Bell J
59.
The tobacco companies' arguments
The tobacco companies expressed their arguments in several different ways. The largest submission was that s 51(xxxi) could be, and here was, engaged even though no "property" was acquired.
JT International SA expressly adopted this position, submitting that the achievement of any or all of the evident purposes of the TPP Act (reducing expenditure on health care, improving the effectiveness of health warnings, and meeting international obligations) was sufficient to engage s 51(xxxi). The submissions of the other tobacco companies may well be understood as embracing this argument. For the fundamental reasons already given, the argument must be rejected.
All the tobacco companies further submitted, however, that the benefit or advantage that the Commonwealth obtains from the tobacco companies' compliance with the TPP Act falls within what this Court's decisions recognise to be "property" for the purposes of s 51(xxxi). All these arguments sought to assert, in one way or another, that the TPP Act takes the tobacco companies' intellectual property and gives the Commonwealth an "identifiable and measurable countervailing benefit or advantage". The "benefit or advantage" was described in various ways: "use" or "control" of the (surface of) tobacco packaging; free advertising space; "control" over what appears on retail packaging and thus "control" over the "exploitation" of that packaging; the removal from packaging of what the Commonwealth wanted removed and its replacement by what the Commonwealth wanted put there. Though variously expressed, the different formulations had common ground. They identified the object in which the Commonwealth was said to have property as the physical packaging in which the tobacco companies sell their products, and each form of the submissions hinged on the notions of "the Commonwealth" obtaining the "use" of, or "control" over, that packaging.
These submissions must be considered against the fundamental principles explained earlier. Does the Commonwealth obtain a benefit or advantage that is proprietary in nature?
Does the Commonwealth acquire "property" in the packaging?
The tobacco companies' submissions direct attention to the relationship between the Commonwealth, as the putative acquirer, and the object, in these cases the tangible object, in which it is said that the Commonwealth has obtained a proprietary interest. It is therefore necessary to examine in more detail how it was said that the Commonwealth gained the "use" of, or "control" over, the packaging in which tobacco products are sold.
