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ACM Home arrow Convenor's Column arrow Tobacco Companies: Constitutional Challenge?

Tobacco Companies: Constitutional Challenge? Print E-mail
Written by Professor David Flint AM   
Friday, 30 April 2010
Will the tobacco companies institute a constitutional challenge not against the Federal government decision to increase the tobacco excise, but about the ban on using their logos on cigarette packets?

Logos are intellectual property. Are they being acquired by the Commonwealth? Must compensation be paid? Only the High Court can answer that. 

Tim Wilson from the Institute of Public Affairs says taxpayers may have to fork out more than $3 billion a year in compensation to tobacco companies."Stripping intellectual property from products is akin to stripping someone of their physical property, and requires compensation," he told the ABC’s Emma Rodgers (29/4).  Other lawyers doubt this would succeed.  

An interview with Tim Wilson by Alan Jones on 2GB can be heard here.  

Mr Rudd says the Government will not be handing out any compensation. "We the Government will not be intimidated by any tobacco company," he said."Tobacco companies are going to die in the ditch opposing this sort of packaging."  According to the ABC, concerns have also been raised that the plain packaging will make it easier to import illegal tobacco.



 

...the Peter Spencer  case....




Mr. Wilson is no doubt referring to a section of the Constitution raised here concerning the farmer, Peter Spencer. (“Without compensation: Governments take properties,” 1/4). Peter Spencer’s case against the Commonwealth concerning the effective expropriation of his property to satisfy the Kyoto Protocoll carbon emission targets is in the High Court list.

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[ Governments, state and federal, have taken my land....without paying me a penny ...]



He is being represented, pro bono (i.e. without charge) by Peter King.  Peter King played a significant role in the defence of the constitutional monarchy from the inception of the republican movement. He was the member for Wentworth until the  2004 election when the seat was won by the  former leader of the republican movement Malcolm Turnbull.


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[ "The courts are open to all.....just like the Ritz Hotel..."]



The section in the Constitution is:51 (xxxi.) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth 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. 









...Aboriginal land...





Our report, “Without compensation: Governments take properties,”  also refers to the political challenge by Noel Pearson and the Northern Land Council to the Queensland Wild Rivers Act. They say this was introduced by the Queensland government to ensure Green preferences, and effectively expropriates Aboriginal land. A bill to override this has been introduced into the Senate by Senator Scullion.

The tobacco companies are not of course assured of success. But they certainly  have the funds to institute a legal challenge.

 There is an  old saying that “...the courts of justice are open to all, just like the Ritz Hotel.”

 

  
 
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