This was a case brought by JT International SA and the British American Tobacco group challenging the Tobacco Plain Packaging Act 2011 (Cth). Other tobacco companies, Philip Morris Limited, Van NelleTabak Nederland BV and Imperial Tobacco Australia Limited, participated by way of intervention.

Effectively, the Tobacco Plain Packaging Act 2011 prevents tobacco companies from using their own get up, trade marks (other than their brand word marks and variant names) and other intellectual property to distinguish their products from those of their competitors. The legislation requires cigarette packaging to have a drab brown coloured background, with the brand name placed on it in a standard size, font and location on the package. The legislation also imposes other extensive imitations. Information and warnings about the use of tobacco products will take up much of the free space on the package.

It was argued on behalf of the tobacco companies that the legislation involved an acquisition of property from them within the meaning of s 51(xxxi) of the Constitution, and that as a result, the Commonwealth was required to provide compensation.

The key issue was whether or not there was an acquisition. Six out of the seven High Court judges held that there was no acquisition of property, as the Commonwealth did not acquire anything of a proprietary nature as a result of the legislation.

Heydon J in dissent held that “acquisition” for the purpose of s 51(xxxi) only required “some identifiable and measurable countervailing advantage” to be acquired as a result of the legislation.