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Crennan J

93.

Commonwealth and ICM Agriculture Pty Ltd v The Commonwealth[1]. The provisions of the Packaging Act which affect the plaintiffs' property do not effect a transfer, to the Commonwealth or any other person, of the plaintiffs' rights in their trade marks, product get-up, or associated goodwill, rights (as chattel owners) to cigarette packets or cigarettes, or, in the BAT proceedings, rights in the copyright work, registered design or patent. The plaintiffs acknowledged that there was no formal deprivation of these rights but contended that they had been "in a real sense … stripped of the possession and control"[2] of their property.

In Dalziel[3], reg 54 of the National Security (General) Regulations (Cth) gave the Minister an exclusive right to possess and use land for an indefinite period, if expedient to do so, for wartime purposes. The regulation was used to exclude the tenant of certain vacant land in Sydney, Mr Dalziel, and was found to contravene s 51(xxxi)[4]. In the Banking Case[5], provisions of the Banking Act 1947 (Cth) which authorised the Treasurer of the Commonwealth "to assume control of the business"[6] of a private bank by appointing directors who were nominees of the Commonwealth were found to contravene s 51(xxxi) because, in the words of Dixon J, the scheme was "but a circuitous device to acquire indirectly the substance of a proprietary interest"[7].

In Newcrest[8], proclamations made under provisions of the National Parks and Wildlife Conservation Act 1975 (Cth) were found to contravene s 51(xxxi). That Act prohibited mining in Kakadu National Park and vested Commonwealth interests in the Park, except for its interests in minerals, in the Director of National Parks and Wildlife. A proclamation under the Act which

  1. ↑ Wurridjal v The Commonwealth (2009) 237 CLR 309 at 360–361 [90] per French CJ; ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 196 [132] per Hayne, Kiefel and Bell JJ, 215 [190] per Heydon J; [2009] HCA 51.
  2. ↑ Banking Case (1948) 76 CLR 1 at 349 per Dixon J.
  3. ↑ (1944) 68 CLR 261.
  4. ↑ (1944) 68 CLR 261 at 284-287 per Rich J, 289–290 per Starke J, 295–296 per McTiernan J, 305 per Williams J.
  5. ↑ (1948) 76 CLR 1.
  6. ↑ (1948) 76 CLR 1 at 344 per Dixon J.
  7. ↑ (1948) 76 CLR 1 at 349. See also Newcrest (1997) 190 CLR 513 at 595 per Gummow J.
  8. ↑ (1997) 190 CLR 513.
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