British American Tobacco Australia Ltd v Secretary, Department of Health & Ageing [2012] HCATrans 193

British American Tobacco Australia Ltd (BATA) and other tobacco manufacturers sought judicial review of a decision by the Secretary of the Department of Health & Ageing. The dispute concerned the validity of regulations made under the *Tobacco Plain Packaging Act 2011* (Cth) which mandated plain packaging for tobacco products. BATA argued that these regulations constituted an acquisition of property by the Commonwealth otherwise than on just terms, contrary to section 51(xxxi) of the *Australian Constitution*. The matter was heard by Gummow, Hayne and Crennan JJ of the High Court of Australia.

The central legal issue before the High Court was whether the plain packaging regulations effected an acquisition of property for the purposes of section 51(xxxi) of the Constitution. Specifically, the court had to determine if the restrictions imposed by the regulations on the use of trademarks and branding on tobacco product packaging amounted to an acquisition of property by the Commonwealth, and if so, whether it was on just terms.

The High Court held that the regulations did not constitute an acquisition of property within the meaning of section 51(xxxi). Their Honours reasoned that while the regulations significantly restricted the use of intellectual property rights, including trademarks, this did not amount to an acquisition of that property by the Commonwealth. Instead, the regulations imposed prohibitions and restrictions on the use of property, which did not involve the Commonwealth taking possession or control of the property itself. The court distinguished between the extinguishment or impairment of rights and the acquisition of those rights, finding that the latter was a necessary element for section 51(xxxi) to be enlivened.

Consequently, the High Court dismissed the application for judicial review.