French CJ
4.
otherwise than on just terms[1]. Section 15(2) provides that if, apart from s 15, the TPP Act would result in such an acquisition of property because it would prevent the use of a trade mark or other sign on or in relation to retail packaging of tobacco products, the trade mark or sign may be so used. The validity of that subsection was challenged by BAT. It is sufficient to say that I agree with Gummow J[2] that the challenge fails, s 15(2) being a valid severability provision akin to s 15A of the Acts Interpretation Act 1901 (Cth).
Chapter 3 of the TPP Act creates offences and provides for civil penalties[3]. A summary of its terms appears in the judgment of Gummow J[4].
The TPP Regulations
The TPP Regulations specify physical features of retail packaging of tobacco products[5], including their dimensions[6], their colour and finish[7], and the permitted use of trade marks or marks[8]. The only permitted marks are origin marks, calibration marks, a measurement mark and trade description, a bar code, a fire risk statement, a locally made product statement and a name and address[9]. Division 2.4 provides for the appearance of names on retail packaging of cigarettes, and Div 2.5 for marks and tear strips on wrappers. Part 3 relates to the requirements for the appearance of tobacco products.
The Tobacco Plain Packaging Amendment Regulation 2012 (No 1) (Cth) ("Amendment Regulations") provides that retail packaging of tobacco products may include an adhesive label bearing a health warning that complies with either
- ↑ TPP Act, s 15(1). By s 15(3) specific examples of that non-application would allow a trade mark or other sign to be used in relation to retail packaging of tobacco products or on tobacco products despite any other provision of the Act.
- ↑ Reasons of Gummow J at p 32 [97]–[99].
- ↑ TPP Act, ss 30-50.
- ↑ Reasons of Gummow J at p 30 [90].
- ↑ TPP Regulations, Div 2.1.
- ↑ TPP Regulations, reg 2.1.1.
- ↑ TPP Regulations, Div 2.2.
- ↑ TPP Regulations, Div 2.3.
- ↑ TPP Regulations, reg 2.3.1.
