Tobacco company packaging appeal fails

17 Aug 2012, 4:54 pm   -   Source: AAP
British American Tobacco has lost a FoI bid for access to privileged parliamentary documents. (AAP)

British American Tobacco has lost a FoI bid for access to privileged parliamentary documents. (AAP)

British American Tobacco has suffered a second High Court loss with the failure of its bid to see 17-year-old legal advice on plain packaging.

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Big tobacco's second High Court loss in a week means it's run out of puff in the fight against new plain packaging laws, the government and anti-smoking lobbyists say.

British American Tobacco Australia was refused leave on Friday to appeal to the court over its long-running bid to access privileged 1995 Commonwealth documents about plain packaging, under Freedom of Information laws.

It comes after Wednesday's High Court ruling against tobacco companies' claim that the legislation, which is now cleared to take effect from December, is unconstitutional.

British American Tobacco fought for more than two years to get a copy of a memo from the attorney-general's office to the health department outlining legal and constitutional issues involved with the world-first legislation.

It argued the advice should not be exempt from FoI requests under parliamentary privilege, because it had been disclosed to governmental advisory groups and referred to in a 1997 government response paper tabled in the Senate.

Michael Wheelahan SC, for British American Tobacco, said the company wanted to "correct errors of principle concerned with waiving privilege" made by the Administrative Appeals Tribunal in refusing a copy of the advice.

Peter Hanks QC, for the health department, said the appeal was inappropriate as the company was trying to "third-guess the tribunal on a question of fact".

High Court Justices William Gummow, Kenneth Hayne and Susan Crennan refused leave to appeal, saying there was insufficient doubt about the privilege laws to warrant a full hearing.

A spokesman for Health Minister Tanya Plibersek said it was time tobacco companies dropped their costly legal action and accepted plain packaging was inevitable.

"Big tobacco has again been foiled in its attempts to tie up taxpayers' money in wasteful and spurious litigation, rather than accepting the government's legitimate right to pursue policies that protect Australians' health," the spokesman said in a statement.

"It's time for the tobacco companies to get on with implementation of the government's plain packaging legislation and to stop trying to challenge this measure in the courts."

Quit Victoria policy manager Kylie Lindorff says Friday's decision is the "icing on the cake" in guaranteeing plain packaging.

"Big tobacco has no other avenues left," she said in a statement.

British American Tobacco Australia was ordered to pay the Commonwealth's legal costs.

Comment was sought from the company.

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