Page:JT International SA v Commonwealth of Australia.pdf/80

Heydon J

and patent of one proprietor, and the trade marks of another, were "property" within the meaning of s 51(xxxi). Secondly, the fact that the rights in question affect the public interest, and have often been regulated in the public interest, does not establish that they are not property. Thirdly, there is much authority against the Commonwealth's submission. Fourthly, all common law rules, and all statutes in a field over which the Commonwealth has legislative power, are capable of being modified or extinguished by a Commonwealth statute. Yet not all common law and statutory rights are viewed as inherently susceptible to modification or extinguishment. The submission did not offer any test for distinguishing between what was inherently susceptible and what was not.

The Commonwealth also submitted that the impugned legislation could not "take" any property in any tobacco products or their retail packaging to be manufactured and sold after the legislation commenced. That was said to be because the products did not yet exist. That submission must fail. Section 51(xxxi) extends to a law which applies to property as it is acquired from time to time in the future.

Finally, the Commonwealth submitted that there was no property in the goodwill generated by the get-up of tobacco products because it was only the product of the proprietors' freedom to trade, and's 51(xxxi) does not protect the general commercial position of traders. However, once trading activity has generated goodwill in get-up sufficiently for it to be protected by injunction, it does not depend merely on freedom to trade. Rather, it depends on the propensity of customers to return in future–goodwill. The images and marks which constitute get-up help maintain that propensity, and incapacity to use them damages goodwill.

Though the TPP Act left formal ownership of the proprietors' property with them, it deprived them of control of their property, and of the benefits of control. The TPP Act gave that control and the benefits of that control to the Commonwealth.