18.9 What the FCTC means for Australia
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Australia became a Signatory to the FCTC on 5 December 2003, soon after the Convention opened for signature. Australia was one of the first 40 countries to ratify the FCTC, and so became a full Party on 27 February 2005, the date on which the FCTC came into force. Australia is thus legally bound to perform, in good faith, the full range of obligations outlined above. Australia submitted its first report to the COP on its implementation of the FCTC in February 2007.[25]
Australia is a federation, whose government derives its powers from the national Constitution. While the States which make up the Australian federation have plenary power to legislate within their respective territories, the Federal Parliament has only those legislative powers specifically accorded to it in the Constitution. The Commonwealth may enact laws to implement an international treaty to which Australia is a Party pursuant to its power to make laws with respect to external affairs under section 51(xxix) of the Constitution.9 This power is subject to a requirement that the treaty deal with a matter of 'international concern'10, 11 and that it embody precise obligations rather than mere vague aspirations.12 The FCTC—which provides, in response to the global health crisis caused by tobacco, for a framework for international cooperation to address this crisis, and prescribes a range of specific tobacco control measures to be implemented by Parties—clearly meets these conditions. Where a treaty is relied on to enliven the legislative power conferred on the Federal Parliament by section 51(xxix), the legislation must be 'appropriate and adapted' to the implementation of the obligations contained in the treaty if it is to be constitutionally valid. The law in question must be 'reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs'. 12 (p 487)
Historically, tobacco control legislation in Australia has included both Commonwealth and State and Territory enactments. Certain areas, such as protection against second-hand smoke, and aspects of advertising in retail outlets, have been left to the States and Territories. Commonwealth legislative power was not broad enough to allow comprehensive regulation of these areas within the States. In light of the Australian Government's ratification of the FCTC, the constitutional context has now changed. While there may still be practical and political reasons for continuing to deal with certain matters at a State and Territory level, the Commonwealth Government would have power to legislate in areas that have historically been beyond it in order to implement Australia's obligations under the Convention.
In addition to this change in the scope of the legislative power of the Commonwealth, the FCTC has deepened the connections between the development of tobacco control policy in Australia and internationally. With the Australian Government a Party to the FCTC, and an active participant in its processes, the work that takes place through the FCTC COP is highly relevant to domestic tobacco control. Three of the major substantive issues on the current agenda of the COP—health warnings and packaging information; advertising, promotion and sponsorship; and product regulation and disclosure—are issues on which Australian tobacco control organisations are currently advocating for policy change. The Australian Government is actively involved at the COP level on each of these issues. It has volunteered to be the lead 'key facilitating country' for the development of guidelines on health warnings and packaging information (Article 11) and a 'partner' country for the development of guidelines on advertising, promotion and sponsorship (Article 13) and on product regulation and disclosure (Articles 9 and 10). One of the other major substantive issues on the COP agenda—illicit trade in tobacco products—is acknowledged to be a problem in Australia (see Chapter 13 Section 13.7). The Australian Government will be an active participant in the negotiation of a protocol on illicit trade.
On all of these issues, progress in tobacco control in Australia is now intimately connected with FCTC processes, with the COP working on establishing international standards in areas in which Australia—while certainly a leading country internationally—can still do more. Those interested in tobacco control in Australia need to keep abreast of these international developments if they are to understand the full context in which Australian tobacco control policy is now made.
[25] The report is available at: http://www.who.int/tobacco/framework/cop/party_reports/australia_report.pdf
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