning the sale of products which resemble tobacco products and contribute to normalising the activity of smoking.
Philip Morris Asia Limited v. Commonwealth of Australia (Procedural Order No.8) [Australia] [April 14, 2014]
Philip Morris Asia (PMA) commenced arbitral proceedings against Australia in relation to Australia's Tobacco Plain Packaging Act and associated regulations, pursuant to the Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (the Treaty). An ad hoc Tribunal has been established to adjudicate the dispute, with its registry in the Permanent Court of Arbitration. For background on the case and earlier Procedural Orders, see related case: Philip Morris Asia Limited v. Commonwealth of Australia (Procedural Order No.4).
In this decision, the Tribunal ruled on Australia's request to have the proceedings bifurcated between arguments on jurisdiction and arguments on the merits. PMA objected to the hearing being bifurcated, primarily on the grounds that the issues to be decided significantly overlap and that Australia's jurisdictional arguments are not substantial.
Australia alleges that the Tribunal has no jurisdiction to hear the dispute on 3 grounds, as follows.
1) First, Australia alleges that PMA's "investment" in Australia was not admitted in accordance with the Treaty because PMA's Statutory Notice under Australia's foreign investment rules contained false and misleading assertions as to the purpose of the investment. Australia alleges that PMA's true purpose, which should have been stated on the Statutory Notice, was to place itself in a position where it could bring this claim under the Treaty.
2) Secondly, Australia alleges that PMA's claim falls outside the Treaty because it relates to a pre-existing dispute; or, alternatively, that it amounts to an abuse of right because PMA re-structured its investments with the express purpose of bringing this claim, after the Australian Government had announced its intention to implement plain packaging.
3) Thirdly, Australia alleges that PMA's assets - being only its shares in PML and PM Australia - do not constitute "investments" under the Treaty because PML and PM Australia's investments do not themselves enjoy the protections of the Treaty (not being investments in Hong Kong).
In this Order, the Tribunal ruled that Australia's first and second jurisdictional arguments should be bifurcated and heard first, but that the third argument should be joined with the merits of the dispute. The Tribunal reasoned that if Australia wins on either of the first or second arguments, it would dispose of the entire proceeding, whereas Australia winning the third argument would not be dispositive.
The Tribunal subsequently set down the hearing on jurisdiction for February 16, 2015 (see Procedural Order No.9, uploaded here under "Related Documents").
Hawkins v. Van Heerden [Australia] [April 10, 2014]
The operator of a website selling electronic cigarettes (e-cigarettes) was convicted of violating the Tobacco Products Control Act 2006 (WA) by selling a product that is “designed to resemble a tobacco product.” The Supreme Court overturned an earlier ruling by a lower court, which had acquitted the seller.
The Supreme Court found that the e-cigarettes, which contained only “e-juice” and no nicotine, resembled a tobacco product because they are used for inhaling vapour, which is exhaled in a manner similar to smoke from a cigarette.
See further the sentencing judgment: Hawkins v. Van Heerden [No 2]  WASC 226 (24 June 2014).
Sheath v. Whitely [Australia] [April 08, 2014]
The parties to this dispute were neighbours in adjoining town-houses, both part of a relevant Strata Scheme. The applicants alleged that the respondents regularly and continually sat outside in their courtyard and smoked, and that the exhaled smoke drifted into their courtyard and home. The applicants, who were father and daughter, suffered from bronchitis and asthma (respectively). They alleged that the respondents' conduct was in breach of s117 of the Strata Schemes Management Act 1996 (NSW), which prohibits an occupier of a lot to use or enjoy the lot in such a manner as to cause a nuisance or hazard to the occupier of any other lot.
Senior Member Buckley noted that there is no scientific or medical dispute that the inhalation of second-hand smoke can cause an increased risk of adverse health effects. The Tribunal member found that the risk of exacerbation of respiratory symptoms was a "hazard" within the meaning of s117 of the Strata Schemes Management Act, and ordered that the respondents were not to smoke or allow others to smoke within 4 metres of the boundary of the applicants' dwelling.
Channel Seven Adelaide Pty Limited v. Australian Communications and Media Authority [Australia] [March 21, 2014]
This case relates to a decision by the Australian Communications and Media Authority (ACMA) that Channel Seven breached a condition of its licence by broadcasting a tobacco advertisement in contravention of s13 of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act).
On 18 July 2010 Channel Seven broadcast a segment on its evening news program entitled "Cheap Cigarette Imports", relating to the importation from Germany and sales by Coles supermarkets of budget brand cigarettes. The segment reported that Coles was selling the imported cigarettes cheaper than the local equivalent products. It included visual images of people smoking, audible and visual messages about tobacco products, and visual images of brands.
The ACMA decided that the segment was a "tobacco advertisement" and that it gave publicity to and promoted tobacco products in contravention of the TAP Act. The ACMA found that the fault element of intention was present in the broadcast.
Channel Seven appealed the ACMA's decision to the Federal Court. At first instance, the Federal Court upheld the ACMA's decision and dismissed Channel Seven's application. This is the appeal from that decision.
In this decision, the Full Court of the Federal Court allowed Channel Seven's appeal and set aside the ACMA's decision that the segment constituted a "tobacco advertisement". The Court decided that the fault element of intention was not present in the broadcast.
For the earlier decision, see: Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority  FCA 812 (14 August 2013).