Page:JT International SA v Commonwealth of Australia.pdf/84

Heydon J

The second sentence asserted that the imposition of new restrictions on use took away nothing proprietary. But the restrictions left the proprietors with no rights in relation to the retail sale of packets of cigarettes except the right to use their "brand, business or company name".

The third sentence stated that no pre-existing right of property had been diminished. But all the proprietors' intellectual property had been rendered completely worthless, and the right to use the space on the packets had disappeared.

The fourth sentence asserted that no property had been taken. But a central element of proprietorship, control, had been taken and employed by the Commonwealth as a step in the fulfilment of its own purposes.

The Commonwealth legislation prohibited the presence on the cigarette packets and cigarettes of the proprietors' trade marks. By analogy with Deane J's example in the Tasmanian Dam Case, this gave the Commonwealth the benefit of that space, free of the offending marks. On Deane J's view, this would have been an "effective confiscation or acquisition" of the space even if the Commonwealth had no right actively to use it. But in the impugned legislation the Commonwealth went further. The impugned legislation compels the presence on the packets of the Commonwealth's and Quitline's messages. The prohibitions on the proprietors thus confer on the Commonwealth and another (ie Quitline) an "identifiable and measurable advantage" relating to the ownership or use of property within the meaning of Deane J's words.

In effect, the Commonwealth has said to the proprietors through the TPP Act: "You have been controlling your intellectual property and your chattels with a view to making profits in your businesses; I want to stop you using the intellectual property in very large measure, and command you as to how you are to use what is left of your property, not with a view to making profits in your businesses, but with a view to damaging them by making the products you sell unattractive; I will therefore take over control of your intellectual property and chattels from you." That control is a measurable and identifiable advantage relating to the ownership or use of property. It enlivens the s 51(xxxi) guarantee.

The Commonwealth argued that it had not acquired property. Rather, it had attempted to reduce the appeal of tobacco products. It had attempted to increase the effectiveness of health warnings, thereby reducing the potential for