The Callinan inquiry into Sydney’s lock-out laws


A few questions came to mind when I read that former High Court Justice Ian Callinan had been appointed to head the independent inquiry into amendments to NSW’s liquor licensing laws, including the controversial lock-out laws”.

Mr Callinan was a member of the High Court when it decided, by a 3:2 majority, that hoteliers owe no duty to use reasonable care to prevent patrons from causing harm to themselves as a result of excess drinking.  Despite the economic interest hoteliers have in encouraging patrons to drink, and to keep drinking.

The primacy of personal responsibility was clearly the over-riding value in the statement by Justice Callinan that:

Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess [Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29, at [121]].”

The lock-out laws that currently apply in the CBD and Kings Cross precincts of Sydney were neither an exercise in temperance by the NSW Government, nor a response to the fact that alcohol is responsible for 5% of Australia’s burden of disease (Australia’s Health 2016, p 59).

Rather, the lock-out laws were part of a package of amendments seeking to reduce the number of unprovoked alcohol-fuelled assaults by yobbos on Sydney streets.

For a short review of the “one-punch” reforms, see here.

The impact of the liquor licensing amendments on supermarkets and bottle shops was discussed here.

The death of Thomas Kelly, who was punched in the head during a night out in Kings Cross, was partly a catalyst for these changes.

In July, the Kelly family suffered a further loss with the death of another son, Ralph.

The injustice visited upon this family is heart-breaking, it is dizzying.

But it truthfully illustrates how alcohol-related harm spreads outwards – through families and beyond, like the ripples in a pond.

Much of that harm is externalised by the alcohol industry onto others.

What is the industry’s response?

Industry-funded “DrinkWise” public health messages/advertisements (can’t tell which) like this one, that build brand value for alcohol companies and associate beer brands with water sports.

Yep, that ought to work.

Watch out for the new “SmokeWise” e-cigarette advertisements – brought to you by Philip Morris….


Highlights from the Callinan report

In his report, Mr Callinan gave particular weight to the opinions and experience of police and the medical profession.  He said:

“The police and the medical profession, the latter of whom are financially and generally otherwise disinterested in the relevant issues, are strongly, adamantly, of the opinion that it is the Amendments in total and in combination that make them effective in reducing alcohol-fuelled violence and anti-social behaviour in the [CBD and Kings Cross] Precincts”.

He concluded that the Precincts were “grossly overcrowded, violent, noisy, and in places, dirty, before the Amendments, but that after them, they were transformed into much safer, quieter and cleaner areas” (p 10).

Mr Callinan was dismissive of the assumption that the vibrancy of a city at night can only be measured by the amount of alcohol consumed or available.  However, he acknowledged that opportunities for live entertainers may have diminished, and that the amendments may have contributed to some closures of premises selling alcohol, and some reductions in employment opportunities:

“The Amendments have come at a cost which is not quantifiable but which should not be exaggerated to employment, live entertainment and the vibrancy of the Precincts” (p 11).

Mr Callinan did not accept that violence had simply been displaced to other areas.  In response to the usual suggestion that anti-social drinking should be addressed by “cultural change and education”, rather than regulation, he said: “Cultural attitudes are difficult and slow to change.  The legislature in the meantime has to deal with the situation as it exists” (p 6).

Mr Callinan pointed out that the lock-out laws had enabled more police to be deployed in detecting and preventing non-alcohol-related harm, rather than tying up resources (pp 8-9).

Mr Callinan stated that he regarded the 10 pm curfew as making “little or no contribution to violence and anti-social behaviour in the Precincts” (para 9.10), although he acknowledged it might contribute to domestic violence (para 9.11).

He recommended relaxing the hours of sale for takeaway alcohol at licensed premises to 11 pm, and home delivered alcohol until midnight (para 9.10).

Two of the more controversial liquor control measures included in Mr Callinan’s inquiry were the “lock out” and “last drinks” provision.

For a trial period of two years, Mr Callinan recommended a relaxation of the lock-out laws from 1.30 am to 2.00 pm, but only to enable patrons to enter those parts of premises offering live entertainment.  He recommended a further relaxation of the liquor sales cessation period, from 3.00 am to 3.30 am, but only in respect of patrons in the “live entertainment” parts of the premises.

The NSW Government has indicated it will respond to the Callinan report before the end of the year.

Are these photos the pointy end of tobacco control? Or just another example of what the tobacco industry does best?

Blu electronic cigarettesrecent e-cigarette adwhy quit - switch to Blu

If the e-cigarette industry in Australia has a martyr, his name is probably Vince van Heerden.

More about him in a moment.

Advocates for e-cigarettes claim that they are a healthier alternative to smoking, and provide a ray of hope for desperately addicted smokers.

However, before you make up your mind, look at how e-cigarettes are promoted in countries like the US where they can be freely sold.

I am not a fan of e-cigarettes.  Some of the (highly visual) reasons why are given at the bottom of this post.

The June 2016, the Australian Competition and Consumer Commission (ACCC) took action against two online retailers for suggesting that e-cigarettes do not contain carcinogens and toxic compounds.

Second hand smoke may be more toxic than e-cigarette vapour, but according to a recent review by NSW Health, “passive exposure to EC vapour has the potential to lead to adverse health effects”.

According to the review: “…EC vapour contains elevated levels of nicotine, PM [fine particulate matter], glycerine, propylene glycol, formaldehyde and acetaldehyde, PAHs [polycyclic aromatic hydrocarbons] and metals”.

And that’s putting to one side documented reports of pediatric poisoning and burns from exploding lithium ion batteries in e-cigarettes.

EVO photo

When you see advertisements like this giving tacit permission for parents to vape all over their kids, you realise that the e-cigarette industry craves truth, justice, evidence (and profits) in much the same way as the cigarette industry.

But back to van Heerden.


Tale of an e-cigarette martyr?

Van Heerden, an IT professional, ran an e-cigarettes business called “Heavenly Vapours” from his home in Perth, selling e-cigarettes and nicotine-free “e-juice”.

Van Heerden was charged with an offence under section 106 of the Tobacco Products Control Act 2006 (WA).

Section 106 says:

“A person must not sell any food, toy or other product that is not a tobacco product but is…designed to resemble a tobacco product”.

Are e-cigarettes [and vaping hardware generally] “designed to resemble tobacco products”, such as cigarettes and cigars?

The Magistrate didn’t think so, and dismissed the charge.

The WA Health Department appealed.

In van Heerden v Hawkins, Justice Janine Pritchard of the Supreme Court of Western Australian allowed the appeal, convicted van Heerden and later imposed a fine of $1,750.

She also ordered van Heerden to pay the Department’s costs both in the Magistrate’s Court ($5,578), and in the Supreme Court ($ 8,500).

Her Honour noted that van Heerden had set up a webpage seeking donations to fund a further appeal.

That appeal has now run its course.  In March 2016, the Court of Appeal of the Supreme Court of Western Australia unanimously upheld Justice Pritchard’s decision.

You can read the Court of Appeal’s judgment here.

In imposing the fine and making the costs order against van Heerden in June 2014, Justice Pritchard accepted that van Heerden honestly believed e-cigarettes were a “healthy alternative to smoking cigarettes”.  She also noted that conviction under section 106 did not depend on the product that was sold being “harmful to public health”.


Why did the Court of Appeal confirm van Heerden’s conviction?

The Court of Appeal judgment provides a helpful primer on the principles of statutory interpretation – especially the judgment of Buss JA [paras 93-103].

The judgments also raise interesting questions for e-cigarette businesses operating in States that have tobacco control laws that are similar to WA’s section 106 (see below).

The most interesting argument raised by van Heerden was that section 106 was not intended to create an offence for the sale of “harm reduction” products that are intended to discourage the use of ordinary cigarettes.

Counsel for van Heerden argued that the prohibition in section 106 should be understood in light of the purposes of the Act, which included “discouraging the use of tobacco products”.

Counsel argued that while cigarette smokers inhale tar and tobacco-related toxins, this is not the case with those who inhale e-cigarette vapour, since electronic cigarettes do not involve combustable tobacco: [90].

Furthermore, “electronic cigarettes compete directly with ‘tobacco products’ on the basis of the ‘substantial and obvious differences between them” [91].

In response, Justice Buss JA pointed out that the purpose of legislation arises from the meaning of the text itself, when considered in context, as distinct from assumptions about “the desired or desirable reach of operation of the relevant provisions” [96].  The context includes the history of the legislation, and the “mischief to which the statute is directed”.

In 2006, when the WA Act was introduced, electronic cigarettes had not yet appeared in Australia.  (It was not until 2007 that Philip Morris began test marketing first generation “heatbar” cigarettes in Melbourne).

heartbar cigarettes

The Court pointed out that legislative provisions that set out the purpose of an Act are certainly relevant to construing the meaning of a statutory words.

If two competing constructions are open, the object or purpose of the legislation, where it is stated, will be relevant to choosing between those meanings.

On the other hand, no such choice arises when the plain and ordinary meaning of the text is apparent [paras 176-182].

In this case, section 106 prohibited sale of food, toys and other kinds of products (not being food or toys) that were designed with the intention of having a likeness or similarity to tobacco products [paras 114-118].

Section 106 did not include a defence if the products sold might be used to assist people to give up or to minise their smoking [para 121].

In other words, section 106 did not exclude products that might be used in ways consistent with “one or more of the express or implied purposes of the Act” [para 137].

Ultimately, the text of section 106 simply didn’t support the argument that Parliament had intended to create a distinction between “products designed to resemble tobacco products” and “products designed to reduce tobacco-related harm” [paras 123-125, 151, 154].

Even if e-cigarettes were properly regarded as harm reduction products, the language of section 106 did not exempt them from the prohibition on sale, given the clear language of the section [para 151].

Accordingly, whether or not e-cigarettes should be exempted from the prohibition in section 106 was a matter for Parliament, not for the courts [para 182].


Implications of the van Heerden judgment

With his conviction upheld, Van Heerden has reached the end of the road.

However, van Heerden appears to have raised a substantial sum of money for his legal costs from sympathisers.

Van Heerden’s conviction has interesting implications for retail sales of e-cigarettes in NSW, South Australia, and Queensland, which have similarly worded provisions to s 106.

For example, section 21(3) of the Public Health (Tobacco) Act 2008 (NSW) states that a person must not sell any confectionary, food, toy, amusement or other product “that resembles a tobacco product or is packaged to resemble a tobacco product”.

In Victoria, following a recommendation by the Secretary of the Health Department, the Health Minister is empowered to ban a product or class of products that “is not a tobacco product but resembles a tobacco product” [Tobacco Act 1987 (Vic) ss 15N-15S].

By contrast, in Tasmania and the ACT, the prohibition on sale of products that resemble a smoking or tobacco product applies only to toys or confectionary.

In the Northern Territory, the prohibition on sale of products resembling tobacco products only applies if the product is designed or marketed for consumption by children.


Are e-cigarettes the pointy end of tobacco control?

The merits of e-cigarettes should not be judged solely on their safety profile relative to cigarettes.

It is important to also consider evidence of the attractiveness of e-cigarettes to youth, their capacity to act as a gateway to nicotine addiction and later smoking, their observed function in undermining quitting through dual use, their potential to trigger relapse, not to mention their capacity to undermine hard-won social norms about smoke-free environments.

Let’s assume that some individuals do manage to quit smoking with the help of e-cigarettes.  That does not necessarily mean that legalising the sale of e-cigarettes is a good result for public health.

It is possible that e-cigarettes might be “good” for the health of some individuals, while at the same time being “bad” for the health of the population overall.  Such things are possible.

Studies that reach their conclusions about harm minimisation products by comparing the harm between a cohort of smokers and a cohort of e-cigarette users trivialize the complexity of the ways in which e-cigarettes are both pathways to and pathways from nicotine addiction and smoking.

E-cigarette use among high school students has skyrocketed by 900% in the United States, from 1.5% in 2011 to 16% in 2015.

No wonder tobacco companies are buying up e-cigarette companies.  Blu e-cigarettes, for example, was purchased in July 2014 by Imperial Tobacco, the world’s 4th largest tobacco company.

Self-evidently, it makes no sense to Imperial Tobacco to position e-cigarettes in a way that would undermine its “full harm” cigarette business.

There is emerging evidence that e-cigarette use is a risk factor that facilitates smoking.  A recent study of Southern Californian teenagers compared never-smoking e-cigarette users with never-smoking teenagers who had never used e-cigarettes.  Over a 16-month period, more than 40% of e-cigarette users progressed to smoking, and more than 10% of those who had never used e-cigarettes.  However, those who used e-cigarettes had 6 times the odds of progressing to smoking than those who had never used e-cigarettes.

So…are e-cigarettes the pointy end of tobacco control?

Well, let’s do the math.

This is how cigarettes used to be advertised.


This is how e-cigarettes are advertised now.

springtime 2


This is how cigarettes used to be advertised.

old tobacco ad

This is how e-cigarettes are advertised now.

recent e-cigarette ad


This is how your doctor and dentist used to advertise cigarettes.

dentistreccomendedLdoctor recommends lucky strike

According to the Huffington Post, in July 2016 a company called Nicoventures – owned, not coincidentally by British American Tobacco – published research claiming that 8 in 10 Australian doctors support the use of e-cigarettes.

BAT has a vaping device that is already licensed as a quit smoking aid in the UK, and available through the NHS.

Perhaps BAT is angling to have their product approved by the Therapeutic Goods Administration in Australia.

Oh dear.  So confusing.  Should we believe anything the tobacco companies say?

Well, perhaps sometimes…

Zero style

Are you interested in health law?  For further information on Sydney Law School’s Master of Health Law and Graduate Diploma programs, follow this link.

Named reporting of HIV: A positive step for public health?

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In Australia, doctors must notify public health authorities of new cases of HIV/AIDs. However, strict confidentiality requirements apply to the testing, treating and notification of HIV, protecting the identity of patients.

As part of its review of the New South Wales Public Health Act 2010, the Department of Health is considering whether to remove these confidentiality requirements from NSW public health legislation. Is this a move that should be welcomed by health care professionals and patients?

Infectious disease notification

All Australian jurisdictions have laws that require the notification of certain infectious diseases. In NSW, notification requirements can be found in the Public Health Act 2010, which creates five categories of diseases that must be reported by medical practitioners, pathology laboratories, and hospitals, including HIV/AIDs.

Section 56 of the Act places confidentiality requirements on information relating to a patient’s HIV status. There are three main components to section 56:

  • Notifications for HIV/AIDs must be made in a de-identified format;
  • A person’s identifying details must not be used when arranging a diagnostic test for HIV (except in hospital situations or with the person’s consent);
  • A person who, in the course of providing a service, obtains information that an individual has been tested for HIV or has HIV/AIDs, must take reasonable steps to prevent that information from being disclosed. However, the information may be disclosed to a person involved in the provision of care of the patient, so long as it is relevant to the provision of such care.

Section 56 allows for disclosure of identifying information in certain other circumstances, including if there are reasonable grounds to suspect that failure to disclose the information would likely be a risk to public health. This allows for the Secretary of the Department of Health to identify and manage HIV positive individuals who pose a risk to the health of others, including (as a last resort) through public health orders that allow for the mandatory treating and detention of patients living with HIV.

Review of the Public Health Act 2010 (NSW)

NSW Health recently published a discussion paper on the review of the Public Health Act 2010 (NSW). The Ministry’s preliminary view is that HIV-specific confidentiality protections should be wound back. The paper notes several difficulties that stem from the confidentiality requirements for HIV notification:

  • De-identified notification increases the likelihood of duplicate testing and errors in notification, and impacts negatively upon the collection of epidemiological data, surveillance, and monitoring, and follow-up care of HIV positive patients;
  • Confidentiality requirements create a barrier to testing for HIV in combination with testing for other conditions as there are different consent procedures for HIV tests and other tests; and
  • They prevent healthcare professionals from being informed of patients’ HIV status where they are not providing treatment directly related to the patient’s HIV condition, but it would assist in providing care to know about the patient’s status (given that HIV and ART treatment have a range of health implications).

The policy of de-identifying HIV/AIDs notifications was first developed in the 1980s, at a time when most HIV infections occurred in gay men and there was considerable stigma and discrimination against the gay community and those living with HIV/AIDs. At that time, no effective treatment options were available for HIV/AIDs, making it a terminal condition. Many activists, clinicians, and community organizations were strongly against notification, and confidential notification provisions were adopted to encourage at-risk individuals to access HIV testing and care without fear of recrimination or discrimination.

The situation has changed significantly since then. Anti-retroviral therapy (ART) has made HIV a manageable, chronic condition, and has demonstrable benefits in preventing onwards transmission. Community attitudes towards the gay community and people living with HIV have changed considerably over the past 30 years, assisted by the introduction of laws that address discrimination and privacy concerns.

The discussion paper lists a number of benefits that would flow from rolling back HIV-specific confidentiality requirements:

  • Named notification would enable more accurate epidemiological data on HIV to be collected, for example, by allowing for better linking of HIV notifications with notifications of other conditions, which would assist with tracking and managing HIV co-infections; and
  • It would potentially allow better service provision and care of people living with HIV: one outcome would be that it would enable public health officers to follow up with HIV positive patients directly; liaise with clinicians; and refer people living with HIV to the relevant health services.

However, there is significant disagreement between NSW Health and HIV activists over whether named reporting would improve epidemiological data and access to care. Advocates argue that while named reporting may provide some benefit, this would be outweighed by its impact on privacy, testing, surveillance, and treatment.

HIV remains heavily stigmatized, and many people living with HIV continue to experience discrimination. These concerns are particularly relevant given that NSW criminalizes individuals with HIV (and other STIs) who fail to disclose their condition to their sexual partners.

Named reporting may deter people from being tested for HIV, particularly people from culturally and linguistically diverse backgrounds, recent migrants, highly sexually active men with multiple STIs, sex workers, and non-gay identifying men who have sex with men. People diagnosed with HIV may also be less willing to report sensitive personal information (e.g., injecting drug use), particularly if it could be used for law enforcement purposes. This would undermine the effective care of people living with HIV, as well as the quality of population-level data.

Advocates recognize that making information about a person’s HIV status, co-morbidities, and treatment regimen more widely available in clinical settings could improve care outcomes. However, they say that there are not enough examples of non-disclosure causing adverse effects to warrant the proposed changed, and the amendment would undermine the right of people living with HIV to disclose their HIV status to medical and healthcare workers at a time of their choosing.

Winding back “HIV exceptionalism”?

Writing on the legal environment of sexual health care practice, Roger Magnusson describes HIV as an “exceptional STI,” with unique legislation regulating counselling, diagnosis, and reporting of HIV. The central concerns of this legislation are the provision of supportive treatment and maintaining patient confidentiality.

Professor Magnusson describes how some countries are now winding back HIV exceptionalism, for example, in the US, CDC guidelines now recommend opt-out screening for all patients, i.e., patients are notified that screening will take place unless they decline consent. Some states, such as California, have adopted these recommendations, and while anonymous testing is still offered in many states, named HIV reporting is now the norm.

Notification of HIV/AIDs is a contentious subject, engaging issues around rights to privacy and autonomy, as well as on the role notification plays in data collection, testing, and treating. Many jurisdictions are streamlining the legal treatment of HIV testing with that of other infectious diseases; the question is whether NSW will – or should – do the same.

Advancing global and national health security: lessons from SARS and MERS to Ebola and Zika

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Public seminar announcement

Over the past decade, the world has faced a series of global health crises involving contagious diseases with pandemic potential.

From novel influenzas (H5N1 and H1N1), coronaviruses (SARS, and MERS) to the Ebola and Zika viruses, governments and international organisations have struggled to act quickly and decisively.

The consequences loom large in both economic and human terms.  Modelling by the Institute of Medicine suggests that the economic costs of a 21st-century pandemic could exceed USD$60 billion annually, placing pandemic disease in a category similar to war, terrorism and financial crises.

Despite this, global investments in risk mitigation frameworks for pandemic disease remain inadequate and leave countries exposed to significant disruption, financial harm, and avoidable mortality.

Professor Lawrence Gostin, the Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University, Washington DC, has served on two high-level commissions inquiring into the lessons learned from the 2015 West Africa Ebola epidemic.  These are the Commission on a Global Health Risk Framework (National Academy of Sciences, supported by WHO, World Bank, Gates Foundation, and Rockefeller Foundation), and the Independent Panel on the Global Response to Ebola (Harvard University/London School of Hygiene and Tropical Medicine).

Professor Gostin and colleagues will speak on global and national legal frameworks for responding to contagious epidemics at Sydney Law School on Wed 20 July, 6.00-7.30pm.  Click here for further details.

In this seminar, Professor Gostin will reflect on lessons learned from the several expert commissions into the Ebola epidemic and global health risk framework.  This will be followed by short responses from three Australian experts in the field.

In his keynote presentation, Professor Gostin will argue that the lessons from past epidemics point to three key drivers of change: national health systems, the World Health Organisation (WHO) and UN System reform, and accelerated research and development.

ach of these drivers of change requires system-wide accountability mechanisms to improve their performance and to reduce the human and economic cost of future epidemics.

To book online for this seminar, click here.

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  For further details, click here, and here.

How should we talk about weight?

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Journalist Lindy West on her wedding day. Image from:


In a lot of ways, I’m reluctant to publish this blog post. It’s not a topic I’m an expert on, and academics are generally cautious about writing on something they haven’t researched, due to the fear of being shredded by someone with a PhD and 20 years’ experience in the field.

I’m also worried about making things worse, about saying the wrong thing and invoking the collective ire of the Internet #trolls.  This is also the kind of topic where it’s difficult not to take sides or to admit that you don’t have all the answers, because it’s so polarizing. But I’ve got a question I want to get it off my chest. How do we – as public health advocates, as a community, and as individuals – talk about weight?

This question has been bugging me for a while, but especially since I wrote an opinion piece (with Alexandra Jones) in the Medical Journal of Australia talking about the need for better nutrition policy in Australia. One of the readers of my article cautioned me about the need not to conflate nutrition and weight: people can be “overweight,” but eat well, feel good and live healthy lives.

Her comments immediately reminded me of a podcast that I’d listened to recently on This American Life, which discussed how people are starting to think differently and talk differently about body weight. Among the stories was one from Lindy West, a US journalist, feminist and fat acceptance activist on how she confronted her boss about his some of his reporting on the “obesity epidemic.” Other stories in the podcast described saddening and horrifying accounts of the discrimination, stigma, and sub-par medical care that people experience because of the way society perceives and treats people who fall outside what is considered a desirable weight range.

The reporting that Lindy West was concerned with seemed laced with personal prejudice. Yet it’s not uncommon for stigma to be considered as a tool to convince people to lose weight. The UK’s former public health minister once said that doctors should tell their patients that they are “fat” rather than “obese” to better motivate them to lose weight and to take “personal responsibility” for their lifestyles.

Stigmatizing language (and behavior) is never acceptable. A growing body of research shows that stigma tends to demotivate people to lose weight or change their eating habits. Stigma is also linked to negative health outcomes, including poor mental health and low self-esteem.

Even if it did result in public health gains, stigma can’t be justified given the negative impact it has on individuals’ health, wellbeing and self-perception.

However, the problem goes beyond stigmatizing, discriminatory, and shaming language. As Lindy West explains, it’s also about being constantly bombarded by apparently scientific or “objective” messages that obesity is a “crisis,” that having a high BMI is undesirable and unhealthy, and that people who are “fat” are a drain on the healthcare system. Many people will understand the pressure to achieve a “desirable” weight, and what it does to self-esteem, and the fat acceptance movement is, in part, a push back against this kind of messaging.

So should we talk about weight at all? Could the public health message simply be “eat well and move often?” (And when I talk about moving I mean dancing, going for a walk with friends, or whatever else takes your fancy, not boot camps and chin-ups). A lot of my research targets the food industry and focuses on how food is made and sold. I want to improve the food system, not tell people to eat less chocolate.

From a public health advocates’ perspective, the problem is that a certain amount of excess body weight is a risk factor for chronic disease, as well as being associated with a range of health conditions. One of the main reasons why we focus on promoting and facilitating healthy eating is because weight gain has effects on people’s health.

Public health advocates know that body weight isn’t simply a question of people cramming Tim Tams into their faces while simultaneously watching Netflix and drinking two litres of soft drink (or “soda” for the Americans out there). It has a lot to do with genetic and physiological make-up, as well as whether we have the kinds of social, cultural, and economic environments that make good food easy to access and affordable, where healthy eating is valued, and is possible. Public health shouldn’t be about fat shaming, but even what seems like a relatively neutral message may have that effect. The concern for public health advocates, however, is that we will lose one of the main health messages behind our work if we take the word “weight” out of the picture.

Yes, we can think about using language more carefully when we convey information about weight and health, but is that enough? Would it be more helpful if we stopped talking about weight altogether, or – as Lindy West suggests – we stop seeing it as a problem? We should keep in mind here that most people on diets fail to lose weight and keep it off, that there are difficulties in defining what a healthy weight actually is (and what tools are useful in categorizing weight), and that there are socioeconomic and ethnic differences in population weight distribution. Most of the time, fat shaming will also mean shaming poorer people and people of color (with the shaming being done by middle-class, white people).

Also, evidence of a connection between weight and increased mortality and morbidity is not all one way. We are still untangling the complex connections between body weight and health (remember, correlation is not necessarily causation). Even within the public health community there are debates about whether body weight is the crisis that we make it out to be.

So what’s the answer here? To be honest, I don’t know. I hope we haven’t lost the opportunity to have a constructive conversation about how we talk about weight (or if we should talk about it at all).  I can’t pretend to be an expert on the topic, and while I’ve had issues related to eating and my weight, I’ve never experienced the type of discrimination that Lindy West and others describe. But listening to her, and hearing from other people with similar experiences, makes me think we could – and should – do better.

Thanks to Alex Bayley for the comments and resources she provided for this post. All the opinions expressed here are mine, as are any mistakes or misconceptions.

Democracy is not a spectator sport: more on campaign finance and public health

Picture1Mike Daubes tie 2

In October 2015, at the Oceania Tobacco Control Conference, Professor Mike Daube, one of Australia’s best-known public health advocates, gave the closing address.

He wore a tie given to him some years ago by an American colleague.  It read: “Democracy is not a spectator sport”.

On the back were the words: “Made exclusively for Philip Morris”.

The tie had been sent to all member of Congress.


A seat at the table

Like other business groups, tobacco companies want to be “part of the process”, to have a seat at the table.  In the words of the CEO of one Australian tobacco company:

“The purpose [of political donations by tobacco companies] is to make sure the democratic process is working and to get access, so we can have a seat at the table…. I think it’s really important that people fund democratic parties so that they can exist. Otherwise they cease to exist, they take the money from the public purse.  I think it’s a really strong part of democracy that political parties are allowed to raise funding from their constituency…the only caveat I would make to that is it has to be absolutely transparent.”

RM: But is that what a political donation buys?

“…you know, you get to [go to a lunch where a Minister is speaking] and you get to have a chat with him and say, ‘how are you?’ And you get to know the people and the players in the market; otherwise you never have any human contact, [which makes it] incredibly hard to be part of the process.”

In Australia, the High Court has ruled that freedom of political communication on matters of politics and government is implied by the Australian Constitution and is “an indispensable incident of the system of representative government for which the Constitution provides”.

But should this freedom translate into a right for tobacco, alcohol, gambling, and other corporations to make large donations to political parties in order to strengthen alliances and to influence political and policy processes?

If the capacity to make political donations acts as a social lubricant which facilitates access and relationship building, where should the line be drawn in denying access to certain industries?

As noted in a previous post, in McCloy v New South Wales [2015] HCA 34 (7 October 2015), the High Court considered the constitutional validity of provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which impose caps on political donations and electoral communications expenditures.

The same Act prohibits property developers, tobacco industry business entities, and liquor or gambling industry business entities from making political donations at all.

In McCloy, a property developer argued that the freedom to “build and assert political power”, by making substantial political donations with the intention of achieving access to politicians, was an aspect of the implied freedom of political and government communication.

The plaintiff argued that as a result, the caps on political donations imposed by the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (ss 95A-95B) were inconsistent with the Constitution and therefore invalid.

This post briefly summarises key aspects of the reasoning adopted by French CJ, Kiefel, Bell and Keane JJ, who joined in the majority judgment.


Freedom of political and government communication in Australia

In an earlier case which had considered a different section of NSW’s Election Funding Act, five Justices of the High Court reaffirmed that, unlike the First Amendment to the United States Constitution, the implied freedom of political communication is not a personal right which restricts legislative power in accordance with the measure of a constitutionally protected individual freedom of persons to express themselves.

In Unions NSW the High Court accepted that the freedom of political communication protects the discussion of political and government matters at federal, state and local levels (Unions NSW [25]).

In McCloy, the majority summarised the approach that the Court takes when it considers the validity of legislation – in this case NSW’s Election Funding Act.

The first question is to consider whether the specific provision in dispute “effectively burdens the freedom of political communication either in its terms, operation or effect” (Unions NSW [35]).

The High Court accepted that irrespective of the legitimacy of the purpose of the Election Funding Act, the provisions in dispute did effectively burden the implied freedom of communication because they reduced the funding available to political parties and candidates (Unions NSW [38]; McCloy [30]).

Given this conclusion, the next question was whether the provisions of the Act that were in dispute were proportionate or served a legitimate purpose in a way that was compatible with the system of representative government prescribed in the Constitution ([Unions NSW [44]).

Identifying whether legislative provisions serve a legitimate purpose requires the court to identify the statutory purpose(s) that the relevant provisions seek to achieve (McCloy [31]).


Caps on political donations

The majority accepted that the caps on political donations were intended to prevent corruption and undue influence within the government of the state.  They were also directed to overcoming perceptions of corruption and undue influence, which could in turn undermine public confidence in government (McCloy [33]-[34]).

The majority accepted that large political donations by wealthy donors may dominate the flow of political communication, drowning out other voices and undermining “equality of opportunity to participate in the exercise of political sovereignty” (McCloy [45]).  In their majority judgment, French CJ, and Kiefel, Bell and Keane JJ pointed out that the capping of political donations was not only compatible with the system of representative government established by Australia’s constitution, but preserved and enhanced it [47].

Mike Daubes tie 2


Prohibited political donors

The Election Funding Act also prohibited donations by property developers, tobacco, alcohol and gambling business entities.

Pointing to no fewer than 8 reports about corruption in the planning process published by the NSW Independent Commission Against Corruption (ICAC) and other bodies, the majority accepted that planning decisions may involve the risk of undue or corrupt influence that is “greater than in other areas of official decision-making”.

The prohibition on donations from property developers was upheld as being directed to a legitimate purpose.

The majority went on to consider whether there were “alternative, reasonably practical means” of achieving the legitimate purpose of reducing the risk of corruption and undue influence, by means other than the capping provisions and the prohibited donor provisions.  This step is required because any restriction of the implied freedom of political communication must be justified (McCloy [68]).

The majority Justices emphasised that considering “alternative means” does not mean that the Court will substitute its own judgment for the political judgment of Parliament (McCloy [58]).  Rather, the court considers proportionality by considering:

  • whether there is a “rational connection between the provision in question and the statute’s legitimate purpose” (McCloy [80]);
  • whether there are “other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom” [81], and thirdly
  • whether the effect of the legislative provision on the freedom is “undue”.

This third step necessarily involves a value judgment: the court must weigh the “public importance of the purpose sought to be achieved” [86]. The greater the restriction on the implied freedom of political communication, the “more important the public interest purpose of the legislation must be [in order] for the law to be proportionate” [87].

In this case, the majority recognised the public interest in removing both the risk of corruption, and perceptions of corruption.

On the other hand, the caps on political donations, and the prohibitions on political donations by certain entities did not prevent people from seeking access to politicians or from communicating with others about matters of politics and government.  For these reasons, the majority upheld the constitutional validity of the “capping” and “prohibited donor” provisions in the Election Funding Act.

This bodes well for any potential challenge to legislation prohibiting donations from alcohol, tobacco and gambling business entities.


In summary

The Unions NSW and McCloy cases confirm that the power that companies and business associations might seek to exercise over the political process in Australia is not unchecked.

Corporations do not have rights of commercial speech that are protected by the Constitution.  The Australian Constitution protects freedom of political communication, but it does not protect the specific commercial interests of particular companies in having their voices heard, including through advertising.

Secondly, neither corporations nor individuals have personal rights “to communicate” about regulatory matters relating to their business in the sense that legislation infringing those rights will be invalidated.  Rather, the question will be whether legislation enacted by Parliament is invalid because it “effectively burdens the freedom of political communication either in its terms, operation or effect” (Unions NSW [35]).  Even when it does, such legislation will be upheld when it is proportionate or serves a legitimate purpose such that it is compatible with the system of representative government prescribed in the Constitution ([Unions NSW [44]).

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Campaign finance: a neglected public health issue


Enjoying the Australian election?  Of course you aren’t.

But campaign finance and political donations are a neglected public health issue.

A few years ago I asked the Chairman of an Australian tobacco company “Why do you do it? Why give political donations at all?”

“[F]or the same reasons as Westfield or anyone else”, he answered.  “We think it doesn’t hurt access. Of course it doesn’t.”

“It doesn’t buy favours but it gives you personal access to the [politicians]?”

“You know, the notion that $100,000, and we’re not talking millions, we’re talking hundreds of thousands, gives you much of anything is really just bizarre.  I mean…”

“Is it noticed?  Does it get you a cup of coffee and 15 minutes or is it just irrelevant?”

“Is it absolutely irrelevant?  No. The truth is, government departments see stakeholders.  [I]f we gave no money or if we gave $1 million to whatever the party is that happens to be in power, the Health Department will accept our submissions about the latest packaging restriction or whatever.  Will it take more notice of us because we give them $1 million?  I think the answer is clearly no….people are aware it’s such a small amount of money”.

Later on:

“The reason we do it is because we are obviously a highly regulated industry and … on balance, we think it’s worth doing.  Would it make any difference if we didn’t?  I doubt it.  It probably would make it a bit harder to call up the minister and get, get access…”

This kind of politicking raises an important question.  Why should industries that harm and destroy health have privileged access to politicians and greater influence on public policies – simply because they have more money?


Restrictions on political donations in NSW

This post briefly reviews restrictions on political donations under NSW law.

Under Commonwealth law, there is no limit for donations to political parties and candidates for political office, although donors must disclose donations above the disclosure threshold (currently $13,000 for the year to 30 June 2016) to the Australian Electoral Office (Electoral Act 1918 (Cth) ss 305A-305B).

In New South Wales, on the other hand, Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 imposes restrictions on political donations and electoral expenditure.  The purpose of these restrictions is to “prevent corruption and undue influence in the government of the State” (s 4A).

Except where specified, the Act extends to both State and local government elections.

There are 5 main restrictions.

Firstly, the Act requires the disclosure of “reportable” political donations and electoral expenditures (as defined) to the NSW Electoral Commission (ss 86-87, 92-93).  The Commission is required to make these disclosures publicly available on its website (s 95).

Secondly, the Election Funding Act imposes caps on political donations (ss 95A-95B) and on “electoral communication expenditures” during the run-up to State elections.  This is known as the “capped expenditure period” (ss 95F, 95H-95I).

For the year ending 30 June 2016, political donations to a registered political party are limited to $5,800, and $2,500 for an elected member or political candidate.  Current caps on electoral communications expenditure are shown here.

However, the restrictions on political donations do not apply to gifts intended for private use by a Member of Parliament (s 85(4)), nor does the cap apply to expenditure by a wealthy politician or candidate on their own campaign.

Although caps on political donations and electoral communications expenditures affect the finances of election campaigns, this is offset by Part 5 of the Act, which regulates public funding of NSW election campaigns.

Thirdly, in addition to caps on political donations and electoral communication expenditure, the Act prohibits a range of “indirect campaign contributions” (s. 96E).  These include the provision of office accommodation, computers or other equipment which are to be used substantially or wholly for election campaign purposes.  It also includes the waiving of payment for electoral advertising expenditure, although this does not apply to the provision of voluntary labour.

Fourthly, in order to remove perceptions that foreign political donors can unduly influence the political process, the Election Funding Act states that political donations can only be accepted from individuals enrolled to vote in the State, or from corporate entities that are either registered to operate a business in Australia or who have an executive officer living in Australia (s 96D).

Finally, the Act prohibits certain donors from contributing to a candidate, politician, or political party at all.  Prohibited donors include: a “property developer”, a “tobacco industry business entity”, a “liquor or gambling industry business entity”, or an industry association representing the donors listed above.

The definition of prohibited donors include “close associates”, including company officers, related bodies corporate, and significant shareholders of property developer, tobacco, liquor and gambling companies (s 96GAA, 96GB).

It is unlawful for a prohibited donor to make a political donation in NSW (s 96GA).

LA 2015

Campaign finance legislation tested in court

In McCloy v New South Wales [2015] HCA 34 (7 October 2015), a property developer challenged the constitutional validity of those provisions of the Election Funding Act that prevent property developers from making contributions in excess of the cap to a political party.

The plaintiffs included a property development corporation, and a director and close associate of such a company who argued that the ability to make substantial political donations in order to gain access to politicians is an aspect of Australia’s implied constitutional freedom of political communication.

Six of the seven justices concluded that the caps on political donations, and the prohibited donor provisions were not invalid by virtue of infringing the implied freedom of communication on government and political matters that is recognised by the Commonwealth Constitution.

This case has interesting implications for political spending by corporations whose business activities come at a cost to public health.

The McCloy case will be discussed in a later post.