79.
"We were invited by the Solicitor-General to hold that a law whose effect is to provide for the acquisition of property is not a law with respect to the acquisition of property when it also happens to be a regulatory law which prohibits and penalizes obnoxious or undesirable trade practices by corporations. The argument accompanying this invitation was rather elusive."
Mason J rejected the argument. It did not prevail. Yet it was repeated in these cases in relation to "obnoxious or undesirable" tobacco advertising practices.
In 1993, in Georgiadis v Australian and Overseas Telecommunications Corporation, another Solicitor-General submitted that the expression "just terms" is an expression which "extends to what is fair, taking into account the interests of the community."[1] That submission did not prevail either. It was specifically rejected by Brennan J[2]. Yet it was repeated in these cases.
These are just minor examples of a common characteristic of's 51(xxxi) litigation–that the Commonwealth repeats arguments it has advanced in earlier cases over many years, despite their failure, and often their repeated failure.
After a "great" constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth's hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.
Orders
In JT International SA v Commonwealth of Australia, there should have been an order declaring that the Tobacco Plain Packaging Act 2011 (Cth) is invalid (apart from s 15, as to which it is unnecessary to decide) and an order that the defendant should pay the plaintiff's costs.
In British American Tobacco Australia Ltd v Commonwealth of Australia, the questions reserved should have been answered:
- Yes.
- No.
