Page:JT International SA v Commonwealth of Australia.pdf/17

French CJ

have rights of use of this "Get-up" capable of being enforced by an action for passing off or for misleading or deceptive conduct.

JTI asserted that its rights in the trade marks and their get-up are "property" for the purposes of s 51(xxxi) of the Constitution. It claimed that the provisions of the TPP Act constituted an acquisition of its property otherwise than on just terms and, but for s 15, would be wholly invalid and of no effect.

The Commonwealth admitted that the trade mark was property but denied that characterisation with respect to the get-up and rights said to be associated with it. It pleaded that both the trade mark rights and the get-up rights were, in any event, susceptible to regulation including, in particular, under Commonwealth laws of the kind in the TPP Act. The Commonwealth denied that any of the matters alleged in JTI's statement of claim established that the TPP Act effected or would effect an acquisition of property otherwise than on just terms to which s 51(xxxi) applied.

The Commonwealth pleaded that the consumption of JTI's tobacco products and the tobacco products of other manufacturers, importers and distributers is harmful to the public and to the public interest. The Commonwealth also asserted the existence of "a rational and/or cogent basis" for concluding that the plain packaging of tobacco products would reduce their appeal to members of the public and increase the effectiveness of health warnings on the retail packaging of the products. It was also asserted that such packaging would also reduce the ability of the retail packaging of tobacco products to mislead members of the public about the harmful effects of smoking. The JTI demurrer

In its reply to the defence, JTI demurred on the following grounds:

1. Its trade marks and the get-up constitute "property" within s 51(xxxi) of the Constitution.

2. The TPP Act would, apart from s 15, result in an acquisition of that property within s 51(xxxi) of the Constitution.

3. That acquisition would be otherwise than on just terms.