In the cases of JT International SA V Commonwealth Of
Australia and British American Tobacco Australasia Limited &
Ors v Commonwealth Of Australia  HCA 30 the High Court
of Australia has dismissed a challenge to the validity of the
Federal Government's Tobacco Plain Packaging Act 2011
(Cth) ("the TPP Act").
Under the provisions of the TPP Act, manufacturers of tobacco
products would be required to sell these goods in plain packaging,
described as being dark olive brown in colour. The brand name will
appear on the package but only in a standard printed form.
The TPP Act was introduced as part of a suite of measures
intended to reduce the national smoking rate in Australia. The
Government's objective is to try to reduce rates to 10% by
2018 and halve the smoking rate of Aboriginal and Torres Straight
The tobacco companies sought to rely on Section 51(xxxi) of the
Australian Constitution, which provides Parliament with the powers
to make laws with respect to "the acquisition of property
on just terms from any State or person for any purpose in respect
of which the Parliament has power to make laws". The
companies argued that the provisions of the TPP Act were invalid
because they represented an acquisition of their property, namely
their intellectual property including trade marks, other than on
just terms and without proper compensation. In response, the
Government argued that it was only trying to regulate what appears
on the boxes and was not acquiring any trade marks.
In reaching this decision, at least a majority of the court have
decided that the provisions of the TPP Act are not contrary to
section 51(xxxi) of the Constitution, and have made relevant
orders. The full reasons for the High Court's decision will
be published in the near future.
Developments in this case and the High Court's decision
have been closely monitored by other foreign governments that are
interested in passing similar legislation, including the United
Kingdom, New Zealand, India, Hong Kong and some states in the
United States. The TPP Act is due to be fully implemented from
December 1, 2012. The High Court has ordered the tobacco companies
to pay the Federal Government's legal costs.
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