Philip Morris Limited v Commonwealth of Australia; British American Tobacco Australasia & Ors v The Commonwealth of Australia; Van Nelle Tabak Nederland BV & Anor v Commonwealth of Australia; JT International SA v...

These three cases, heard together, concerned challenges brought by Philip Morris Limited, British American Tobacco Australasia and others, and Van Nelle Tabak Nederland BV and another, against the Commonwealth of Australia. The central dispute revolved around the validity of the Tobacco Plain Packaging Act 2011 (Cth) and the Tobacco Plain Packaging Regulations 2011 (Cth), which mandated that tobacco products be sold in standardised packaging. The applicants contended that these legislative measures constituted an acquisition of property by the Commonwealth otherwise than on just terms, thereby contravening s 51(xxxi) of the Constitution.

The High Court was required to determine whether the Tobacco Plain Packaging Act and Regulations constituted an acquisition of property for the purposes of s 51(xxxi) of the Constitution. Specifically, the Court had to consider whether the restrictions imposed by the legislation on the use of trademarks and brand imagery on tobacco packaging amounted to an acquisition of property, and if so, whether such acquisition was on just terms. A further issue was whether the legislation was a valid exercise of the Commonwealth's legislative power, including its trade and commerce power under s 51(i) and its corporations power under s 51(xx).

Gummow J, in his reasons, found that the legislation did not involve an acquisition of property for the purposes of s 51(xxxi). His Honour reasoned that the legislation did not transfer property from the applicants to the Commonwealth, nor did it extinguish their property rights in a manner that constituted an acquisition. Instead, the legislation imposed prohibitions and restrictions on the use of existing property rights, such as trademarks, in a regulatory scheme aimed at public health. This regulatory purpose, in Gummow J's view, distinguished the measures from an acquisition of property. The legislation was therefore considered a valid exercise of the Commonwealth's legislative power.