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Heydon J

"We were invited by the Solicitor-General to hold that a law whose effect is to provide for the acquisition of property is not a law with respect to the acquisition of property when it also happens to be a regulatory law which prohibits and penalizes obnoxious or undesirable trade practices by corporations. The argument accompanying this invitation was rather elusive."

Mason J rejected the argument. It did not prevail. Yet it was repeated in these cases in relation to "obnoxious or undesirable" tobacco advertising practices.

In 1993, in Georgiadis v Australian and Overseas Telecommunications Corporation, another Solicitor-General submitted that the expression "just terms" is an expression which "extends to what is fair, taking into account the interests of the community." That submission did not prevail either. It was specifically rejected by Brennan J. Yet it was repeated in these cases.

These are just minor examples of a common characteristic of's 51(xxxi) litigation–that the Commonwealth repeats arguments it has advanced in earlier cases over many years, despite their failure, and often their repeated failure.

After a "great" constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth's hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.

In JT International SA v Commonwealth of Australia, there should have been an order declaring that the Tobacco Plain Packaging Act 2011 (Cth) is invalid (apart from s 15, as to which it is unnecessary to decide) and an order that the defendant should pay the plaintiff's costs.

In British American Tobacco Australia Ltd v Commonwealth of Australia, the questions reserved should have been answered:

1. Yes.

2. No.