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Heydon J

HEYDON J. There is no doubt that a law which affects subsisting exclusive intellectual property rights can attract s 51(xxxi) of the Constitution[1]. The issue is whether the laws impugned in these proceedings affect rights of that kind in a manner which does attract s 51(xxxi)[2]. The rights in question are intellectual property rights and rights over chattels, namely cigarette packets and cigarettes. The rights are owned by certain tobacco companies ("the proprietors").

In approaching s 51(xxxi) it is necessary to remember three matters. One is its extreme importance[3]. Another is the width with which it is to be construed[4]. The third is the importance of preventing an "effective deprivation … of the reality of proprietorship" evading s 51(xxxi) by a "circuitous device to acquire indirectly the substance of a proprietary interest without at once providing … just terms"[5]. The question to be applied to the impugned legislation can be put thus[6]:

"None of the provisions … is expressed in direct language as effecting an acquisition of any property. However, the question is whether, even if not formally, the [proprietors] effectively have been deprived of 'the reality of proprietorship' by the indirect acquisition, through the collective operation of the [impugned provisions], of 'the substance of a proprietary interest'."

  1. ↑ Attorney-General (NT) v Chaffey (2007) 231 CLR 651 at 664 [24]; [2007] HCA 34.
  2. ↑ The background to these proceedings and the text of the relevant legislation is set out in other judgments. There are three impugned laws. One is the Tobacco Plain Packaging Act 2011 (Cth) ("the TPP Act"). The second is the Tobacco Plain Packaging Regulations 2011 (Cth) ("the Regulations"). The third is the Competition and Consumer (Tobacco) Information Standard 2011 ("the Standard").
  3. ↑ ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 207–212 [175]–[184]; [2009] HCA 51.
  4. ↑ ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 212–217 [185]–[193].
  5. ↑ Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349 per Dixon J; [1948] HCA 7. See also Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 407 per Gibbs CJ; [1979] HCA 47; The Commonwealth v Tasmania ('Tasmanian Dam Case') (1983) 158 CLR 1 at 283 per Deane J; [1983] HCA 21.
  6. ↑ Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 633 per Gummow J; [1997] HCA 38.
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