Australia

In a consolidation of two cases where large tobacco companies challenged the constitutionality of the Australian Commonwealth’s Tobacco Plain Packaging Act, the majority of the High Court found for the Commonwealth, upholding the constitutional validity of the Act.

The Act specifies all of the physical features of tobacco products, including their dimensions, their colour and finish, and the permitted use of trademarks and other marks. In particular, the Act requires uniform "plain" packaging for all tobacco products, consisting of graphic health warnings on at least 75% of the front of the pack and 90% on the back of the pack, with the brand name only to appear in a specified dimension and font, against a specifically chosen drab brown background.

The companies claimed that the Act constituted an acquisition of their intellectual property without just terms in contravention of s51(xiii) of the Australian Constitution and that it was therefore invalid. The majority of the Court (French CJ, Gummow, Hayne, Bell, Crennan and Kiefel JJ) held that, although the Government had "taken" the property of the tobacco companies, there had been no "acquisition" because neither the Government nor any third party acquired any benefit as a result. (The tobacco companies argued unsuccessfully that the Government had acquired a benefit because it had acquired the use of space on the pack dedicated to public health warnings; or, alternatively, that it had acquired "control" of the pack.)

Heydon J dissented from the majority opinion, finding that the Commonwealth had "acquired" property in the sense that it acquired control over the appearance of tobacco products and their packaging.

It was unnecessary for the Court to consider the wider arguments justifying the legislation on public health grounds.

All of the publicly available Court documents, including transcripts of the hearings and submissions, are available here under "Related Documents".