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An affront to the rule of law: international tribunals to decide on plain packaging

The Australian High Court has found that the Gillard Government’s Tobacco Plain Packaging Act 2011 does not breach that section of the constitution that prohibits federal legislation acquiring property…

A new off-shore phase of jurisprudence has the potential to undermine national authorities. Lukas Coch/AAP

The Australian High Court has found that the Gillard Government’s Tobacco Plain Packaging Act 2011 does not breach that section of the constitution that prohibits federal legislation acquiring property except on just terms. But the authority of the High Court may be challenged by international trade and investment processes that contest the rule of law not only in this country, but globally.

The federal plain packaging legislation was enacted in compliance with obligations under international law embodied in the World Health Organization’s (WHO) Framework Convention on Tobacco Control. In reaching its decision, the High Court was fulfilling the constitutional role allocated to it under a social contract entered into by the Australian people in 1901.

This compact has since been reinforced by acceptance and implementation of such decisions and the process behind them for over a century by Australian federal and state politicians, judges and the general populace. A central part of the contract is that Australia will be governed by a rule of law, with its implicit predictability and certainty.

Australian taxpayers (through their governments) have invested an enormous amount of time and resources in creating a system of governance predicated on the capacity of a non-corrupt judiciary to decide on disputes by fairly interpreting laws promulgated in advance in public.

jerik0ne/Flickr

Foreign corporations operating in Australia benefit from such an equitable governance structure. Indeed, it is one of the primary reasons they invest here. Australia regularly ranks very highly in rule of law rankings of nations around the world. And as legal scholar Brian Tamanaha reminds us in one of the seminal works on the subject, “No other single political ideal has ever achieved global endorsement.”

Yet Australia is about to confront, for the first time, the possibility that a decision of the highest court in our land will in effect be overturned by off-shore tribunals with only a tenuous connection to Australian legal traditions. Such off-shore investment tribunals are not accountable to the Australian populace and have extremely limited capacity to refer to governance arrangements directly endorsed by Australian citizens.

Unaccountable tribunals

On 13 March 2012, Ukraine requested consultations in the World Trade Organisation (WTO) with Australia concerning Australia’s Tobacco Plain Packaging Act 2011 and its implementation.

Ukraine’s argument is that Australia’s plain packaging legislation breaches various provision of the WTO Trade Related Intellectual Property (TRIPS) Agreement; the Technical Barriers to Trade (TBT) Agreement; and the General Agreement on Tariffs and Trade(GATT) 1994. Interestingly, there’s no mention of the WTO being required to take the WHO and its Framework Convention on Tobacco Control into account in this consultation.

The World Health Organisation (WHO) has not been offered a voice in the debate. US Mission Geneva/Flickr.

In another potential challenge, the multinational tobacco company Phillip Morris has re-badged itself for this purpose as an Asian company based in Hong Kong and lodged an investor-state complaint against the Australia under the Hong Kong-Australia Bilateral Investment Treaty (BIT).

Unlike the WTO dispute, this will not involve a standing body but will allow an ad hoc gathering of three trade arbitrators to rule (without the requirement of exhausting local remedies and without prospect of appeal) on whether Australia has to pay damages to this tobacco company for passing legislation found to be constitutional and a fulfilment of Australia’s international legal obligations under a WHO treaty.

Such disputes may only be the beginning of a new off-shore phase of jurisprudence with the potential to undermine the authority of the High Court and the rule of law in Australia.

Unaccountable arbitrators

Philip Morris International has lobbied the US Trade Representative (USTR) to include investor state dispute settlement in the Trans Pacific Partnership Agreement (TPPA). On 12 June 2012, a leaked copy of the investment chapter for the TPPA confirmed its provisions would allow foreign firms to skirt Australian domestic courts and laws to directly sue our government in the International Centre for the Settlement of Investment Disputes (ICSID).

Arbitrators would be paid by the hour (often over several years of proceedings), could act as a legal representative in one case and an arbitrator in another, and would have vested financial interests in verdicts for corporations. Governments cannot initiate suits before this tribunal.

They would not be required to take the constitutional, legislative or international human rights context (including standard legal due process procedures) into account, or maintain a public record of their decisions. All of this undermines their capacity to claim they are part of the rule of law.

The Australian High Court could have its role usurped. John O'Neill/Wikimedia Commons.

Defending the rule of law

The capacity of these three types of tribunals to potentially have the final say on such an important public health issue (as well as those likely to face future generations of Australians in areas such as environmental sustainability and financial sector stability) is a direct affront to the rule of law, not only in this country but globally.

The leaked TPPA text would even provide investors with a right to demand compensation for “indirect” expropriation (Article 12.12) and allow foreign investors to claim government actions (such as the plain packaging laws) require technically unlimited financial compensation because of a slightly higher burden in complying with the law (Article 12.4 and 12.5). Such proposals give foreign investors (such as tobacco multinationals) greater rights than domestic investors.

In its April 2011 trade policy statement, the Australian Government vowed to no longer include provisions on “investor-state dispute settlement” in bilateral and regional trade agreements that it signs. Australia deserves high praise for refusing to agree to a TPPA investor state provision. But it’s surprising that the various Australian law councils haven’t taken up the issue and supported the federal government’s stance in favour of preserving from such threats the rule of law in this country.

Join the conversation

46 Comments sorted by

  1. Lennert Veerman
    Lennert Veerman is a Friend of The Conversation.

    Senior Research Fellow, School of Population Health at University of Queensland

    Good article, and indeed surprising we don't hear more of developments like these. Australia at least has the lawyers and the muscle to resist these attempts of corporate global takeover. Many developing countries don't.

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  2. Bruce Moon

    Bystander!

    Thomas

    Thank you for articulating the extent - and potential impact - of the multinational capitalist reach into the domestic affairs of the nation state.

    While you argue that unaccountable tribunals have a capacity to "in effect" overturn the decision by the High Court, I was hoping to read how that would/could be achieved.

    I understand that as a signatory to the various conventions you cite, the Australian Government is obliged to implement a decision emanating from such bodies you describe…

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  3. Mark Amey

    logged in via Facebook

    Seems like a hell of a lot of expensive legal manipulation for an intervention that the pro-smoking fraternity claims 'just won't work'!

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  4. Mark A Gregory

    Senior Lecturer in Electrical and Computer Engineering at RMIT University

    Australian governments have signed off on international agreements for some time and failed to include an escape clause. It appears that sooner or later multi-nationals will find one or more of these agreements to support a position that effectively overturns decisions made in our courts. In England they have for the first time had convicted terrorists apply to have their convictions quashed by the European Court of Human Rights not based on a point of law but on a point of fact. Unfortunately, international agreements have a habit of either being ignored by larger countries or multi-nationals or modified when it suits large countries and multi-nationals. Australia needs to be wary and ensure there are escape clauses in any external agreement we sign up for.

    If the tobacco companies find a way to effectively win this fight then the government needs to be prepared to immediately walk away from the international agreement and re-negotiate the agreement without the offending clause.

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  5. David Arthur

    resistance gnome

    Wasn't it the multi-national corporations who drafted the rules of these international trading organisations?

    It's a situation akin to burglars setting themselves up as locksmiths.

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  6. Anthony Nolan

    logged in via email @hotmail.com

    International treaties have their place. Without world heritage listing the Franklin would have been drowned, trade in protected species would be allowed and international attention to assaults on the ecological integrity of the GBR would be absent. They have their place. At the time of the struggle over the Franklin various reactionary forces complained bitterly about Australia's obligations to protect a listed environment as an assault on national sovereignty. This was a smokescreen for the sort…

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  7. Thomas Stace

    Senior Lecturer in Physics at University of Queensland

    In this particular case, is there no issue with the fact that the treaty was signed when HK was a british territory, but is now part of PRC? Does that leave any room to argue that the treaty no longer carries legal authority, since one of the signatories no longer exists in the same legal form?

    Furthermore, section 73 of the Australian Constitution regarding the jurisdiction of the High court states:

    "The High Court shall have jurisdiction, with such exceptions and subject to such regulations…

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    1. Peter Reefman

      Project Manager

      In reply to Thomas Stace

      Ah! I enjoyed the reference to "The Castle". If only it were that simple...

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    2. Adam Fletcher

      PhD Candidate at Monash University

      In reply to Thomas Stace

      Hi Thomas, there's an international law doctrine of "State succession" which is supposed to keep treaties valid in such circumstances - a quick Google doesn't turn up any good summaries but there are tonnes of books if you're really keen.

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  8. Thomas Faunce

    ARC Future Fellow at Australian National University

    Bruce, these investment and trade agreements allow 'arbitrators' with a vested financial interest in a pro-corporate result to make findings that governments have to pay damages. Although the US frequently ignores such rulings, this is not a pleasant option for nations seeking to promote their trade and investment image. Anthony, while international agreements (such as those under the auspices of the United Nations) are helping to shape a global social contract predicated on great social virtues such as justice, equality, respect for human dignity and enviornmental sustainability, these trade and investment agreements are really the normative creatures of the multinational corporate sector via their lobbyists. They should not be used to by-pass established and efficient rule of law procedures. That sends a very bad signal about where global governance should be headed.

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  9. Grendelus Malleolus

    Senior Nerd

    We should permit the tobacco companies to ship their products to Australia in any packaging they like. However they should then only be sold in plain packaging as determined by Australian law - the local extensions of the multinational tobacco companies would need to bear the cost of repackaging cigarettes once inside Australia - and perhaps pass this cost on to consumers. This would comply with Australian Law - and raise the price of cigarettes and further reduce consumption.

    As an alternative - if the tobacco companies proceed with the international action, the government should make it clear that in the even of it losing the trade arbitration it will quadruple the tobacco excise - call it punitive if you like but they are still being given the option of selling their product at the moment and their actions and words are contradictory at best.

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  10. Dilan Thampapillai

    Lecturer, School of Law at Deakin University

    With regard to the WTO, I just don’t see how the proper operation of an international legal scheme that we helped set up and legal obligations that we signed up to is an affront to the rule of law.

    It is a well-established rule of public international law that the state of a nation's internal laws are no answer to a failure to comply with its international obligations. The fact that the Plain Packaging laws are constitutional was never going to solve the problem posed by TRIPS and the BITs…

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    1. Thomas Stace

      Senior Lecturer in Physics at University of Queensland

      In reply to Dilan Thampapillai

      But it appears from Thomas Faunce's article (and others in recent times) that the particular treaty negotiated with HK was poorly thought out in regards to future consequences: namely that a multinational corporation might conveniently choose to relocate its holding body there shortly after being given notice that Australian Government policy was about to change. It smells a lot like jurisdiction shopping. Surely that possibility was an unintended outcome of the wording of the 1993 treaty.

      Presumably…

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    2. Kaye Hargreaves

      Retired

      In reply to Dilan Thampapillai

      "effectively render established trademarks into a nullity"? I wonder whether that is putting it too strongly? The trademarks still exist. We are just saying you can't display them in our patch. Not quite the same thing, is it? I felt the intellectual property argument was drawing a long bow. But we won't know for sure about that until the HCA publishes its reasons, will we. I await that with interest.

      BTW, don't we need to be party to dispute resolution mechanisms in international treaties? Otherwise, what's the point? The problem seems to be that according to Prof Faunce, these procedures are flawed.

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    3. Ric Morgan

      logged in via Twitter

      In reply to Dilan Thampapillai

      I think that some of the comments in Dillan's note go to far. In particular the statement picked up on by Kaye regarding trade marks that the laws "effectively render established trademarks into a nullity" should be considered in the light of the High Court's orders which would seem to point to a decision that the laws did not result in the trade marks being acquired.

      TRIPS is important but it seems to me that the important warning is about the extent that investor-state dispute rights in international treaties can impact on nation state choices (regardless of whether those choices are otherwise sound). In effect such rights give corporations nation-state like status and unlike such nation-states corporations seem to me to be much less likely to be influenced by the interests of diplomacy that impact on nation-state behavior.

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    4. John Harland

      bicycle technician

      In reply to Dilan Thampapillai

      "We" set them up?

      Treaties such as this are negotiated in great secrecy by bureaucrats and businesspeople primarily, with elected Ministers dragged in at the last moment as a sort of legitimization of the process.

      I did not vote to cede our national power to foreign, unelected bodies.

      Or do you mean "We" as one of the players in this treason?

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    5. Kaye Hargreaves

      Retired

      In reply to John Harland

      In our system, we do not get to vote on every single decision or act of government. Our Constitution gives us the right to vote in elections, and for the most part Australians leave the business of government to the government. If you want to change that, throw out the Constitution and start again. In foreign affairs, "bureaucrats" have an important role because we need some continuity in international relations. Generally treaties are in the national interest, and this is agreed by both main parties. I don't think signing treaties means "ceding our national power to foreign, unelected bodies". It gives us access to the world, which we wouldn't otherwise have.

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    6. John Harland

      bicycle technician

      In reply to Kaye Hargreaves

      Gives who "access to the world". Citizens, or corporations?

      We cannot reasonably have a say in every policy decision in a democracy but too many decisions are far too remote from our involvement. In the case of "free" trade negotiations, and those about "intellectual property" the negotiations are often secret from citizens but, seemingly, not from large corporations.

      The existence of a whole set of separate bilateral trade policies is not Free Trade and it has never properly been aired as a genal policy issue on which we, as citizens, can make an informed decision.

      Such treaties are buried in rhetoric about free trade, with its associated blather about how we are all better off with (on average, neglecting the relative share of the benefits and disbenefits accruing to different groups in the community)

      How many degrees of separation are there between the voter and the adjudicator appointed by the WTO to judge our Plain Packaging legislation?

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  11. Kaye Hargreaves

    Retired

    Dear Dr Faunce

    Thanks for alerting me to possible problems with the Plain Packaging legislation. By way of personal disclosure, I have a Law degree (but I'm not a lawyer) I'm a non-smoker and I don't have any financial stake in the issue. I don't believe in "prohibition" whether of alcohol, tobacco or other drugs, but I do believe in doing whatever we can, short of making harmful substances illegal, to discourage people from using them and helping those already hooked to get off them.

    I felt…

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    1. Kaye Hargreaves

      Retired

      In reply to Kaye Hargreaves

      Sorry, when I said "pain packaging" I obviously meant "plain packaging", although I seem to have invented an appropriate concept!

      Thank you Dilan for providing the detail on Australia's role in getting involved with the agreements we are discussing. You have fleshed out my hunch that participation in the international community is a consequence of the rule of law, not a threat to it.

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    2. Grendelus Malleolus

      Senior Nerd

      In reply to Kaye Hargreaves

      I'm now imagining packs with a sensor and electrodes that provide the smoker with an electrical jolt every time with take a cigarette from the packet as a form of behavioural conditioning...

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    3. Kaye Hargreaves

      Retired

      In reply to Grendelus Malleolus

      My former partner, the late Alan Jordan, worked with homeless men. He told me about seeing one of his alcoholic clients participating in aversion therapy. A glass of whisky was placed before him. He drank it, and received a shock. Another glass was placed before him. He took it a little hesitantly. He received another jolt. Another glass was placed before him. As Alan said "he looked at it sorrowfully, but didn't touch it."

      Problem is of course, the conditioning doesn't carry over to rich, real-word…

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  12. Thomas Faunce

    ARC Future Fellow at Australian National University

    Dilan, one major problem with WTO agreements and BITs is that their dispute settlement procedures don't allow the arbitrators to take into account the wider nromative framework--for example United Nations human rights and environment treaties (in this case the WHO Framework Convention on Tobacco Control). They are very narrowly focused. The TRIPs agreement was created by a cabal of multinational corporations. BITs arbitrators are not judges, they have a vested financial interest in finding for corporations, they don't fully publish their reasosn or regard what they are creating as a body of jurisprudence. The issue is what's at stake if people like this are allowed to have the final say on major public health and environment issues.

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    1. Stephen Riden

      Research and Information Manager, DSICA

      In reply to Thomas Faunce

      "the wider normative framework" sounds like invoking 'it's the vibe'

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  13. Eric fisher

    PhD student at University of Western Australia

    To my knowledge, the only statement on its judgment came from the High Court on 15 August 2012. It read:
    "The plaintiffs sought to rely upon the restraint upon the legislative power of the Commonwealth Parliament found in s 51(xxxi) of the Constitution, which empowers the Parliament to make laws with respect to "the acquisition of property on just terms". The plaintiffs argued that some or all of the provisions of the Act were invalid because they were an acquisition of the plaintiffs' property…

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  14. shuningbian

    logged in via Twitter

    At this point, it seems easier just to outlaw tobacco then fight tobacco companies over plain packaging...

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    1. Kaye Hargreaves

      Retired

      In reply to shuningbian

      Not at all! We have successfully fought the tobacco companies. If the allegedly shonky international tribunals cause a problem, we can just walk away from their decision ... after all, what enforcement mechanisms do they have? Embarrassment in the eyes of a very small section of the international community? No-one's going to die because of that. And we can take the moral and legal high ground (in our domestic jurisdiction as well as the internationally, via the WHO Framework Convention).

      To outlaw…

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    2. Tracy Heiss

      logged in via Facebook

      In reply to Kaye Hargreaves

      I agree with you Kaye about the futility of banning the product. However, I believe there are other solutions. How about licensing a current smoker, and introduce a plan of banning the product in, say, people born after 2010? I have no idea how this could be enacted, but I do feel there should be some other way of thinking about this whole issue.

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    3. Clifford Chapman

      Retired English Teacher

      In reply to shuningbian

      I'd agree with you on this - I'd simply just ban the manufacture of tobacco. The argument that it hasn't or didn't or doesn't work with alcohol and drugs, ergo we shouldn't do it with tobacco, in my view is irrelevant and defeatist.

      We should not let a negative view or position set any agendas.

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    4. Kaye Hargreaves

      Retired

      In reply to Clifford Chapman

      I don't think it is irrelevant or defeatist. What is it about banning a product which you believe can lead to people not using it? Is there any evidence for such an outcome? I don't think so. Experience shows that banning creates a black market. People still have a demand for the product, and that demand will be filled, illegally if there are no legal avenues. The resultant crime and corruption is a huge unintended consequence of the legislation. And legislation doesn't work without enforcement provisions, which are hugely expensive, and again, where is the evidence that they work? I think it would be more effective to spend the money hepling people to kick the habit, or not take it up in the first place.

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    5. Clifford Chapman

      Retired English Teacher

      In reply to Kaye Hargreaves

      I do.

      The issue of whether that banning leads to people not using it, is not the question at all.

      It is far more to do with us as a moral and ethical being, and whether we are only going to pay lip service to being a civilised and intelligent creature.

      And since you ask me if there is any evidence for such an outcome, as I have only ever lived in a world where cigarettes are legally manufactured , sold and smoked, there can't be since we've never tried it.

      The rest of your paragraph, in my view, only confirms for me just how far we have to go because its emphasis is on money and costs, not moral and principle.

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  15. Rajan Venkataraman

    Citizen

    Dear Prof Faunce
    Unfortunately, I think your righteous indignation has carried you away this time and your article may have benefited from a 24 hour cooling off period before it was submitted. I find the comment on your article by Dilan Thampapillai much more measured and insightful without having to resort to emotive descriptions of 'cabals' and 'vested financial interests' and 'unaccountable' arbitrators etc.

    If Australia's case is as rock-solid as you think it is and if, as you say, our legislation has been enacted in 'compliance with obligations under international law' (it will be interesting to see what the High Court has to say about this when its reasons are published), then our lawyers should have an easy time at the international tribunal. As Dilan says, Australia is not an unsophisticated player when it comes to pushing its case in these tribunals.

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  16. Thomas Faunce

    ARC Future Fellow at Australian National University

    Rajn, the point you're missing, with respect, is that these trade and investment tribunals don't have to take into account Australia's obligations under international law or the Constitutional protections of Australian citizens. Foreign investors can protect their rights along with domestic companies through our courts; they don't need these tribunals when a nation, like us, has an established rule of law. Claiming that I need to 'cool off' is just an 'ad hominem' logical fallacy.

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    1. Rajan Venkataraman

      Citizen

      In reply to Thomas Faunce

      Gosh, you are awfully sensitive for someone who is happy to accuse others of representing vested financial interests, of being unaccountable and of belonging to cabals - without any basis for these claims as far as I can see!

      Leaving aside the 'ad hominem' attacks though, it seems that your basic argument is that Australia should not sign up to any mechanism that includes binding international dispute settlement mechanisms - or at least mechanisms that might apply to Australia and other countries that have an acceptable adherence to the rule of law. Fair enough. Such an approach will obviously have its costs and benefits but it is an arguable principle.

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  17. Thomas Faunce

    ARC Future Fellow at Australian National University

    Stephen, the point is that United Nations human rights and environment treaties (in this case the WHO Framework Convention on Tobacco Control) should not be dismissed as "the vibe," as will happen before trade and investment tribunals.

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  18. Dilan Thampapillai

    Lecturer, School of Law at Deakin University

    I think that what comes through in this article and in the comments that follow it is a deep scepticism of international economic law. I disagree with that viewpoint because (i) we are a savvy player in international law and (ii) in order for international trade to function there will need to be some type of legal framework to facilitate it. It does not make sense to make foreign investors solely reliant upon domestic courts for the adjudication of disputes. In effect, that would mean that they would…

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    1. John Harland

      bicycle technician

      In reply to Dilan Thampapillai

      Why should foreign companies not be completely beholden to the courts of the countries they trade in?

      To do otherwise is to grant to corporations rights that are not held by the citizens of the country.

      Even John Kerr was appointed through a due process by the Parliament of Australia. Who appoints the WTO arbitrators?

      "Legal protectionism" is a nonsensical jibe in the context. Secret trade treaties are not synonymous with "international law".

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  19. Stuart Smith

    logged in via Facebook

    What I find interesting about the potential future outlined here is that it forms part of a larger debate about national sovereignty and the influence of international laws and conventions. On one hand there has been a push by some to accept international law and conventions and to incorporate them fully into our domestic legal framework. Numbers of issues come under this including immigration, free trade and defence to name a few. Then on the other hand there are others who resist the encroachment…

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    1. Kaye Hargreaves

      Retired

      In reply to Stuart Smith

      Yes Stuart, there is a lot of jiggling between international and domestic perspectives. But I am still struck by how much things have changed since I was studying these issues in Law School before the break up of the Soviet Union.

      Howard's famous (notorious?) quote would appeal to many Australians. However, the government of the day is always having to say that whatever "Solution" they are promoting, it will be consistent with our international obligations under the Refugee Convention or the…

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  20. Clifford Chapman

    Retired English Teacher

    While I agree with the general tenure of this issue, the morally bankrupt tobacco companies cannot really control or effect or really even challenge, successfully, what democratically elected governments decree, enact and legislate. In relation to that, the WTO is a paper tiger. Big business can only influence governments in such matters, if the governments in question are at their core as rotten and corrupt as the companies involved

    This is not 'An affront to the rule of law', but an attack, if it ocurs, on what thousands of decent men and women fought for and even died for over the centuries, the right to freedom and democracy.

    Australia is now one of the leading countires in the fight against this sickening addiction, with something like only 17/18% of people now smoking. There is no way some crap tobacco company or third rate, tin-pot country, can decree what 80% plus of a people have said no to.

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  21. Peter Elepfandt

    Medical Doctor

    It would be very sad if some corporation which deliberately sells stuff that harms people would be compensated for laws that would reduce their sales.
    It is like a heroin dealer suing against not being able to sell his product because it inhibits his right of choice of job (or whatever legal term there is for this)

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    1. Clifford Chapman

      Retired English Teacher

      In reply to Peter Elepfandt

      While I well understand your sentiments, Peter Elepfandt, I do not think that 'sad' is strong or accurate enough to describe such a possibility, if it exists.

      There is just no way democratically elected governments in free countries can have their legislation and practices subjected to such actions, and that's the case with any product and company, not just the morally bankrupt tobacco companies.

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  22. Michael J. McFadden

    Author

    The article notes: "They would not be required to take the constitutional, legislative or international human rights context (including standard legal due process procedures) into account, or maintain a public record of their decisions. All of this undermines their capacity to claim they are part of the rule of law."

    Of all of these, I actually find the last note to be the greatest problem. All of the other problems would be exposed to public scrutiny if there was a full public record of not just the decisions, but also the discussions that went into those decisions. Under that public eye I think infringement on constitutional, legislative, or human rights concerns would occur far less often.

    - MJM

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    1. Clifford Chapman

      Retired English Teacher

      In reply to Michael J. McFadden

      I would, therefore, ask the author to explain fully what is meant by 'They would not be required to take the constitutional, legislative or international human rights context.......into account', in relation to what is meant by the use of the word 'context' there?

      It's peculiar terminology.

      Is that his just using that word or is it taken from trade agreements Australia has signed?

      I would find it nigh-on impossible to accept that the signing of any trade agreements becomes 100% binding on signatories to those agreements, if any country decides to make changes that impact on those trade agreements.

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