Page:JT International SA v Commonwealth of Australia.pdf/73

Heydon J HEYDON J. There is no doubt that a law which affects subsisting exclusive intellectual property rights can attract s 51(xxxi) of the Constitution. The issue is whether the laws impugned in these proceedings affect rights of that kind in a manner which does attract s 51(xxxi). The rights in question are intellectual property rights and rights over chattels, namely cigarette packets and cigarettes. The rights are owned by certain tobacco companies ("the proprietors").

In approaching s 51(xxxi) it is necessary to remember three matters. One is its extreme importance. Another is the width with which it is to be construed. The third is the importance of preventing an "effective deprivation … of the reality of proprietorship" evading s 51(xxxi) by a "circuitous device to acquire indirectly the substance of a proprietary interest without at once providing … just terms". The question to be applied to the impugned legislation can be put thus :

"None of the provisions … is expressed in direct language as effecting an acquisition of any property. However, the question is whether, even if not formally, the [proprietors] effectively have been deprived of 'the reality of proprietorship' by the indirect acquisition, through the collective operation of the [impugned provisions], of 'the substance of a proprietary interest'."