Gummow J
20.
GUMMOW J. These cases in the original jurisdiction of the Court present challenges by the plaintiffs to the validity of the Tobacco Plain Packaging Act 2011 (Cth) ("the Packaging Act"). The plaintiffs invoke the restraint upon legislative power found in s 51(xxxi) of the Constitution. For the reasons which follow the challenges should fail and I joined in the orders pronounced on 15 August 2012.
That failure illustrates the propositions that s 51(xxxi) gives protection against acquisition of property without just terms but "not to the general commercial and economic position occupied by traders"[1] and that to treat this commercial and economic position as if it had a distinct proprietary character would be to repeat what in Truax v Corrigan[2] Holmes J identified in a similar context as the fallacy of "delusive exactness". His Honour said:
"Delusive exactness is a source of fallacy throughout the law. By calling a business 'property' you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing."
Previous federal legislation
Tobacco advertising is controlled by the Tobacco Advertising Prohibition Act 1992 (Cth), but s 9(2) thereof provides that words, signs or symbols that appear on a tobacco product or its packaging do not constitute a tobacco advertisement.
However, the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004[3] ("the 2004 Regulations"), made under the Trade Practices Act 1974 (Cth), require that a prescribed graphic health warning must cover at least thirty percent of the front surface of tobacco packaging and ninety percent of the back surface[4].
