DISSENTING REPORT BY LIBERAL SENATORS
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.
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).
However, support for the Government's objectives should not be an excuse
to override principles of good legislative practice.
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).
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
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.
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.
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".
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
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.
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.
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. 
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
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.
Necessity of the clause
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
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.
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.
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.
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.
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.
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.
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.
1.22 Liberal senators recommend that the Senate oppose the bill.
|Senator Gary Humphries
|Senator Michaelia Cash
|Senator Sue Boyce
Senator the Hon George Brandis SC
Navigation: Previous Page | Contents | Next Page
Back to top