DISSENTING REPORT BY LIBERAL SENATORS

1.1        The use of tobacco each year kills and harms thousands of Australians.  It is sensible public policy to take action to reduce rates of smoking.

1.2        Liberal senators, therefore, express support for the policy objective of plain packaging of tobacco products, and note the Opposition's support for the Tobacco Plain Packaging Bill 2011 (TPP Bill).

1.3        However, support for the Government's objectives should not be an excuse to override principles of good legislative practice.

1.4        Liberal senators agree with the Committee majority's view that the key issue of this inquiry is the so-called 'Henry VIII' clause the Bill would insert into the Trade Marks Act 1995 (TM Act).

1.5        The Bill would amend the TM Act to enable the Minister to make regulations with respect to the operation of the TPP Bill.  Regulations made under this section could be inconsistent with and prevail over the TM Act.

Scope of the regulation-making power

1.6        Liberal senators acknowledge that the TPP Bill, if enacted, would result in a significant change to the operation of trademarks as regulated by the TM Act.  Liberal senators therefore recognise that the need to amend the TM Act in ways not presently conceivable may arise in the future.

1.7        However, Liberal senators question the objective of sidestepping the Parliament to make amendments to the TM Act where they would be required to enable the Government's plain packaging policy.

1.8        The explanatory memorandum assures that "the objective of any such exercise of power under the Bill will be to ensure that applicants for trade mark registration and registered owners of trade marks are not disadvantaged by the practical operation of the Plain Packaging Act".

1.9        However, Liberal senators are concerned that the powers of the Minister enabled by this clause may be broader than posited by the Government. Liberal senators note the evidence of Mr Myers for British American Tobacco Australia which suggests that the Minister’s powers to amend the TM Act may be considered virtually unlimited with respect to trademarks:

Senator CASH: Mr Myers, in that regard, in your considered legal opinion, under the way in which this legislation is currently drafted, what is the extent and scope of what the parliament is actually allowing the minister to do?

Mr Myers: The minister can do anything in relation to trademarks.^[1]

1.10      Hence, by its least generous interpretation, the Bill enables the Minister to make regulations significantly contrary to the TM Act. By its most generous interpretation, the Bill enables the Minister to make regulations with respect to anything related to trademarks. 

1.11      Liberal senators consider that even by its least generous interpretation, the scope of the regulation-making powers provided by this Bill are excessively broad and should not be supported.

1.12      Witnesses before the inquiry also raised the concern that the Bill presents constitutional issues:

Senator BRANDIS:  So your argument would be, Mr Myers, that, because the minister can do virtually anything, it is an executive act, not a legislative act and for this piece of legislation to be valid it has to be an exercise of the legislative power of the Commonwealth and this would not be. Is that what it amounts to?

Mr Myers:  Yes, it does. [2]

1.13      Evidence to the committee also noted that a Commonwealth court has not considered a Henry VIII clause as broad as that proposed by the Bill:

Senator BRANDIS: Are you aware of any court in the Commonwealth, not just in Australia, considering a Henry VIII clause as broad as this?

Mr Myers: No. Certainly varieties of Henry VIII clauses have been considered by courts in Australia and England—there is no question about that—but not a clause of this breadth.[3]

Necessity of the clause

1.14      Liberal senators are not satisfied by the Committee majority's view that the extent to which this Bill delegates power to the Minister is justified by the nature of the policy area. Liberal senators note the view of the Administrative Review Council:

... it is clearly inappropriate for a body subordinate to Parliament to amend or alter an Act of Parliament. This is particularly so when changes affect the essential elements of a scheme, alter the ambit of legislation, place restrictions on rights, or alter obligations.[4]

1.15      Liberal senators acknowledge that there are mechanisms for the scrutiny and disallowance of delegated legislation. However, this does not justify the delegation of legislation by any degree.   A threshold must exist beyond which the Parliament refuses to delegate its legislative powers.

1.16      The Department of Health and Ageing noted in its submission that the Henry VIII clause was preferred in order to effect unforeseeably necessary changes to the trade marks regime quickly without Parliamentary amendment:

The use of a Henry VIII clause in this case is preferred to: avoid the need to amend the Trade Marks Act 1995 itself, in recognition of the need for robustness and clarity in the Trade Marks Act 1995 and regulations; and to ensure that legislative action to protect the rights of trade mark owners can be taken quickly should the need arise.[5]

1.17      Liberal senators opine that while speed is an inherent advantage to all Henry VIII clauses, alone it is insufficient to justify their inclusion in Acts of Parliament.  Rather, a compelling case must be made for why such speed is necessary; viz. why it would be impractical for the Government to seek necessary amendments through the Parliament when required.  Such a case has not been made with respect to the Bill.

1.18      Henry VIII clauses are a reversal of the principle of the supremacy of Parliament.  Liberal senators acknowledge that in rare and exceptional circumstances such clauses are necessary to protect time-critical legislation where great harm may flow to a scheme from a flaw in the legislation.

1.19      The use of trademarks in respect of tobacco packaging has existed for more than a century.  It is difficult to see how a lacuna in the Government's plain packaging regime of a few months – should that be necessary to allow Parliament to remedy any flaw in this regime – could be considered a significant problem in its implementation.

1.20      It is tempting to conclude that the extraordinary power conferred on the Minister by this Bill has little to do with "robustness and clarity" of the Trade Marks scheme and more to do with saving the Government the embarrassment of corrective legislation should the courts strike down parts of its plain packaging regime.

1.21      Liberal senators are of the view that the Parliament must reserve its authority to scrutinise significant amendments to the TM Act before they take effect, not after.

Recommendation

1.22    Liberal senators recommend that the Senate oppose the bill.

 

Senator Gary Humphries Deputy Chair	Senator Michaelia Cash
Senator Sue Boyce	Senator the Hon George Brandis SC

Navigation: Previous Page | Contents | Next Page