73.
proprietors called this conscripting, commandeering or dominating the space. To put it more neutrally, these new rights are rights of control.
The Commonwealth's new rights of control are rights closely connected with the proprietors' now-defunct property rights. Before the impugned legislation, each proprietor had the right to apply its registered trade marks to its goods in the course of trade. Each proprietor had the right to sell those goods in get-up of its choice in the course of trade. The Commonwealth acquired the right to have the cigarette packets of each proprietor presented in the course of trade in the get-up of its choice. That get-up shows very little of the proprietor's intellectual property. Instead, it shows health warnings and the Quitline logo and message. The colour and shape of the packet and the font size to be employed on it are specified in the legislation. Of the proprietor's intellectual property, only its "brand, business or company name" remains. The rights the Commonwealth acquired substantially correspond with those the proprietors lost. A newly acquired right arose in the Commonwealth to command the publication of messages it desires to have sent, without charge, to the public. If property is "a legally endorsed concentration of power over things and resources"[1], key elements in that concentration have been moved from the proprietors to the Commonwealth. Those elements are identifiable benefits or advantages relating to the ownership or use of property.
The destruction of the proprietors' rights by prohibition is integral to the Commonwealth's command to employ health warnings. The command could not rationally have been issued without the destructive prohibition. Hence the Commonwealth could not have obtained the advantage it gained from the command without the prohibition. Thus the legislation ensured that some of the proprietors' property was destroyed and some applied totally for a purpose of the Commonwealth.
It is convenient to return to the four-sentence submission of the Commonwealth set out earlier[2].
The first sentence stated that the proprietors had no positive right to use their rights free from other legal restrictions. But they did if those legal restrictions contravened s 51(xxxi).
