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French CJ

11.


examination to determine whether and to what extent that property attracts the protection of s 51(xxxi). As the plurality cautioned in Attorney-General (NT) v Chaffey[1], further analysis is imperative where the asserted "property" has no existence apart from statute[2].

There are and always have been purposive elements reflecting public policy considerations which inform the statutory creation of intellectual property rights. The public policy dimensions of trade mark legislation and the contending interests which such dimensions accommodate were referred to in Campomar Sociedad, Limitada v Nike International Ltd[3]. The observation in that case that Australian trade marks law has "manifested from time to time a varying accommodation of commercial and the consuming public's interests"[4] has application with varying degrees of intensity to other intellectual property rights created by statute. Intellectual property laws create property rights. They are also instrumental in character. As Peter Drahos wrote in 1996, their proper interpretation does not depend upon "diffuse moral notions about the need to protect pre-legal expectations based on the exercise of labour and the creation of value."[5] The statutory purpose, reflected in the character of such rights and in the conditions informing their creation, may be relevant to the question whether and in what circumstances restriction or regulation of their enjoyment by a law of the Commonwealth amounts to acquisition of property for the purposes of s 51(xxxi) of the Constitution. That is not to say that such rights are, on account of their instrumental character, inherently susceptible to variation and, on that account, not within the protection of s 51(xxxi)[6]. In Chaffey the plurality said[7]:

  1. ↑ (2007) 231 CLR 651; [2007] HCA 34.
  2. ↑ (2007) 231 CLR 651 at 664 [23] per Gleeson CJ, Gummow, Hayne and Crennan JJ.
  3. ↑ (2000) 202 CLR 45 at 65–68 [42]–[49]; [2000] HCA 12.
  4. ↑ (2000) 202 CLR 45 at 65 [42].
  5. ↑ Drahos, A Philosophy of Intellectual Property, (1996) at 220, see also at 203.
  6. ↑ The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 16–17 [16] per Brennan CJ, 38 [86] and 56–57 [145]–[146] per McHugh J, 73–74 [198] per Gummow J; [1998] HCA 8; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 634–635 per Gummow J, Toohey J relevantly concurring at 560 and Gaudron J at 561; [1997] HCA 38; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 237 per Mason CJ, Deane and Gaudron JJ, 243–244 per Brennan J, 256 per Toohey J; [1994] HCA 8.
  7. ↑ (2007) 231 CLR 651 at 664 [24] per Gleeson CJ, Gummow, Hayne and Crennan JJ, citing The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 70–71 [182]–[187] per Gummow J.
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