Summary
Three vaping related businesses were unsuccessful in challenging regulations setting the maximum permissible nicotine concentration in vaping products.
Background
In 2020, Parliament amended what is now the Smokefree Environments and Regulated Products Act 1990 (“Act”) by including vaping-related products as ‘notifiable products’ under the Act. Section 84(1)(a) of the Act allows the Governor-General to make regulations prescribing safety requirements for notifiable products.
The applicants were three related companies that manufacture, import and sell vaping products.
On 11 August 2021, The Smokefree Environments and Regulated Products Regulations 2021 (“Original Regulations”) came into effect. The applicants had challenged the validity of these regulations in earlier proceedings.
While these proceedings were afoot, the government began enacting regulations to correct defects in the Original Regulations (“Amendment Regulations”) that had been brought to their attention as a result of the legal proceedings. The Amendment Regulations reduced the maximum allowable nicotine concentration in certain vaping products from 50mg/mL to 28.5mg/mL.
Upon learning this, the applicants filed judicial review proceedings claiming that the Amendment Regulations were unlawful.
The case
The Amendment Regulations are secondary legislation. Secondary legislation is law made by someone other than Parliament, usually under the authority of an empowering Act of Parliament. The making of secondary legislation is amenable to judicial review in the same way as any other exercise of power by a public decision-maker.
When the Governor-General makes secondary legislation, they act on the advice of the responsible Minister, formally conveyed through the Executive Council.
The applicants’ challenge to the Amendment Regulations was based on a number of judicial review grounds. Broadly, these were based on inadequate consultation and a lack of evidence of a link between nicotine concentration in vaping products and resulting user harm.
Inadequate consultation
The applicants claimed that the Minister was required to consult with them prior to making the Amendment Regulations (as representatives of the industry to be regulated) and had failed to do so. They also alleged that their consultation with various other groups had been inadequate.
The court held that there was no legal duty to consult in the circumstances. They affirmed that there was no general duty to consult in the absence of express statutory language, other than in cases where a particular individual had a legitimate expectation of being consulted(as they have special circumstances that differentiates them from the general public).
As the Act said nothing about consultation when making regulations under s 84(1)(a) (in contrast to other powers under the Act which did require consultation), the court inferred that Parliament did not intend a consultation requirement. The circumstances of the applicants were not sufficient to give rise to a legitimate expectation of consultation.
Accordingly, the applicants’ claim failed on this ground. Consultation was described as a ‘healthy practice’ but not a mandatory requirement in the circumstances.
Lack of evidence of correlation between nicotine concentration and harm
The applicants advanced a number of grounds relating to the Amendment Regulations being contrary to expert evidence. The applicants argued that the expert position was that there was no correlation between nicotine concentration in vaping products and the level of resulting harm.
The applicants argued that the Governor-General had made the regulations without considering the expert evidence they relied on, which they argued was a mandatory relevant consideration. The court rejected this argument, holding that Governor-General (and Executive Council which advised them) were concerned with high level public policy only, and were not obliged to consider technical expert evidence when making secondary legislation.
The applicants made a related argument that the Amendment Regulations were unreasonable or were ultra vires (‘outside the power of’) the Act because they went against the weight of expert evidence. If, as the applicants alleged, there was no link between nicotine concentration and harm, the Amendment Regulations could not rationally fall within the scope of the power to ‘prescribe safety requirements’ for vaping products.
The court emphasised that judicial review ground of ultra vires was concerned with whether the secondary legislation complied with the empowering Act, not the court’s assessment of its merit. Secondary legislation would exceed the scope of the empowering Act if it was not rationally connected to the purpose of the empowering provision. However, if this unexacting requirement is satisfied, a court would not entertain a challenge to secondary legislation merely because it viewed the evidence as pointing in a different direction.
In this case, the court held that this rationality requirement was satisfied. The Minister had acted in good faith and the evidence was “capable of supporting” a link between nicotine concentration and harm. Accordingly, the Amendment Regulations “were not totally irrational” and the applicants’ challenge on this ground failed.
Result
The court rejected the applicants’ claim on all grounds and the Amendment Regulations remained in force.
The decision clarifies some important points about judicial review of secondary legislation, including that:
For further information on this case or similar issues please contact Director Brigitte Morten
