Federal Government ordered to reveal ISDS tobacco plain packaging legal costs

After a long Freedom of Information (FOI) battle initiated by former Senator Nick Xenophon, the Australian Information Commissioner has ordered the Federal Government to hand over the total legal costs in the Philip Morris tobacco plain packaging case conducted in the Hague.

"I welcome the Commissioner's decision", said NXT Senator Rex Patrick. "Noting the concerns that have been raised around ISDS provisions in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, knowledge of the Government's ISDS costs in the tobacco litigation will help to inform public discussion on the CPTPP."

NXT has consistently called for ISDS provisions to be removed from any trade agreements Australia enters into. They allow corporations to appeal decisions of our High Court to international tribunals.

"These international legal battles are an attack on our sovereignty and come at significant cost to the taxpayer," said Rex. 

In 2012 the High Court determined that legislation relating to plain packaging of tobacco products was constitutional. Philip Morris then sought to challenge the legislation in the Permanent Court of Arbitration in The Hague using ISDS provisions in the 'Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments'. 

"Thankfully Australia won the case on a well-argued jurisdictional technicality, but not after spending a reported $50 million in legal costs," said Rex.

Nick Xenophon sought details of the cost of this case from the Department of Health at Senate Estimates in October 2016. The Department refused to release these details citing public interest immunity. Nick then sought the costs under Freedom of Information. Again, the Government refused to provide the costs arguing they should be kept secret from the public.

The Information Commissioner has now ordered the total cost be provided to Nick. The Department has 28 days to do that, or initiate an appeal to the Administrative Appeals Tribunal. 

"Let's hope they don't do that," said Rex. "The smoke needs to clear on this."