We learned about the Australia High Court's plain packaging decision a couple months ago, but now we have the reasoning. I've only just skimmed through it. There's a lot in there, for those who are interested either in this case or these property rights issues more generally. Here are the basics.
The legal provision at issue is Section 51(xxxi) of Australia's constitution, which states that parliament has the power 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 key issue was whether plain packaging constitutes an "acquisition"; only then would compensation ("just terms") be due. By a 6-1 margin, the court found that plain packaging is not an acquisition.
This is from the Chief Justice:
In summary, the TPP Act is part of a legislative scheme which places controls on the way in which tobacco products can be marketed. While the imposition of those controls may be said to constitute a taking in the sense that the plaintiffs' enjoyment of their intellectual property rights and related rights is restricted, the corresponding imposition of controls on the packaging and presentation of tobacco products does not involve the accrual of a benefit of a proprietary character to the Commonwealth which would constitute an acquisition. That conclusion is fatal to the case of both JTI and BAT.
There are a number of concurrences to that same effect.
There was a dissent, though, which noted: "... the acquisition here is not incidental: it is the fundamental means by which the TPP Act operates and seeks to achieve its goals." The dissenting justice then said:
After a "great" constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth's hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.
That's some great language! Here's some more by that same justice:
... counsel for British American Tobacco said that he did not want to descend into hyperbole. He did not. Nor, indeed, did he get into a state of high dudgeon. But he said: "every one of those sentences is utterly wrong." He was right to do so.
I wish WTO reports were written this way!
There is also some interesting discussion of how the Australian constitutional provision relates to the U.S. Takings Clause. One excerpt: "it has been apparent for some time that with respect to "taking" and "acquisition" some important distinctions are to be observed between the United States and Australian Constitutions."
