The High Court of Australia and the Marlboro Man: The Battle Over the Plain Packaging of Tobacco Products

In 2012, the High Court of Australia handed down a landmark decision on the plain packaging of tobacco products. This chapter considers the historic ruling in the case of JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth. This chapter explores several themes in the decision. First, it highlights the historical work by the High Court of Australia on the role of health regulation, the use of health warnings, and tobacco control. Second, the chapter considers the High Court of Australia's view that intellectual property law promotes the public interest.Third, it explores the High Court of Australia’s analysis of the constitutional law on acquisition of property on just terms. Finally, this chapter contends that the High Court of Australia's ruling on plain packaging of tobacco products will spark an 'Olive Revolution' — and will encourage superior courts and policy-makers to follow suit.

Who won the argument over plain packaging?

Government and tobacco companies recently faced off in Australia's High Court over the legality of plain packaging for cigarettes. Stephen Stern and Matthew Rimmer give their contrasting views on the arguments and implications

In search of good probability assessors: An experimental comparison of elicitation rules for confidence judgments

In this paper, we use an experimental design to compare the performance of elicitation rules for subjective beliefs. Contrary to previous works in which elicited beliefs are compared to an objective benchmark, we consider a purely subjective belief framework (confidence in one’s own performance in a cognitive task and a perceptual task). The performance of different elicitation rules is assessed according to the accuracy of stated beliefs in predicting success. We measure this accuracy using two main factors: calibration and discrimination. For each of them, we propose two statistical indexes and we compare the rules’ performances for each measurement. The matching probability method provides more accurate beliefs in terms of discrimination, while the quadratic scoring rule reduces overconfidence and the free rule, a simple rule with no incentives, which succeeds in eliciting accurate beliefs. Nevertheless, the matching probability appears to be the best mechanism for eliciting beliefs due to its performances in terms of calibration and discrimination, but also its ability to elicit consistent beliefs across measures and across tasks, as well as its empirical and theoretical properties.

Scoring rules and abnormally low bids criteria in construction tenders: A taxonomic review

In the global construction context, the Best Value or Most Economically Advantageous Tender is becoming a widespread approach for contractor selection, as an alternative to other traditional awarding criteria such as the Lowest Price. In these multi-attribute tenders, the owner or auctioneer solicits proposals containing both a price bid and additional technical features. Once the proposals are received, each bidder's price bid is given an economic score according to a scoring rule, generally called an Economic Scoring Formula (ESF) and a technical score according to pre-specified criteria. Eventually, the contract is awarded to the bidder with the highest weighted overall score (economic + technical). However, Economic Scoring Formula selection by auctioneers is invariably and paradoxically a highly intuitive process in practice, involving few theoretical or empirical considerations, despite having being considered traditionally and mistakenly as objective, due to its mathematical nature. This paper provides a taxonomic classification of a wide variety of ESF and Abnormally Low Bid Criteria (ALBC) gathered in several countries with different tendering approaches. Practical implications concern the optimal design of price scoring rules in construction contract tenders, as well as future analyses of the effects of ESF and ALBC on competitive bidding behaviour.

Fire design rules for load bearing cold-formed steel frame walls exposed to realistic design fire curves

Light gauge Steel Frame (LSF) walls are extensively used in the building industry due to the many advantages they provide over other wall systems. Although LSF walls have been used widely, fire design of LSF walls is based on approximate prescriptive methods based on limited fire tests. Also these fire tests were conducted using the standard fire curve [1] and the applicability of available design rules to realistic design fire curves has not been verified. This paper investigates the accuracy of existing fire design rules in the current cold-formed steel standards and the modifications proposed by previous researchers. Of these the recently developed design rules by Gunalan and Mahendran [2] based on Eurocode 3 Part 1.3 [3] and AS/NZS 4600 [4] for standard fire exposure [1] were investigated in detail to determine their applicability to predict the axial compression strengths and fire resistance ratings of LSF walls exposed to realistic design fire curves. This paper also presents the fire performance results of LSF walls exposed to a range of realistic fire curves obtained using a finite element analysis based parametric study. The results from the parametric study were used to develop a simplified design method based on the critical hot flange temperature to predict the fire resistance ratings of LSF walls exposed to realistic fire curves. Finally, the stud failure times (fire resistance rating) obtained from the fire design rules and the simplified design method were compared with parametric study results for LSF walls lined with single and double plasterboards, and externally insulated with rock fibres under realistic fire curves.

The case for the plain packaging of tobacco products

AIMS: The Framework Convention on Tobacco Control (FCTC) requires nations that have ratified the convention to ban all tobacco advertising and promotion. In the face of these restrictions, tobacco packaging has become the key promotional vehicle for the tobacco industry to interest smokers and potential smokers in tobacco products. This paper reviews available research into the probable impact of mandatory plain packaging and internal tobacco industry statements about the importance of packs as promotional vehicles. It critiques legal objections raised by the industry about plain packaging violating laws and international trade agreements. METHODS: Searches for available evidence were conducted within the internal tobacco industry documents through the online document archives; tobacco industry trade publications; research literature through the Medline and Business Source Premier databases; and grey literature including government documents, research reports and non-governmental organization papers via the Google internet search engine. RESULTS: Plain packaging of all tobacco products would remove a key remaining means for the industry to promote its products to billions of the world's smokers and future smokers. Governments have required large surface areas of tobacco packs to be used exclusively for health warnings without legal impediment or need to compensate tobacco companies. CONCLUSIONS: Requiring plain packaging is consistent with the intention to ban all tobacco promotions. There is no impediment in the FCTC to interpreting tobacco advertising and promotion to include tobacco packs.

Global rules on conflict-of-laws matters in international insolvency law cases: An Australian perspective

The 2012 Report “Transnational Insolvency: Global Principles for Co-operation in International Insolvency Cases” – commissioned by The American Law Institute in conjunction with The International Insolvency Institute – annexed 23 “Global Rules on Conflict-of-Laws Matters in International Insolvency Cases”. These proposed “Global Rules” are intended to “serve as legislative recommendations” to (inter alia) promote uniformity and greater certainty in the unpredictable area of conflict of laws. This article provides a brief commentary upon the 23 proposed Global Rules from an Australian perspective (comparing the effect and intent of each rule with the current Australian conflict-of-laws position) and offers some conclusions as to the merits of the “Global Rules” initiative.

Big tobacco's box fetish: Plain packaging at the High Court

Tobacco, says the World Health Organisation (WHO), is “the only legal consumer product that kills when used exactly as intended by the manufacturer.”

The High Court and the Marlboro Man: The plain packaging decision

The High Court of Australia’s ruling on the plain packaging of tobacco products is one of the great constitutional cases of our age. The ruling will resonate throughout the world - as other countries will undoubtedly seek to emulate Australia’s plain packaging regime.

The olive revolution: Australia's plain packaging leads the world

After much political debate, the Australian Parliament passed the Tobacco Plain Packaging Act 2011 (Cth). Australian legislators, such as Richard di Natale, provided moving accounts for the need for plain packaging of tobacco products.

Cigarettes will kill you: The High Court of Australia and the plain packaging of tobacco products

Tobacco, says the World Health Organization (WHO), is “the only legal consumer product that kills when used exactly as intended by the manufacturer.” With a view to discouraging smoking and giving effect to the WHO Framework Convention on Tobacco Control, the Australian Parliament passed the Tobacco Plain Packaging Act 2011 (Cth), in November of that year. The legislation was supported by all the major political parties.

Ireland, plain packaging, and the olive revolution

A world leader in public health, Australia introduced plain packaging of tobacco products. Julia Gillard – the Prime Minister of Australia at the time responsible for plain packaging – has observed: “Since 1 December 2012, cigarettes packets in Australia do not sparkle with gold or silver and do not have any other way to catch and please the eye. They’re a uniform drab colour, with most of the box taken up with the most graphic health warnings. Gruesome pictures of disease perhaps better described as real pictures of the ugly truth.”

New Zealand, plain packaging, and the Trans-Pacific Partnership

The New Zealand Parliament is considering the adoption of plain packaging of tobacco products with the introduction of the Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill 2014 (NZ). There has been strong support for the measure amongst the major parties – including the National Party; the Maori Party; the Labor Party; and the Greens. The New Zealand parliamentary debate has considered matters of public health and tobacco control; the role of intellectual property law; and the operation of international trade and investment law.