JT International SA v Commonwealth: Tobacco Plain Packaging

This case note examines three conclusions that underpin the High Court's decision in JT International SA v Commonwealth that tobacco plain packaging legislation is not contrary to s 51(xxxi) of the Constitution. First, that intellectual property rights held under Commonwealth legislation can attract s 51(xxxi) protection. Second, that to engage s 51(xxxi), the impugned law must cause the Commonwealth or another person to acquire a right or benefit of a proprietary nature. Third, that none of the benefits allegedly acquired by the Commonwealth and others as a consequence of the tobacco plain packaging legislation were of a proprietary nature. The author contends that the High Court's interpretation of s 51(xxxi) is informed by use of the word 'property' in legislation and concepts of property at common law. This case note also examines dicta dismissive of an attempt to rationalise recognised exceptions to s 51(xxxi) in terms of a proportionality analysis.