JT International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v The Commonwealth of Australia [2012] HCATrans 93

The High Court of Australia heard applications for special leave to appeal in two related matters: *JT International SA v Commonwealth of Australia* and *British American Tobacco Australasia Limited & Ors v The Commonwealth of Australia*. These applications arose from a challenge to the constitutional validity of the *Plain Packaging Act 2011* (Cth) and the *Tobacco Plain Packaging Regulations 2011* (Cth), which mandated that tobacco products be sold in plain packaging and prohibited the use of trademarks on these packages. The applicants, tobacco manufacturers and a related company, contended that these legislative measures constituted an acquisition of property by the Commonwealth otherwise than on just terms, contrary to section 51(xxxi) of the Constitution.

The central legal issue before the High Court was whether the legislative requirements for plain packaging and the prohibition on trademarks amounted to an acquisition of property by the Commonwealth. Specifically, the applicants argued that the prohibition on using their registered trademarks on tobacco packaging constituted an acquisition of their intellectual property rights without just terms. The Commonwealth contended that the legislation did not involve an acquisition of property, but rather a regulation of the sale and packaging of tobacco products, a field in which the Commonwealth had legislative power.

The High Court, in refusing special leave to appeal, implicitly accepted the Commonwealth's submissions. The Court's reasoning, as indicated by the refusal of special leave, was that the legislation did not effect an acquisition of property in the constitutional sense. Instead, it was viewed as a regulatory measure that restricted the use of property, including intellectual property, in the public interest. The Court did not find a sufficient basis to conclude that the Commonwealth had acquired the trademarks or any other property of the applicants. Consequently, the requirement for just terms under section 51(xxxi) of the Constitution was not engaged.