Australia is a federation (known as the Commonwealth of Australia), whose government derives its powers from the national Constitution. The Commonwealth Parliament has only those legislative powers specifically accorded to it in the Constitution, while the states and territories that make up the Australian federation have plenary power within their respective jurisdictions, meaning that they have legislative powers with respect to any matter other than those matters over which the Commonwealth has exclusive power.
Historically, tobacco control legislation in Australia has included both Commonwealth and state and territory enactments. Certain areas, such as protection against secondhand smoke, and regulation of retail sales, have been left to the states and territories. In light of Australia’s ratification of the WHO FCTC, the constitutional context has changed. 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.1-3 Where a treaty is relied on to enact such laws, 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’.2 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 WHO FCTC.
Beyond the creation of international tobacco control obligations and the resulting change in the scope of the legislative power of the Commonwealth, the WHO FCTC has deepened the connections between the development of tobacco control policy in Australia and internationally. With Australia a Party to the Convention and an active participant in its processes, the work that takes place through the WHO FCTC COP is highly relevant to domestic tobacco control. As detailed above, the COP has adopted detailed guidelines for effective implementation of many of the broad range of legislative, executive, administrative and other measures required under the Convention. Together, the WHO FCTC and its guidelines help to inform the priorities of Australian governments, both Commonwealth and state and territory, in relation to tobacco control policies and programs. Although tobacco control is shared between the Commonwealth Government and state and territory governments, the main focal point for implementation of the WHO FCTC is the Alcohol, Tobacco, and Other Drugs Branch of the Australian Government Department of Health, in collaboration with other Australian Government agencies, state and territory government departments, and non-government organisations including Cancer Councils.4
The WHO FCTC also provides a framework for international cooperation in those areas of tobacco control in which Australia and other Parties cannot effectively act alone as well as requiring cooperation to allow all Parties, including developing country Parties, to move forward in implementation of the Convention. Australia has the responsibility to cooperate with other WHO FCTC Parties to address trans-boundary tobacco control problems, and to assist other Parties in meeting common challenges to effective tobacco control.
On a wide range of issues, progress in tobacco control in Australia is now intimately connected with WHO FCTC processes. Those interested in tobacco control in Australia need to keep abreast of international developments if they are to understand the full context in which Australian tobacco control policy is now made and implemented.
The following sections of this chapter provide an overview of the substantive provisions of the WHO FCTC and include key elements of Australia’s implementation of these obligations, the impact of the WHO FCTC and its role in the context of global governance. The chapter will conclude with a detailed case study example of the WHO FCTC in a domestic context in relation to Australia’s tobacco plain packaging measure.
1. R v Burgess; Ex Parte Henry (1936) 55 CLR 608.
2. Victoria v. Commonwealth (‘Industrial Relations Act Case’) (1996) 187 CLR 416.
3. Commonwealth v. Tasmania (‘Tasmanian Dam Case’) (1983) 158 CLR 1.
4. Australian Government Department of Health. Core Questionnaire of the Reporting Instrument of the WHO FCTC. 2018. Available from: https://untobaccocontrol.org/impldb/wp-content/uploads/Australia_2018_Report.pdf