French CJ
10.
- what, property of the plaintiffs or any of them otherwise than on just terms, of a kind to which s 51(xxxi) of the Constitution applies?
- Does the resolution of question (1) require the judicial determination of any and if so what disputed facts following a trial?
- If the answer to question (1) is "yes" are all or some, and if so which, provisions of the TPP Act in whole or in part beyond the legislative competence of the Parliament by reason of s 51(xxxi) of the Constitution?
- Are all or some, and if so which, provisions of the TPP Act in whole or in part beyond the legislative competence of the Parliament by reason of the matters raised in paragraphs 10–12 of the statement of claim?
- What order should be made in relation to costs of the Questions Reserved?"
The affected rights
JTI and BAT contended that the TPP Act would effect an acquisition of their property on other than just terms contrary to the guarantee provided by s 51(xxxi) of the Constitution. The categories of property rights said to be affected appear from the pleadings. In the case of JTI, they are its registered trade marks and get-up. In the case of BAT, they are its registered and unregistered trade marks, copyright, get-up, licensing goodwill, design, patents, packaging rights, packaging goodwill and intellectual property licensing rights.
Section 51(xxxi) confers upon the Commonwealth Parliament the power to make laws with respect to:
"[t]he acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".
It uses the term "property" which appears in a number of places in the Constitution[1]. As used in s 51(xxxi) it has long been construed broadly by this Court[2]. It extends to property rights created by statute although the terms of such statutes and the nature of the property rights which they create require
