Bell J
61.
use the term as a reference to the body politic. If they did, it was not, and could not be, suggested that the TPP Act led to any enhancement to the property of the body politic of the kind that occurs, for example, when a right to mine minerals from land vested in the Commonwealth is extinguished[1].
In oral argument, the British American Tobacco plaintiffs submitted that it was the Executive Government of the Commonwealth that obtains a benefit or advantage because the TPP Act provides[2] power to make regulations prescribing additional requirements in relation to retail packaging. And more generally, it may be that the tobacco companies' submissions about the Commonwealth obtaining the use of, or control over, retail packaging were to be understood as using "the Commonwealth" to refer to "the Government" in the sense of "the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business"[3]. But neither the more particular submission of the British American Tobacco plaintiffs nor any more general submission that the TPP Act confers a benefit or advantage on the Executive Government of the Commonwealth can be accepted.
Whatever the sense in which the tobacco companies intended to use the term, "the Commonwealth" has no message which is conveyed by whatever appears on retail packaging that conforms to the requirements of the TPP Act. The packaging takes the form and bears the information required by the TPP Act. It is the legislation which requires that to be so.
The TPP Act neither permits nor requires the Commonwealth to use the packaging as advertising space. The Commonwealth makes no public announcement promoting or advertising anything. The packaging will convey messages to those who see it warning against using, or continuing to use, the product contained within the packaging. Statutory requirements for warning labels on goods will presumably always be intended to achieve some benefit: usually the avoidance of or reduction in harm. But the benefit or advantage that results from the tobacco companies complying with the TPP Act is not proprietary. The Commonwealth acquires no property as a result of their compliance with the TPP Act.
