Page:JT International SA v Commonwealth of Australia.pdf/85

Heydon J

retail packaging to mislead and improving (local) public health. And it had attempted to give effect to Australia's international obligations. The Commonwealth submitted that the benefits it derived from those attempts were not benefits in the nature of property. The problem is that acquisition is not prevented from being acquisition merely by reason of its purposes. Here the Commonwealth's purposes were achieved by nullifying many of the proprietary rights of the proprietors and passing to the Commonwealth the corresponding benefits and advantages relating to the ownership or use of property–particularly control over the appearance of the cigarettes and their packaging. That control was as intense and ample as that which the proprietors had formerly enjoyed.

The Commonwealth also relied on the gratuitous character of the Quitline services as negating the proposition that an acquisition occurred. However, the nature of Quitline's services is beside the point. It does not affect the question whether Quitline only got into a position to advertise those gratuitous services on cigarette packets because of an acquisition.

Finally, the Commonwealth submitted that:

"it is an 'acceptable explanation or justification' placing an acquisition of property without compensation outside the scope of s 51(xxxi) if the acquisition of property without compensation is no more than a necessary consequence or incident of a restriction on a commercial trading activity where that restriction is reasonably necessary to prevent or reduce harm caused by that trading activity to members of the public or public health."

The Commonwealth said that any acquisition here was "no more than consequential or incidental to the legislative indication of a compelling public interest by narrowly tailored legislative means".

If this were correct, s 51(xxxi) would have a quite narrow operation. Rights of private property would be much more at risk at the hands of the Commonwealth Parliament. The elements of the postulated test are so vague that it would very often be satisfied. Yet if the test is sound, why should it not be wider? If the stated principle is correct, why should it be limited to harm to members of the public or to public health? Why should it not apply to all of the worthy goals which the Commonwealth legislature has constitutional power to further in the public interest?

The existence of a regulatory goal is not decisive of the question whether the pursuit of that goal involves a s 51(xxxi) acquisition. "The guarantee contained in's 51(xxxi) is there to protect private property. It prevents expropriation of the property of individual citizens, without adequate