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Big tobacco uses The Castle in legal blue

BIG tobacco says the federal government’s plan to ban company branding on cigarette packs is as unjust as the commonwealth’s attempt to acquire Darryl Kerrigan’s home in the Australian film The Castle.

British American Tobacco Australia has told a Senate inquiry that Labor’s plain-packaging legislation is badly drafted and unfair.

Top silk Allan Myers QC said today the draft laws would “extinguish the most valuable uses of trademarks” without compensation.

“If the parliament wants to enact plain-packaging legislation, it’s pretty simple – they face up to the fact that they’re taking people’s property away and pay for it,” Mr Myers told the committee hearing in Canberra.

“The trademark in a broad sense is being appropriated for the benefit of the commonwealth.

“The acquisition of property simply doesn’t refer to marching in and taking someone’s house like in The Castle or some film.”

But other legal experts, including officials from the attorney-general’s and health departments, disagree.

Melbourne University law professor Simon Evans essentially told Mr Myers he was dreaming.

Prof Evans agreed trademarks were considered property under section 51(xxxi) of the constitution and they could not be acquired without just compensation.

But he argued the commonwealth was not acquiring the brands but rather restricting their use.

Prof Evans also drew on Darryl Kerrigan’s fictional battle to make his point.

“It’s not like The Castle where the commonwealth gets the benefit of the house in order to operate the airport,” the academic said.

“On current authority there is very little prospect that the High Court would conclude that the plain-packaging legislation effects an acquisition of those property rights.”

Prof Evans said there was “very little risk” big tobacco would win a High Court challenge because there was no transfer of property and the government would not use the trade mark.

Health department general counsel Chris Reid agreed.

“The department is quite confident here that there would not be an acquisition of property,” he said.

Australian National University law professor Matthew Rimmer told Tuesday’s hearing the same argument applied in relation to international intellectual property rights agreements.

The Gillard government wants all cigarettes to be sold in drab olive-brown packs from mid-2012.

It has two bills before parliament to make that happen: the main legislation and an associated bill to amend the Trade Marks Act.

Both have already passed the lower house and are expected to sail through the Senate with the support of the Greens.

BATA has said it will challenge the laws, once passed, in court.

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