text:
Deutsche Sagen

 * Volume 1 (1816)
 * 1: "Die drei Bergleute im Kuttenberg" ('The Three Miners in the Kuttenberg')
 * "The Three Miners of Kuttenberg" translated by William John Thoms (1832)
 * "The Three Miners of Kuttenberg" translated by William John Thoms (1834)
 * 10: "Fräulein von Boyneburg" ('The Maiden of Boyne Castle')
 * "The Maiden of Boyneburg" translated by William John Thoms (1834)
 * 23: "Friedrich Rotbart auf dem Kyffhäuser" ('Frederick Barbarossa at the Kyffhäusen')
 * "Frederick the Red Beard upon the Kyffhâusen" translated by Thomas Roscoe (1826)
 * 52: "Der Wassermann und der Bauer" ('The Merman and the Farmer')
 * "A water-man once lived on good terms with a peasant," translated by Thomas Crofton Croker (1828)
 * 48: "Der wilde Jäger jagt die Moosleute" ('The Wild Hunter Hunts the Moss-Folk')
 * "The Wild Hunter in Chase of the Moss Hoppers" translated by Thomas Roscoe (1826)
 * 60: "Die Elbjungfer und das Saalweiblein" ('The Elbe Maiden and the Saal Woman')
 * "The legend of the Elbe maid" (extract) translated by Thomas Crofton Croker (1828)
 * 74: "Der Kobold in der Mühle" ('The Cobold in the Mill')
 * "The Familiar of the Mill" translated by Thomas Roscoe (1826)
 * "The Kobold in the Mill" translated by William John Thoms (1834)
 * 75: "Hütchen" ('Little-Hat')
 * "The Domestic Goblin Hutchen" translated by Thomas Roscoe (1826)
 * 95: "Johann von Passau" ('John of Passau')
 * "Johan Von Passau" translated by Thomas Roscoe (1826)
 * 115: "Andreasnacht" ('St. Andrea’s Eve')
 * "St. Andrew’s Night" translated by William John Thoms (1834)
 * 119: "Kristallschauen" ('Crystal Gazing')
 * "The Magic Glass" translated by Thomas Roscoe (1826)
 * "The Crystal Ball" translated by William John Thoms (1834)
 * 129: "Johann Hübner" ('John Hübner')
 * "Johan Hûbner" translated by Thomas Roscoe (1826)
 * 205: "Der Dom zu Köln" ('The Cathedral at Cologne')
 * "The Erection" translated by Joseph Snowe (1839)
 * 211: "Der Teufel als Fürsprecher" ('The Devil as Advocate')
 * "The Devil Turned Pleader" translated by Thomas Roscoe (1826)
 * 212: "Traum vom Schatz auf der Brücke" ('Dream of the Treasure on the Bridge')
 * "A man once dreamed that if he went to Regensburg" translated by Thomas Crofton Croker (1828)
 * 214: "Der Werwolf" ('The Werewolf')
 * "The Wehr-Wolf" translated by William John Thoms (1834)
 * 265: "Rebundus im Dom zu Lübeck" ('Rebundus in the Cathedral at Lubeck')
 * "Rebundus in the Cathedral at Lubeck" translated by Thomas Roscoe (1826)
 * "Rebundus in the Cathedral of Lubeck" translated by William John Thoms (1834)
 * 276: "Die überschiffenden Mönche" ('The Ferrying Monks')
 * "The Monks and the Fisherman" translated by William John Thoms (1834)
 * 282: "Weberndes Flammenschloß" ('Weaving Castle of Flames')
 * "The Flaming Castle" translated by William John Thoms (1834)
 * 310: "Hans Jagenteufel" ('Hans Jagenteufel')
 * "Hans Jagenteufel" translated by William John Thoms (1834)
 * 336: "Gäste vom Galgen" ('Guests from the Gallows')
 * "The Gallows Guests" translated by Thomas Roscoe (1826)

 * Volume 2 (1818)
 * 442: "Hildegard" ('Hildegard')
 * "Hildegard" translated by Thomas Roscoe (1826)
 * 547: "Das Oldenburger Horn" ('The Oldenburg Horn')
 * "The Oldenburgh Wonder-Horn" translated by Thomas Roscoe (1826)

title: Deutsche Sagen


text:
Page:JT International SA v Commonwealth of Australia.pdf/29

French CJ

person. Unlike the Newcrest case, there is no expansion in rights, interests, or benefits accruing to the Commonwealth that corresponds to or bears any relationship to the restrictions imposed on the use of the plaintiffs' intellectual property rights. The fact that the restrictions and prohibitions imposed by the TPP Act create the "space" for the application of Commonwealth regulatory requirements as to the textual and graphical content of tobacco product packages does not constitute such an accrual. Rather, it reflects a serious judgment that the public purposes to be advanced and the public benefits to be derived from the regulatory scheme outweigh those public purposes and public benefits which underpin the statutory intellectual property rights and the common law rights enjoyed by the plaintiffs. The scheme does that without effecting an acquisition.

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.

For these reasons, I joined in the orders made by the Court on 15 August 2012.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Page:JT International SA v Commonwealth of Australia.pdf/30

Gummow J

GUMMOW J. These cases in the original jurisdiction of the Court present challenges by the plaintiffs to the validity of the Tobacco Plain Packaging Act 2011 (Cth) ("the Packaging Act"). The plaintiffs invoke the restraint upon legislative power found in s 51(xxxi) of the Constitution. For the reasons which follow the challenges should fail and I joined in the orders pronounced on 15 August 2012.

That failure illustrates the propositions that s 51(xxxi) gives protection against acquisition of property without just terms but "not to the general commercial and economic position occupied by traders" and that to treat this commercial and economic position as if it had a distinct proprietary character would be to repeat what in Truax v Corrigan Holmes J identified in a similar context as the fallacy of "delusive exactness". His Honour said:

"Delusive exactness is a source of fallacy throughout the law. By calling a business 'property' you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing."

Tobacco advertising is controlled by the Tobacco Advertising Prohibition Act 1992 (Cth), but s 9(2) thereof provides that words, signs or symbols that appear on a tobacco product or its packaging do not constitute a tobacco advertisement.

However, the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 ("the 2004 Regulations"), made under the Trade Practices Act 1974 (Cth), require that a prescribed graphic health warning must cover at least thirty percent of the front surface of tobacco packaging and ninety percent of the back surface.


text: Page:WW Jacobs--The lady of the barge.djvu/270


text:
Author:Hartwell Carver

Works

 * Proposal for a charter to build a railroad from Lake Michigan to the Pacific Ocean (1847)

title: Author:Hartwell Carver


text:
Page:JT International SA v Commonwealth of Australia.pdf/31

Gummow J

In respect of tobacco products to be supplied after 30 November 2012, the Competition and Consumer (Tobacco) Information Standard 2011 ("the 2011 Regulations"), made under the Competition and Consumer Act 2010 (Cth), will require that a prescribed graphic health warning must cover at least seventy-five percent of the front of the packet, and at least ninety percent of the back outer surface.

The prescribed health warnings include an invitation to call the "Quitline" service; the "Quitline" logo with the number "13 7848" is the registered trade mark, in respect of health educational services, of the Anti-Cancer Council of Victoria.

Section 10 of the Packaging Act provides that the 2004 Regulations and the 2011 Regulations prevail to the extent of any inconsistency with the Packaging Act.

No challenge is made in these proceedings to the validity of the 2004 Regulations or the 2011 Regulations. What primarily is at stake is the utilisation of the remaining space on the front of tobacco packages for the display of trade marks and product get-up without the restraints imposed by the Packaging Act.

In matter No S409 of 2011 ("the JTI Matter") the plaintiff, JT International SA ("JTI"), is incorporated in Switzerland. JTI is the registered owner of one trade mark and exclusive licensee of four trade marks, all registered under the Trade Marks Act 1995 (Cth) ("the TMA"). The registrations are in respect of tobacco products falling within class 34 of the international trade mark classification.

Registered trade marks numbers 339477 and 348139 have respective priority dates in 1979 and in 1980. The earlier registration comprises "Camel"


text:
Page:James Gordon Meek Affidavit.pdf/2

 depiction involves the use of a minor engaging in sexually explicit conduct, and such visual depiction is of such conduct.”

3. The facts in this affidavit come from my personal observations, my training and experience, and information obtained from other law enforcement officers, witnesses, and/or agencies. Because this affidavit is being submitted for the limited purpose of demonstrating probable cause in support of a criminal complaint, I have not included every fact known to law enforcement concerning this investigation. Rather, I have set forth certain facts intended to establish probable cause to support the complaint.

A.Initiation of Investigation

4. The investigation was initiated from an investigative lead sent to the Washington Field Office’s Child Exploitation and Human Trafficking Task Force. The lead stated that on March 11, 2021, Dropbox filed a CyberTip with the National Center for Missing and Exploited Children (NCMEC) regarding child pornography found in a Dropbox account on March 10, 2021. The CyberTip reported that a Dropbox account user had uploaded five videos to Dropbox that were later confirmed by law enforcement to contain child pornography. The username associated with the account was “James Meek,” and the CyberTip contained IP addresses that were subsequently determined to be assigned to MEEK, at an address in Arlington, VA (MEEK’s RESIDENCE).

5. Based on this and other investigative information, a search warrant was obtained for MEEK’s RESIDENCE. On April 27, 2022, the search warrant was executed at MEEK’s RESIDENCE by members of the Washington Field OfficeOffice’s [sic] Child Exploitation and Human Trafficking Task Force. MEEK alone was present at the RESIDENCE; law enforcement officers

title: Page:James Gordon Meek Affidavit.pdf/2


text:
Page:JT International SA v Commonwealth of Australia.pdf/32

Gummow J

in fancy script and the latter "Camel" in plain script. Registered trade marks numbers 1276704 and 1351189 have later priority dates respectively in 2008 and 2010. The first of these trade marks uses the representation of "Camel" in fancy script, the subject of the 1979 registration, together with additional graphic material including a desert scene with a camel, palm trees and a pyramid. The most recent registration is a drawing of a camel in silhouette.

JTI is exclusive licensee of these four trade marks. JTI is registered owner of the remaining registration, number 1007693, which has a priority date in 2004, and comprises the words "Old Holborn" displayed upon what appears to be fancy packaging in the shape of a tobacco pouch. Tobacco products are distributed and sold in Australia in packaging featuring the registered trade marks and the brand names "Camel" and "Old Holborn".

In the second matter, No S389 of 2011 ("the BAT Matter"), the first plaintiff, British American Tobacco Australasia Limited ("BAT Australasia"), is a trading corporation, incorporated under the Corporations Act 2001 (Cth) ("the Corporations Act"); the second plaintiff, British American Tobacco (Investments) Limited ("BAT Investments"), is incorporated under the laws of England and Wales; the third plaintiff, British American Tobacco Australia Limited ("BATA"), is a wholly owned subsidiary of BAT Australasia and is a trading corporation, incorporated under the Corporations Act. BATA carries on the business of manufacturing or importing and of marketing, selling, distributing and displaying packets of cigarettes under the "Winfield" brand and the "Dunhill" brand. Since July 2010 BATA has sold in Australia hundreds of millions of packets of Winfield cigarettes and tens of millions of packets of Dunhill cigarettes.

BAT Australasia is the registered owner under the TMA of trade marks numbers 270845, 752287, 917043 and 1326870 ("the BAT Trade Marks"). All feature the brand name "Winfield" with additional material and are registered in class 34. The registration of the second and third of these trade marks bears endorsements as to colour. The trade marks were first registered respectively in 1973, 1998, 2002 and 2009.

The BAT Matter also involves other species of intellectual property. It is accepted by the Commonwealth that BAT Australasia is the owner of original artistic works pursuant to the Copyright Act 1968 (Cth) ("the Copyright Act") comprising the material (excluding health warnings) on the packaging for the products marketed as "Winfield Optimum Night", "Winfield Blue", "Winfield Red", "Winfield Silver" and "Winfield Gold" ("the BAT Copyrights").

BAT Investments is the owner of registered design number 323481 under the provisions of the Designs Act 2003 (Cth) ("the Designs Act"). The design ("the BAT Design") is registered with lodgment date of 31 October 2008, in respect of a "ribbed pack". The newness and distinctiveness of the design is said


text:
Page:James Gordon Meek Affidavit.pdf/3

 believe that the RESIDENCE had no permanent residents other than MEEK at the time. Several electronic devices were collected from the residence and subsequently searched.

B.Evidence of Transportation of Child Pornography

6. Law enforcement seized an iPhone 8 from an entry table by the door to MEEK’s RESIDENCE}}. The device was powered on and password protected at the time it was located and collected.

7. The iPhone 8 contained three chat conversations in which the username “Pawny4” was engaging in sexually explicit conversations where the participants expressed enthusiasm for the sexual abuse of children. In two of those conversations, Pawny4 received and distributed child pornography image and video files through Kik, an internet-based messaging platform.

8. Forensic review of the iPhone 8 showed that between February 26, 2020, and February 27, 2020, Pawny4 and USERNAME 2 exchanged child pornography and messaged on Kik about their mutual interest in the sexual exploitation of children. USERNAME 2 identified as a 25-year-old male, and when Pawny4 asked, “Love kids?”, USERNAME 2 responded, “Yesss” and “mmmm im glad I found someone likeminded”. Pawny 4 and USERNAME 2 exchanged pictures of their penises and continued their conversation (spellings as in original):

USERNAME 2: Youre so sexy. I want your cock while those kids suck me USERNAME 2: Its so beautiful USERNAME 2: I love your cock Pawny4: Have you ever raped a toddler girl? It’s amazing USERNAME 2: itsmy dream Pawny4: Do you have any pictures of bitches? USERNAME 2: I want you with me fucking her together while we kiss and use her USERNAME 2: I have a vid Pawny4: I would give anything to do that Pawny4: Show it

title: Page:James Gordon Meek Affidavit.pdf/3


text:
Page:JT International SA v Commonwealth of Australia.pdf/33

Gummow J

to reside in the features of shape and configuration of a ribbed pack illustrated in the representations accompanying the registration. BAT Investments also is grantee of Patent No 2001258572 under the Patents Act 1990 (Cth) ("the Patents Act") for an invention titled "Smoking article packaging" ("the BAT Patent") which claims a method of re-sealing the contents in that packaging. The Dunhill branded cigarettes referred to above were sold in packaging which utilised the BAT Patent and applied the BAT Design.

The plaintiffs in both the JTI Matter and the BAT Matter assert common law rights of goodwill in the get-up of their products in addition to their statutory rights.

JTI complains of the effect upon these trade mark registrations of the Packaging Act and of the Tobacco Plain Packaging Regulations 2011 ("the Packaging Regulations") made under the Packaging Act. JTI contends that the effect is, under pain of offence and civil penalty provisions contained in the Packaging Act, to require the elimination of all distinguishing features of its tobacco packaging and to permit, on the area of packaging remaining after the health warnings, the use only of the brand or business name or variant name (eg "Camel") in small plain font against a background in a drab colour known as Pantone 448C.

JTI seeks declaratory relief that in its application to the JTI registered trade marks the Packaging Act (and thus the Packaging Regulations made thereunder ) is invalid. JTI also complains of the effect of the Packaging Act upon what it claims are its common law rights in the get-up of its products. To the defence, in which the Commonwealth pleads that s 51(xxxi) is not engaged with respect to the Packaging Act, JTI pleads and demurs, and its demurrer is set down before the Full Court.

On the hearing of the demurrer there were interventions by Queensland, the Northern Territory and the Australian Capital Territory. Each intervener supported the submissions by the Commonwealth as to the absence of any "acquisition" as required by s 51(xxxi).


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Gummow J

By order of a Justice of this Court made on 28 February 2012 questions have been reserved for determination by the Full Court in the BAT Matter pursuant to s 18 of the Judiciary Act 1903 (Cth). The effect of Qu (1) is to ask whether all or some of the provisions of the Packaging Act result in an acquisition otherwise than on just terms of the BAT trade marks and the BAT Copyrights, the BAT Design and the BAT Patent, and the common law rights of BAT Australasia and of BATA. Question (2) asks whether the resolution of Qu (1) requires the determination at trial of any disputed facts. Question (3) assumes an affirmative answer to Qu (1). Question (4) raises the validity of s 15 of the Packaging Act; the text of s 15 is set out later in these reasons.

There were interventions in the BAT Matter by Philip Morris Ltd ("Philip Morris") and by Van Nelle Tabak Nederland BV and Imperial Tobacco Australia Ltd (together "Van Nelle") in support of the plaintiffs and interventions in support of the Commonwealth by the Northern Territory and the Australian Capital Territory. The demurrer in the JTI Matter and the questions reserved in the BAT Matter were heard consecutively.

It is convenient to begin with some consideration of the relevant intellectual property legislation, beginning with the trade mark legislation.

The issues which are presented in these cases respecting the "taking" and "acquisition" of proprietary interests are to be approached with an appreciation that trade mark legislation, in general, does not confer a "statutory monopoly" in any crude sense. Rather, the legislation represents an accommodation between the interests of traders, in the use of trade marks in developing the goodwill of their businesses and turning this to account by licensing arrangements, and the interests of consumers, in recognising trade marks as a badge of origin of goods or services and avoiding deception or confusion as to that origin.


text:
Author:Walter Simson

Works

 * A history of the Gipsies: with specimens of the Gipsy language. Edited with pref. introd. and notes, and a disquisition on the past, present and future of gipsydom (1865)

title: Author:Walter Simson


text:
Page:James Gordon Meek Affidavit.pdf/4

 USERNAME 2: Sadly not as young as id like Pawny4: Send me a video so I can see you stroking that gorgeous cock

9. USERNAME 2 then sent Pawny4 a video focused on the genital area of an apparent minor female depicting a female using her fingers to masturbate her vagina. The female appeared to be between a pre-adolescent and adolescent, and there was no visible hair on her visible pubic region. The female stated several times during the video, “Daddy fuck me”.

10. Shortly thereafter, USERNAME 2 told Pawny4 “Id give anything to rape toddlers with you”. Pawny4 responded “I think I’m in love with you” and sent a video that was 1 minute and 14 seconds in length depicting an erect penis penetrating the anus of a female infant. Throughout the duration of the video, the infant can be heard loudly crying and screaming. The man continues to rape the infant despite her screams and becomes more forcible in the penetration of her anus as the video progresses. Shortly after sending this video, Pawny4 said “I wish I could lick up all that cum all over that little baby that he just raped”. Pawny4 later stated “I wish you came on a toddler we just raped hard” and “Wishing I was licking your cum off a bald labia”. Pawny4 sent USERNAME 2 at least one more image and one more video depicting child pornography.

11. Between February 26, 2020, and February 28, 2020, Pawny4 and USERNAME 3 exchanged child pornography files and messaged on Kik about the sexual exploitation of children. USERNAME 3 identified himself as a 22-year-old male, and when Pawny4 asked “Love kids?”, USERNAME 3 responded, “I do”. Pawny4 sent an image of a prepubescent girl on the beach with her chest exposed, and then stated “Rape this little bitches mouth with that gigantic cock”. USERNAME 3 responded, “I’d love to get her little throat bulging”. Pawny4 shared an image of a nude woman breastfeeding two infants at the same time and shared his fantasies about raping the woman, licking USERNAME 3’s semen off the woman and her children, and impregnating the

title: Page:James Gordon Meek Affidavit.pdf/4


text:
Page:JT International SA v Commonwealth of Australia.pdf/35

Gummow J

The term "trade mark" is defined in s 17 of the TMA as a "sign" which is used or intended to be used to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person. A trade mark must be capable of graphic representation (s 40).

The Registrar is obliged by s 68 to register a trade mark which is accepted for registration and in respect of which there has been no successful opposition. A trade mark may be registered with limitations as to colour, in respect of the whole or part of the trade mark. Examples are the "Winfield" registration numbers 752287 and 917043. To the extent that a trade mark is registered without limitations of the exclusive right of use as to colour, the trade mark is taken to be registered for all colours (s 70).

Section 21 states that a registered trade mark "is personal property" and that equities in respect of it "may be enforced in the same way as equities in respect of any other personal property". It is important to note that a registered trade mark may be assigned or transmitted, with or without the associated goodwill and for all or some only of the goods or services for which it is registered (s 106). From the date of registration (s 20(3)), the registered owner is given by s 20(1) "the exclusive rights" (a) to use the trade mark and (b) to authorise others to do so, in relation to the goods or services in respect of which the trade mark is registered (emphasis added). Use by an authorised user is taken for the purposes of the Act to be a use by the owner (s 7(3)).

The exclusive right of use in respect of the goods or services for which there is a registration is given effect and extended by the infringement provision in s 120. Under the chapeau "When is a registered trade mark infringed?", s 120 gives three distinct answers. The first appears in sub-s (1), the second in sub-s (2), and the third in sub-ss (3) and (4). Section 120, excluding the appended Notes, reads:

"(1) A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered.

(2) A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to:


text:
Page:James Gordon Meek Affidavit.pdf/5

 woman. Pawny4 also referenced another conversation he was having with a 21-year-old woman who wanted him to impregnate her so that they could sexually abuse their child together.

12. Pawny4 and USERNAME 3 continued to chat about masturbating and wanting to see each other. Pawny4 stated “Just to be able to spread my semen all over some nice big fat tits and a naked little girl would be a dream come true. Start raping her ass in infancy and try to get my cock inside her pussy by age 3 as her mother masturbates next to us”. On February 26, 2020, Pawny4 sent to USERNAME 3 the same video depicting the anal rape of an infant discussed above.

13. Pawny4 sent USERNAME 3 via Kik approximately four additional images depicting child pornography. The last image of child pornography, depicting a prepubescent girl with apparent semen on her stomach immediately above her exposed genitalia, was sent on the morning of February 27, 2020.

14. The telephone number connected to the SIM card in the iPhone 8 was the same number that law enforcement had previously determined was associated with MEEK’s Dropbox and Gmail account. The device name was “Bone Machine”, and the sync host name was “Computer: crimson ghost\User: JAMES G. MEEK”. The Gmail address associated with the Dropbox account listed in the CyberTip was found on the iPhone8, associated to a Dropbox account and an iCloud account. The iPhone 8 contained a Skype account with the username “8:meekwire” and the account name “@meekwire”. Finally, the phone included health data for MEEK.

15. Travel records and evidence from the iPhone 8 indicate that from February 24,

title: Page:James Gordon Meek Affidavit.pdf/5


text:
Page:JT International SA v Commonwealth of Australia.pdf/36

Gummow J

1. goods of the same description as that of goods (registered goods) in respect of which the trade mark is registered; or

2. services that are closely related to registered goods; or

3. services of the same description as that of services (registered services) in respect of which the trade mark is registered; or

4. goods that are closely related to registered services.

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

(3) A person infringes a registered trade mark if:

1. the trade mark is well known in Australia; and

2. the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to: 1. goods (unrelated goods) that are not of the same description as that of the goods in respect of which the trade mark is registered (registered goods) or are not closely related to services in respect of which the trade mark is registered (registered services); or

2. services (unrelated services) that are not of the same description as that of the registered services or are not closely related to registered goods; and

3. because the trade mark is well known, the sign would be likely to be taken as indicating a connection between the unrelated goods or services and the registered owner of the trade mark; and

4. for that reason, the interests of the registered owner are likely to be adversely affected.

(4) In deciding, for the purposes of paragraph (3)(a), whether a trade mark is well known in Australia, one must take account of the extent to which the trade mark is known within the relevant sector of the public, whether as a result of the promotion of the trade mark or for any other reason." (emphasis in original)


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Page:JT International SA v Commonwealth of Australia.pdf/37

Gummow J

The remedies for infringement include an injunction and damages or an account of profits (s 126). An authorised user who brings an infringement action must join the registered owner as a defendant (s 26(2)).

Regulations made under the Act may provide that a specified sign is not to be used as a trade mark or as part of a trade mark; but the regulations may not affect an already registered trade mark (s 18).

A trade mark is subject to removal from the Register for non-use, as provided in Pt 9 (ss 92-105). In particular, s 92(4)(b) specifies a non-use period of three years ending one month before the filing of the application for removal. Part 8, Div 2 (ss 85-90) provides for rectification of the Register by curial order if a ground in s 87 or s 88 is made out. These grounds include the loss of distinctiveness after registration whereby the trade mark becomes the "generic" description or name of an article, substance or service (s 87) and the presence of circumstances at the time of the rectification application which made the use of the trade mark likely to deceive or cause confusion (s 88).

In oral submissions the Queensland Solicitor-General submitted, essentially with the support of the Commonwealth Solicitor-General, that, (i) absent some prohibitions elsewhere in the common law or in statute, there was at common law a freedom to use any word or device in association with the provision of goods or services, (ii) that common law freedom was not proprietary in nature, (iii) it was this common law freedom of traders, whether the plaintiffs or others, which the Packaging Act restricted, (iv) the "exclusive" rights of a registered owner identified in s 20(1) of the TMA, to use and to authorise use, were directed to the imposition in favour of the registered owner of a duty or obligation upon others, thereby restricting what otherwise was their freedom of use, (v) it was this right to exclude which constituted the personal property in a registered trade mark spoken of in s 21 of the TMA, (vi) the Packaging Act in no way impinged upon the rights of exclusion of others conferred by the TMA upon registered owners.

These propositions may be accepted, but, as will appear, are not decisive of the operation of s 51(xxxi) in the JTI Matter and the BAT Matter.

It also is true, as another threshold proposition, that while the TMA facilitates the exploitation of registered trade marks in trade and commerce, trade mark registration systems ordinarily do not confer a liberty to use the trade mark, free from what may be restraints found in other statutes or in the general law. The point was made with respect to the Trade Marks Act 1955 (Cth) by Deane J


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Gummow J

in New South Wales Dairy Corp v Murray Goulburn Co-op Co Ltd where he referred to:

"the availability of ordinary criminal or civil procedures to prevent dishonesty, fraud and passing-off and by the fact that registration of a trade mark does not ordinarily constitute a licence for what would otherwise be unlawful conduct: see, eg, Lyle and Kinahan Ltd's Application ; Van Zeller v Mason, Cattley & Co ; and note the narrowness of the trade mark exception in s 51(3)(c) of the Trade Practices Act 1974 (Cth)".

In particular, the TMA does not immunise the use of a registered trade mark from the law of passing-off. Rather, s 230 makes special provision on the subject. The use of a registered trade mark may be enjoined at the suit of a third party who makes out a case of passing-off; however, damages may not be awarded if the defendant was unaware of the plaintiff's common law rights and had no reasonable means of finding this out when the defendant began its activity and this activity ceased immediately upon the defendant becoming so aware.

But while all these threshold propositions should be accepted, they do not foreclose submissions that there has been a sufficient degeneration of property rights brought about by the Packaging Act to engage s 51(xxxi). Rather, the threshold propositions do not cover the relevant field of property rights.

The rights given to registered trade mark owners to assign their marks with or without goodwill, to license authorised users, and to bring proceedings against other parties for infringement may be of great commercial value. So also the generation of goodwill derived from the distinctiveness of the registered trade mark which flows from its use. It will be necessary shortly to return to these matters.


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Page:JT International SA v Commonwealth of Australia.pdf/39

Gummow J

Much the same may be said of the other items of statutory intellectual property relied upon in the BAT Matter.

Copyright is "personal property" which is transmissible by assignment as provided in the Copyright Act and by will and by devolution by operation of law (s 196). Section 31(1)(b) of the Copyright Act specifies that copyright in relation to an artistic work is the exclusive right "(i) to reproduce the work in a material form; (ii) to publish the work; (iii) to communicate the work to the public". The effect of s 13(2) is that exclusive right includes the authorisation of another to do the acts specified in s 31(1)(b).

It is an infringement of the copyright in an artistic work, without the licence of the owner of the copyright, to do any of these acts in Australia or to authorise the doing of any of these acts in Australia (s 36(1)).

The Designs Act confers upon the registered owner of a registered design the "exclusive right" during the term of the registration, among other things, to make a product which embodies the design and to use such a product in any way for the purposes of any trade or business, and to authorise any person to engage in those activities (s 10(1)). These exclusive rights are "personal property" which are capable of assignment and devolution by will and by operation of law (s 10(2)). It is an infringement of a registered design, without the licence or authority of the registered owner, to engage in any activity in respect of which exclusive rights are conferred by s 10 (s 71). There are provisions for compulsory licences (s 90) and the revocation of registration after grant of a compulsory licence (s 92).

Section 13(1) of the Patents Act confers upon the patentee the "exclusive rights" to exploit the invention and to authorise that exploitation. These exclusive rights are "personal property" which are capable of assignment and of devolution by law (s 13(2)). The term "exploit" is defined as follows in Sched 1:

"exploit, in relation to an invention, includes:

1. where the invention is a product – make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or


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 2020, to February 28, 2020, MEEK was located in the area of Charlotte, North Carolina and/or Rock Hill, South Carolina. American Airlines records demonstrate that MEEK traveled on a flight from Charlotte, North Carolina, to Ronald Reagan Washington National Airport, within the Eastern District of Virginia, on February 28, 2020, at 12:57 PM.

16. Evidence from the iPhone 8 indicates that MEEK carried this phone with him during his travel from North Carolina to Virginia. For example, text messages recovered from the phone indicate it was used to send several text messages throughout the period of MEEK’s travel. Among other evidence, the phone contained a message dated February 26, 2020, MEEK texted a friend that he was in South Carolina, as well as messages dated February 28, 2020, in which MEEK discussed going to the airport, as well as MEEK’s messages to family members coordinating their joining him at his residence in Virginia that evening.

17. Additionally, on or about October 25, 2021, Kik provided records related to the Pawny4 account that indicated that the device used to access the Pawny4 Kik account was an iPhone. Kik also provided IP addresses used to access the account during the relevant time frame. From between February 24, 2020, and approximately 12:52 PM UTC on February 28, 2020, open-source information indicates the IP addresses geolocated to locations in North and South Carolina. The next IP address used to access the Pawny4 Kik account several hours later geolocated to Arlington, Virginia.

18. Furthermore, I know from my training and experience and from information provided by Kik, that a user can only be logged into a Kik account from one device at a time. If the user logs into their Kik account from another device, the Kik account will be logged out on the first device and chat messages are deleted.

19. Between at least February 25, 2020, and March 9, 2020, Pawny4 also engaged in a

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Gummow J

1. where the invention is a method or process – use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use."

Chapter 11, Pt 1 (ss 117-123) makes detailed provisions for infringement. Chapter 12 (ss 133-140) provides for compulsory licences and revocation if the reasonable requirements of the public with respect to the invention are not satisfied.

The upshot is that (a) while the Commonwealth and supporting interveners are correct in their submissions that it would be wrong to approach the issues arising under s 51(xxxi) of the Constitution on the footing that registration under the TMA or the Designs Act, a grant under the Patents Act, or the subsistence of copyright, confers some unconstrained right to exploit those items of intellectual property or an immunity from the operation of regulatory laws, (b) that is not sufficient to dispose of the case presented for the application of s 51(xxxi).

The central provisions of the Packaging Act should now be indicated, with some reference thereafter to provisions thereof which deal with the intersection between that statute and the TMA and the Designs Act.

Chapter 3, Pt 2, Div 1 (ss 31-36) of the Packaging Act creates a range of offences, with attached criminal and civil penalties. These offences include those for selling or supplying "tobacco products" in retail packaging which does not comply with a "tobacco product requirement" (s 31), purchasing such products other than for personal use (s 32), packaging such products for retail sale (s 33), manufacturing non-compliant retail packaging of tobacco products (s 34) and manufacturing tobacco products that are so packaged (s 35). Part 2, Div 2 (ss 37-39) creates offences with attached criminal and civil penalties for selling or supplying "tobacco products" which do not comply with a "tobacco product requirement" (s 37), purchasing such products other than for personal use (s 38), and manufacturing such products (s 39).

While Pt 2 of Ch 3 fixes upon "a person", Pt 3 of Ch 3 fixes upon the activities of "constitutional corporations" but otherwise follows the scheme of the offences in Pt 2.


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Gummow J

The term "tobacco product" is defined in s 4(1) so as to include processed tobacco and products of a non-therapeutic nature which are manufactured to be used for smoking, sucking, chewing or snuffing. It includes cigarettes. The expression "tobacco product requirement" is central to the formulation of the offences created by Ch 3. The definition of that expression in s 4(1) refers principally to requirements which are specified in Ch 2, Pt 2 (ss 18-29) or prescribed by the Packaging Regulations, which have been made under Ch 2, Pt 2. Accordingly, I now turn to Ch 2, Pt 2.

Section 18(1)(a) requires the outer surfaces of retail packaging not to have any decorative ridges, embossing, bulges or other irregularities of shape or texture. This would, it may be accepted, deny the application of the BAT Design. Regulation 2.1.1 of the Packaging Regulations requires that a cigarette pack not contain an opening, other than a fliptop lid, that can be re-closed or re-sealed after the opening is first opened. This, it may be accepted, denies the exploitation of the BAT Patent by the patentee or any licensee, as well as by an infringer.

No "trade mark" and no "mark" may appear anywhere on a "tobacco product" other than as permitted by the Packaging Regulations (s 26). The term "trade mark" is not defined and may be taken as including registered and common law trade marks. On the other hand, "mark" is defined in s 4(1) very widely so as to include "any line, letters, numbers, symbol, graphic or image". With respect to the appearance of trade marks upon retail packaging, the brand, business or company name for the tobacco products and any other trade mark permitted by the Packaging Regulations may appear, but otherwise no trade mark may appear (s 20(1), (3)). No trade mark may appear on any wrapper (which must be plastic or otherwise transparent), other than as permitted by the Packaging Regulations (s 22). In the absence of other colour prescription by the Packaging Regulations, all outer and inner surfaces of the retail packaging of tobacco products, and both sides of any lining of a cigarette pack, must have a matt finish and be "drab dark brown", save for health warnings, requirements of other relevant legislation, and the brand, business or company name for the tobacco product (s 19).

Section 42(b) of the TMA requires rejection of an application if the use of the trade mark "would be contrary to law"; but s 28(2) of the Packaging Act stipulates that for the purposes of s 42(b) of the TMA the Packaging Act does not render the use of a trade mark contrary to law. Further, s 28(3) of the Packaging Act provides that the operation of that statute does not make it reasonable or


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 Kik chat with USERNAME 1 in which he described a fantasy of abducting, drugging, and raping USERNAME 1 when she was a 12-year-old girl. Pawny4 also sent USERNAME 1 images of women breastfeeding. At least some of this conversation occurred within two hours of when MEEK used the phone to communicate with his family member.

20. Law enforcement also located approximately 100 additional images depicting children engaged in sexually explicit conduct on the iPhone 8. Most or all of these images were thumbnails and/or stored in cache memory.

C.Other Evidence of Distribution of Child Pornography

21. Law enforcement also seized a 2TB Silicon Power external hard drive from MEEK’s kitchen table during the execution of the search warrant. A review of the external hard drive indicated that it primarily contained back-ups of images and videos from other devices. Several folders were labeled “i6”, and there were folders titled “i5c lacie only”, “i4a”, “i4d”, “i5a”, “i6 lacie only”, and “i8pix080718a”. The folder labeled “i8pix080718a” contained a subfolder called “Bone Machine”, which was the device name for MEEK’s iPhone 8. Based on my training and experience, the structure and names of these folders indicate they were organized by iPhone model. There were also several zip files that were labeled with “iCloud Photos” followed by a number and “.zip”, for example “iCloud Photos 26.zip”. Based on my training and experience, the folders and zip files indicate these folders are backups for pictures and videos from an iCloud account.

22. The external hard drive contained an image titled “IMG_6817.PNG” that depicted a screenshot of the messaging application Telegram on an Apple device. The image was stored at the location pipehitter\0-iphone pix backup072220\iCloud Photos 6, which, as discussed, appears to indicate that the image was saved down to the hard drive from an iCloud backup. At the top of

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 the screenshot, the date on the Apple device was displayed as Sunday, April 5. The messaging application depicted the different chat threads on the left side, and the contents of a group chat on the right side. The top chat thread, which was the thread that was displayed on the right side, was titled “Cocks, Cunts, and Kids.” The group’s profile picture depicted a child eating a popsicle. The contents of this group chat were partially visible behind a bubble depicting the names of the group chat members. There were 13 members in the group chat and two were active at the time of the screenshot.

23. The last message sent on the group chat was from the user of the messaging application on the device where the screenshot was taken. In the second-to-last message in the group, another user in the chat had commented that people in the group were not sharing videos and photos anymore. The last message, sent in response, contained at least one video. The frozen frame of that video depicted a young girl performing or about to perform oral sex on a man’s visible erect penis, with a circle with a triangle in the center of the image indicating that it was a video. The user sending this video also stated, “Not everyone is as prolific as you.” This message was sent at 11:07 AM, and it contained two check marks indicating the message had been delivered to the server, and that a user had opened the chat since the message had been delivered.

24. A search warrant for MEEK’s iCloud account was obtained on November 14, 2022. The iCloud account contained backups of at least two of MEEK’s devices, and the contents of the backup included significant numbers of photos of MEEK’s family members and bills addressed to him at his known residence. During a review of the search warrant return, law enforcement located another copy of this screenshot. This second image contained metadata reflecting the image’s creation on April 5, 2020, at 11:07 AM UTC.

25. Another image located during the review of the iCloud search warrant return

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 depicted the Woodrow Wilson Bridge as seen from the vicinity of Jones Point Park in Alexandria, Virginia, within the Eastern District of Virginia. That image was created with the rear camera of an iPhone 8 on April 5, 2020, at 17:52 UTC. This image indicates MEEK was located in the Eastern District of Virginia at the time the child pornography video was distributed on Telegram, as discussed above.

26. The external hard drive also contained an image titled “IMG_5333.PNG”, saved in a folder titled “iphone pix backup”, which depicts a screen shot of an iPhone with the open applications/window shown as tiles. The open windows include the Safari internet browser with “Omegle” website displayed (other evidence, discussed below, indicates that MEEK used Omegle to chat with and attempt to chat with purported minors); a photo album with the heading “Tandies” with several breastfeeding images visible (the iPhone 8 contained an Instagram account with the username “TandiesClare” that purported to be collecting images of and stories about women breastfeeding, one of MEEK’s known interests); the Kik application; and a window that is only partially visible that appears to be the internet-based chat application Telegram.

27. The apparent Telegram tile shows a chat log containing several images on the right side of the chat, indicating they were sent from the user of that account. The images appear to be videos, as they include time stamps in the upper left corner. The images were sent at 1:33 PM and contain two check marks indicating the message had been delivered to the server and that the conversation had been opened once the message was present.

28. The sent images are consistent with child pornography. Also visible is a still image of a video that appears to be 1:30 in length. Based on my training and experience, I know this to be part of a series of child pornography images and videos known to law enforcement and contained in a NCMEC database of identified children.

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Gummow J

appropriate not to register a trade mark, to impose conditions or limitations upon registration or to revoke its registration.

Section 29 of the Packaging Act provides that failure to utilise a registered design as a result of complying with the Packaging Act does not provide a basis for a compulsory licence under s 90 of the Designs Act or for revocation under s 92.

Section 15(2) of the Packaging Act is a distinct and important provision. It states that:

"if, apart from this section, this Act would result in [an acquisition of property from a person otherwise than on just terms] because it would prevent the use of a trade mark or other sign on or in relation to the retail packaging of tobacco products, or on tobacco products, then despite any other provision of this Act, the trade mark or sign may be used on or in relation to the retail packaging of tobacco products, or on tobacco products, subject to any requirements that may be prescribed in the regulations for the purposes of this subsection."

Section 15(3) confirms the continued operation of any tobacco product requirement that does not result in such an acquisition.

The plaintiffs in the BAT Matter challenge the validity of s 15(2). It is undoubtedly accurate to say that the Parliament may not confer upon courts exercising federal jurisdiction a choice as to the content of the law to be applied in adjudicating a "matter", if the result of doing so is that the Parliament has not made a law supported by a head of legislative power. But s 15(2) is not of that character. Section 15(2) is a severability provision of a specific application but of the same genus as that of which s 15A of the Acts Interpretation Act 1901 (Cth) is another member. To apply s 15(2) would not be to "read up" the Packaging Act in the impermissible manner discussed in Pape v Federal Commissioner of Taxation.

The issue then posed by the demurrer and the leading questions reserved, in effect, is whether the tobacco product requirements of the Packaging Act do not amount to an "acquisition" of the property of the plaintiffs so that s 15(2) is


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Gummow J

not engaged. This presents two questions. The first is whether there is a "taking" or "deprivation" of the property of the plaintiffs and, if so, the second question is whether the Packaging Act effects an "acquisition" of property otherwise than on just terms as proscribed by s 51(xxxi) of the Constitution. The distinction between the two questions appears from the pithy statement of Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ to the effect that rights of property may be extinguished without being acquired. The submissions of the plaintiffs, in some instances directly, and in others with more subtlety, sought to displace or diminish the importance of that second question. That attempt was contrary to established authority in this Court.

For the reasons which follow, there is sufficient impairment, at least of the statutory intellectual property of the plaintiffs, to amount to a "taking", but there is no acquisition of any property. The result is the plaintiffs' cases for invalidity fail.

In Wurridjal v The Commonwealth Crennan J said of s 51(xxxi):

"It can be significant that rights which are diminished by subsequent legislation are statutory entitlements. Where a right which has no existence apart from statute is one that, of its nature, is susceptible to modification, legislation which effects a modification of that right is not necessarily legislation with respect to an acquisition of property within the meaning of s 51(xxxi) . It does not follow, however, that all rights which owe their existence to statute are ones which, of their nature, are susceptible to modification, as the contingency of subsequent legislative


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 29. This image shows a created date of January 12, 2022, but law enforcement believes this is the date that the image was either saved to the hard drive or to the iCloud backup, not the date the photo was taken.

D.Evidence of MEEK Engaging with Minors and Suspected Minors Through Snapchat

30. Forensic review of MEEK’s iPhone 8 revealed that the phone contained a Snapchat account with the username “hoolijax,” as well as several Snapchat conversations with unidentified females. A review of an iPhone 6 seized from MEEK’s RESIDENCE revealed the Snapchat username “hoolijax” had a Snapchat story associated with this phone.

31. A review of the Snapchat conversations stored on the iPhone 8 revealed a Snapchat conversation from between February 29, 2020., [sic] and March 2, 2020, between “hoolijax” and IDENTIFIED MINOR 2. IDENTIFIED MINOR 2 was a minor in 2020.

32. The stored communications did not appear to be the entirety of the Snapchat conversation, and the conversation only contained text messages (i.e., there were no pictures or videos found). The communication started with hoolijax asking “Who do you love most in the world?” IDENTIFIED MINOR 2 responded with the name of a public figure (“public figure 1”). Hoolijax went on to say, “She’s worthy of that big love. You are a beautiful girl and she should feel blessed that you love her more than anyone.” Later in the conversation, hoolijax stated, “I know someone who knows her really well. I thought I could help you. I won’t ask you anymore questions.” IDENTIFIED MINOR 2 then responded, “What” and “What did she say”. Hoolijax went on to say “She talked to my friend about you”, “She doesn’t hate you”, and “I’ll find out more tomorrow from him”.

33. The iPhone 8 also contained an image titled “5003.JPG” that depicts a screenshot of a Snapchat photograph. The image depicts the username for IDENTIFIED MINOR 2 on the

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 top of the image, and the image is focused on the nude body of IDENTIFIED MINOR 2. The breasts, abdomen, and pelvic area of IDENTIFIED MINOR 2 are visible. At the bottom of the image is a text banner that states “Tell [public figure 1] to talk to me or I am getting Snapchat”. The creation date for the image was December 15, 2019.

34. A review of images from the external hard drive revealed approximately 11 images of IDENTIFIED MINOR 2. One image, titled IMG_3379.PNG and dated January 12, 2022, (likely the date the image was saved to the hard drive) depicted a screenshot of a Snapchat image. IDENTIFIED MINOR 2’s Snapchat username was visible at the top of the image. The image depicted IDENTIFIED MINOR 2 with her shirt pulled up to expose her breasts, and her pants pulled down to expose her pubic region. The bottom of the image contains a text banner that states “Who’s little girl do I belong to”. Two additional images also displayed IDENTIFIED MINOR 2’s pelvic area, but her vagina was not visible through the pubic hair.

35. Law enforcement interviewed IDENTIFIED MINOR 2, who confirmed that MEEK and other men had approached her through Snapchat and had pressured her to provide pictures depicting sexually explicit conduct.

47.36. [sic] Review of the electronic devices seized during the search warrant has also resulted in significant evidence that MEEK has engaged directly, and attempted to engage, with minors online on platforms and applications other than Snapchat.

48.37. [sic] Law enforcement located images of MEEK video chatting with self-identified minors on Omegle on the external hard drive. Omegle is a communication platform in which a user can be randomly matched with another user for an anonymous text communication, video communication, or both. It is possible for Omegle users to enter search terms that make it more likely to be matched with certain categories of people, including likely minors.

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Gummow J

modification or extinguishment does not automatically remove a statutory right from the scope of s 51(xxxi).

Putting to one side statutory rights which replace existing general law rights, the extent to which a right created by statute may be modified by subsequent legislation without amounting to an acquisition of property under s 51(xxxi) must depend upon the nature of the right created by statute. It may be evident in the express terms of the statute that the right is subject to subsequent statutory variation. It may be clear from the scope of the rights conferred by the statute that what appears to be a new impingement on the rights was in fact always a limitation inherent in those rights. The statutory right may also be a part of a scheme of statutory entitlements which will inevitably require modification over time ."

It should be accepted that while the registered trade marks owe their legal character to their registration under the TMA, rather than to the general law, it would be an error to proceed on the footing that because some valuable rights conferred by statute, such as fishing licences and petroleum exploration licences, have been held to fall outside the constitutional criterion of "property", no right sourced in federal law may fall within it.

Such licences as those just mentioned commonly are granted so as to lift a statutory prohibition imposed upon engagement in the activity in question and the grant is expressly made subject to the terms of the statutory regime as they stand from time to time. That is not the case with the various species of


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14c. 36

(2) The duty to conﬁrm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which falls within subsection (1).

23.—(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

(2) A certificate signed by a Minister of the Crown certifying that the information to which it applies was directly or indirectly supplied by, or relates to, any of the bodies specified in subsection (3) shall, subject to section 60, be conclusive evidence of that fact.

(3) The bodies referred to in subsections (1) and (2) are—
 * (a) the Security Service,
 * (b) the Secret Intelligence Service,
 * (c) the Government Communications Headquarters,
 * (d) the special forces,
 * (e) the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000,
 * (f) the Tribunal established under section 7 of the Interception of Communications Act 1985,
 * (g) the Tribunal established under section 5 of the Security Service Act 1989,
 * (h) the Tribunal established under section 9 of the Intelligence Services Act 1994,
 * (i) the Security Vetting Appeals Panel,
 * (j) the Security Commission,
 * (k) the National Criminal Intelligence Service, and
 * (l) the Service Authority for the National Criminal Intelligence Service.

(4) In subsection (3)(c) “the Government Communications Headquarters” includes any unit or part of a unit of the armed forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions.

(5) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

24.—(1) Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.

(2) The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security.

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 49.38. [sic] For example, an image on the external hard drive titled “IMG_6957.JPG” depicts the screen of another device. Visible on that screen is an Omegle video chat. The other person in the chat (identified as “Stranger” per Omegle convention) identified themselves as 14 years old in the text portion of the chat and provided their Kik username. MEEK’s portion of the video chat was also visible in the image. MEEK’s nude abdomen, legs, and penis were visible. MEEK can be seen holding his penis with his left hand. This image was taken with an Apple iPhone 6, and the creation date of the image was December 20, 2016. A file on the external hard drive titled “IMG_7388.JPG” depicts a similar Omegle chat in which the other participant in the chat identified herself as 15 years old and provided a Snapchat username. MEEK’s nude abdomen, legs, and penis were again visible, and MEEK was again holding his penis in his left hand. In this image, however, the video display of the other user was visible, and a female’s breasts were exposed. This image was taken with an Apple iPhone 6, and the creation date of the image was December 28, 2016.

50.39. [sic] Also on the external hard drive, law enforcement located a screen shot titled “IMG_0095.PNG” of a text conversation on an unknown platform. In the text conversation, a user from whose point of view the text conversation was captured asked “Age?”, and the other user responded “I don’t want to say lol”. The first user stated, “Say” and “It’s fine”, and the other user responded, “Ok, I’m basically 15”. The first user then asked, “Would you let me kiss you?”. Those are the only portions of this text conversation visible in the screenshot.

51.40. [sic] Law enforcement also located on the external hard drive several images depicting screen shots of Instagram conversations. Based on the language and the text of the conversations, as well as the display picture showing what appeared to be a minor female, it appears that MEEK was using an account with the display name “taytayjadar” in which he posed as a minor female to

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Gummow J

"intellectual property" within the description in s 51(xviii) of the Constitution, namely copyrights, patents of inventions and designs and trade marks. It is true that upon grounds specified in the relevant statutes patents and designs may be revoked and trade mark registrations may be expunged from the register. But even at general law, an estate or interest in land or other property may be defeasible upon the operation of a condition subsequent in the grant, without losing its proprietary nature.

In the end, one cannot gainsay two statements by Windeyer J. The first, in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd, is that "although the proposition may involve one's conception of the nature of property, it can hardly be said that a registered trade mark is not a species of property of the person whom the statute describes as its registered [owner], and which it permits him to assign" (emphasis added). The second, in Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation, is that the essential nature of copyright is "a negative right … a power to prevent the making of a physical thing by copying" rather than "a right in an existing physical thing". Hence, copyright is "properly called an incorporeal right". Subsequently, in Australian Tape Manufacturers Association Ltd v The Commonwealth, Dawson and Toohey JJ said there could be no doubt "that copyright constitutes property within the scope of s 51(xxxi)". The same may be said of patents and registered designs.

It also should be accepted that at general law the goodwill attached to the business of the plaintiff by reason of the exploitation of trade marks and associated get-up answers the description of property. In Federal Commissioner of Taxation v Murry it was said in the joint reasons:

"From the viewpoint of the proprietors of a business and subsequent purchasers, goodwill is an asset of the business because it is


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Rh

(3) A certificate signed by a Minister of the Crown certifying that exemption from section 1(1)(b), or from section 1(1)(a) and (b), is, or at any time was, required for the purpose of safeguarding national security shall, subject to section 60, be conclusive evidence of that fact.

(4) A certificate under subsection (3) may identify the information to which it applies by means of a general description and may be expressed to have prospective effect.

25.—(1) A document purporting to be a certificate under section 23(2) or 24(3) shall be received in evidence and deemed to be such a certificate unless the contrary is proved.

(2) A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under section 23(2) or 24(3) shall in any legal proceedings be evidence (or, in Scotland, suﬃcient evidence) of that certificate.

(3) The power conferred by section 23(2) or 24(3) on a Minister of the Crown shall not be exercisable except by a Minister who is a member of the Cabinet or by the Attorney General, the Advocate General for Scotland or the Attorney General for Northern Ireland.

26.—(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
 * (a) the defence of the British Islands or of any colony, or
 * (b) the capability, effectiveness or security of any relevant forces.

(2) In subsection (1)(b) “relevant forces” means—
 * (a) the armed forces of the Crown, and
 * (b) any forces co-operating with those forces,

or any part of any of those forces.

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).

27.—(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
 * (a) relations between the United Kingdom and any other State,
 * (b) relations between the United Kingdom and any international organisation or international court,
 * (c) the interests of the United Kingdom abroad, or
 * (d) the promotion or protection by the United Kingdom of its interests abroad.

(2) Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court.

(3) For the purposes of this section, any information obtained from a State, organisation or court is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State, organisation or court to expect that it will be so held.

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 communicate with other minors on Instagram and solicit pictures.

52.41. [sic] For example, law enforcement located screen shots of a chat in which taytayjader received pictures from a girl who appears to be a minor. The screen shot conversation revealed the other girl did not want to expose her breasts, and taytayjader responds, “ok why did u say u wud??? Maybe I wouldn’t show mine” and “I trust u”. The other girl then responds, “Fine ill show u my boobs”. In another screenshot, Taytayjader said “I like this one the best but I thot u were gonna pose without the shorts lol.” Later, when the other user asks “will u take ur panties off? So I can rub my face in there”, taytayjader responds “if u wanna see u know what pic u should send next lol”. Although the order of the pictures cannot be determined due to the way the chat was recovered, the girl sends pictures of her exposed breasts, a picture of herself wearing a bra, and pictures of the girl’s covered genital region and buttocks.

53.42. [sic] Finally, the external hard drive contained hundreds of screen shots of girls’ social media accounts. Some of these accounts appear to be from dating apps. Many of these accounts depict child erotica; for example, the external hard drive contained at least dozens of screenshots from various social media applications depicting girls doing splits.

F.Possession of Child Pornography

54.43. [sic] During the search of MEEK’s RESIDENCE, law enforcement also located an Apple laptop in the living room area on a trunk to the right of the couch. A review of the images and videos on the computer revealed that approximately 90 images and videos of child pornography were located on the device. For example, one video compiles multiple clips, including a scene where an adult female places her tongue on a naked toddler’s vagina and a scene where an adult male inserts his penis into a toddler’s vagina. This video was located in a Downloads folder on the computer’s hard drive.

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 55.44. [sic] A review of the external hard drive revealed approximately 58 images and videos of child pornography. For example, one image depicted a nude prepubescent boy with a strap around his face with a device forcing his mouth open; his hands are bound to his feet. The boy is wearing a “Santa Claus” style hat with a bow pictured around his waist above his penis. Another series of images depicted IDENTIFIED MINOR 1 in progressive states of undress, culminating in a picture of her genitals. The pictures of IDENTIFIED MINOR 1 appear to have been saved to the hard drive in November 2014.

56.45. [sic] As previously discussed, the images and videos of child pornography located on the external hard drive were located in folders that were organized by the respective iPhone backup.

57.46. [sic] Law enforcement located 1B15 (an iPhone 6) in MEEK’s bedroom on top of the nightstand. A review of the images and videos on the device revealed approximately 34 images and videos of suspected child pornography, though law enforcement has not been able to conclusively establish the age of the individuals depicted. For example, an imaged titled IMG_9205.PNG depicts what appears to be an adolescent female with her vagina exposed, and the focal point of the image is on her vagina. The word “Love” is superimposed on the image.

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 58.47. [sic] Based upon the above information, I respectfully submit there is probable cause to believe that JAMES GORDON MEEK transported child pornography, in violation of 18 U.S.C. § 2252(a)(1).

Sworn and subscribed before me by reliable telephonic means pursuant to Fed. R. Crim. P. 4.1 this 31st day of January, 2023.

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Page:JT International SA v Commonwealth of Australia.pdf/139

Kiefel J

argument that the Commonwealth was saved the cost of acquiring the space for its own advertising takes the matter no further. It would not have had to pay for such advertising in any event, given that it could require warnings of any size to be displayed on the packaging.

It was also said that the Quitline service might be said to benefit from the provisions of the Packaging Act and the Packaging Regulations. It does not seem possible to identify a relevant benefit or advantage of a proprietary kind that has accrued to that service. Any increased promotion of the service, in part through the use of the Quitline marks, might result in its greater use, but this takes the argument no further than the possible attainment of the objects of the Packaging Act – to improve the health of present consumers of tobacco products by encouraging them to stop using these products.

The objects of the Packaging Act include the improvement of public health by discouraging persons from using tobacco products. The Packaging Act seeks to achieve that object by further reducing the attractiveness of the packaging of the products and the recall of brand name and other distinctive marks. Whether that object will be largely achieved cannot presently be known.

The Packaging Act and the Packaging Regulations, in conjunction with the 2004 and 2011 Information Standards, may be a rare form of regulation of the packaging of a harmful product, in that they require those distributing a product to place warnings on the product's packaging which might dissuade persons from using the product at all. However, the plaintiffs did not seek to argue that the measures were not appropriate to achieve the statutory objectives or disproportionate to them, or that the legislation was enacted for purposes other than those relating to public health. In the end result, their argument was only that the possible achievement of the statutory objectives of the Packaging Act was sufficient to amount to an acquisition for the purposes of s 51(xxxi). It is possible that there be a statutory objective of acquiring property, as there was in the Bank Nationalisation Case, but there is no such purpose evident in the present case. The central statutory object of the Packaging Act is to dissuade persons from using tobacco products. If that object were to be effective, the plaintiffs' businesses may be harmed, but the Commonwealth does not thereby acquire something in the nature of property itself.

As to the proceeding concerning the BAT plaintiffs, I agree with the answers to the questions reserved proposed by Gummow J, save that I would answer Question (4) "Unnecessary to answer".

As to the proceeding concerning JTI, I agree with the orders proposed by Gummow J.


text: United States v. Meek (affidavit)

title: United States v. Meek (affidavit)


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24 the luckiest girl in the world. Would you consider yourself the luckiest girl in the world if you married a man who owed $80,000? Would you think you were in for a life of bliss if your husband had no position and stood small chance of getting a position for several years? Would you think you stood on the top of the world if your husband were dragged from the honeymoon to answer a charge of bigamy?

No, you wouldn't. Very likely you would go home to father and the certainty of three meals a day.

Mrs. Valentino, naturally enough, won't admit that she wasn't the luckiest girl in the world. But she will admit that the first months of their married life weren't all moonlight and roses. For moonlight please substitute the unbecoming glare of publicity and for roses please substi-

tute legal papers. But it's all over now. In her apartment at the Hotel des Artistes, Mrs. Valentino prepared for a trip to France and Italy. Another honeymoon? No, just a vacation. It will be a rest from the long, dreary and lonesome months spent on the dancing tour.

are all sorts of movie wives. There are the frivolous ones who step out, there are the home-loving ones who do the mending, there are the wives with careers of their own and there are the wives with influence. Mrs. Valentino is one of the few wives with influence. She reminds you of Mary Pickford. She talks business in a sane, cool-headed way. She is engrossed in her husband's success and his ambitions. Like Mary Pickford, she is the Disraeli, the Colonel House and the Charles Evans Hughes of the household. And, naturally, her husband thinks she is the Whole Works.

is much too sophisticated to talk about love and marriage. She won't give you any rule about How to Hold a Husband. She knows that if there were an infallible method the secret would be worth a million dollars.

Too much publicity about her marriage has made her sensitive and shy about talking about her romance. She believes that an over-emphasis of the Valentino personality has blinded the public to the fact that Valentino can act. And so her whole fight—and his

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SCREENLAND ''I lasted about twenty seconds. It was a trick horse. The rest you can guess. I landed a fall instead of a job.''

I can't do anything else when I get to Hollywood, I'll do extra work"—I'd like to het that nine out of ten of you aspirants to movie fame have secretly admitted this to yourselves. But you little dream that what is demanded of us in extra work is ten times more than what is demanded of a star.

For one all too short period of my Hollywood career, I Ritzed about like a Jazz-Queen. Didn't I have a job at $150 a week with Gilbert Tarryton? I did—for two weeks. But Nemesis still pursued me. The "Hell's Litany" company went broke and my contract was a scrap of paper. When I found myself outside the studio doors, well then—I jumped at whatever came my way.

One day a call came from Hope Hampton's director. Was there a girl at the Studio Club who could both sing and play the piano very well, and both at the same time? Anyhow, the job was wished on me. I reported at nine A. M. on Sunday morning at a little Victrola and music store on Broadway in Los Angeles. I was to be an "ivory tickler" who jazzed off popular melodies, chewed gum and sang—over and over again, the two or three hits of the hour. This sounds easy. Try it sometime.

I sang and chewed and pounded till I was dizzy, but I felt an utter failure that night. I needed the seven fifty they gave me for the day's work, or I'd have mailed it back. I knew I didn't make the grade.

next day the Service Bureau wanted three girls to roller-skate. Again I was pushed in on the job. This time I had no fear, because as a child I used to neglect the higher branches to improve the lower limbs. Many a time and oft, have I "hookied it" from school to roller-skate around Mt. Tom on Riverside Drive.

So, forgetting the years that have intervened, I vowed to the director that I could skate. So I was promised three days' work oh my glib assurances.

My first hours on those skates! Trying to look graceful, keep my balance, and talk naturally to the spectators made one of the most painful memories of my life. Again I barely made the grade. However, I now feel I must practice roller-skating several hours daily, so I won't feel a fool if ever (large if) another chance comes to do roller skating. I might be called on to double for a star, or I might be a star myself some day.

A girl I knew called me up and told me there was a great job coming up at Ince. Just a few girls to be used all through a picture in riding habits. She knew I'd get it if I went out all dressed up in a stunning habit. She had done this and had landed the job.

The next day the casting director called me up about this. He said,

"Put on your habit and come right out. I can promise sixty-five dollars a week for several weeks."

Scattering cats! All the money I could borrow in one's, two's and five's I gathered together, went forth and bought me a real riding habit—latest model, all wool; rented a taxi and drove in state to Culver City. They liked my looks. They led me to a path and helped me mount a horse. A trick horse. I lasted about twenty seconds. The rest you will guess. I landed a fall instead of the job, and I tore a large hole in my brand new riding breeches. They have never graced my girlish figure since

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text: Supplement to the Fourth, Fifth, and Sixth Editions of the Encyclopædia Britannica/Anville (Jean Baptiste Bourguignon D’)


text:
Page:JT International SA v Commonwealth of Australia.pdf/46

Gummow J

the valuable right or privilege to use the other assets of the business as a business to produce income. It is the right or privilege to make use of all that constitutes 'the attractive force which brings in custom'. Goodwill is correctly identified as property, therefore, because it is the legal right or privilege to conduct a business in substantially the same manner and by substantially the same means that have attracted custom to it. It is a right or privilege that is inseparable from the conduct of the business ."

And, as Windeyer J emphasised in Colbeam Palmer, protection of property is the foundation in equity of the passing-off action. Further, it is well established that such an action may protect the goodwill derived from slogans and visual images which build up an association with the business of the plaintiff.

However, it should be borne in mind that all these items of "property" are, as Higgins J put it, "artificial products of society", not "physical objects" the boundaries of each class of which "are fixed by external nature"; more precisely, as Isaacs J emphasised with respect to trade marks, these are not affirmative rights like the property in goods and are not rights "in gross, or in the abstract".

These considerations direct further attention to the identification of those rights which constitute the property in question in these cases. This is an essential first step in the identification of that of which there has been a


text: Supplement to the Fourth, Fifth, and Sixth Editions of the Encyclopædia Britannica/Apiary


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 196 with scorn, said: "And pray, ʿAmmār, how long hast thou been counsellor to the Muslims? Let the Beni Hāshim and the Beni Umeiya speak for themselves." But ʿAmmār would not be silent; whereupon one cried angrily, "Thou passest beyond thy bounds, O son of Sumeiya; who art thou, thus to counsel Ḳoreish?" Saʿd, seeing the strife wax warm, said to ʿAbd ar-Raḥmān: "Finish thy work forthwith, or flames of discord will burst forth." "Silence, ye people!" cried ʿAbd ar-Raḥmān, "Be quiet, or ye will bring evil on yourselves. The determination of this matter rests with me." So saying, he called ʿAlī to the front;—"Dost thou bind thyself by the covenant of the Lord to do all according to the Book of the Lord, the example of the Prophet, and the precedent of his Successors?" "I hope," responded ʿAlī, "that I should do so; I will act according to the best of my knowledge and ability." Then he put the same question to ʿOthmān, who answered unconditionally,—"Yea, I will." Whereupon, either dissatisfied with ʿAlī's hesitating answer, or having already decided in his mind against him, ʿAbd ar-Raḥmān raised his face toward heaven, and taking ʿOthmān by the hand, prayed thus aloud:—"O Lord, do Thou hearken now and bear me witness. Verily the burden that is around my neck, the same do I place round the neck of ʿOthmān." So saying, he saluted him as Caliph, and the people followed his example.

It was the first day of the New year, the 24th of the Hijra. After two or three days spent in receiving the homage of the people, ʿOthmān ascended the pulpit, and made a brief and modest speech. "The first attempt," he said, "was always difficult, for he was unused to speak in public. It would be his duty in the future to address them, and the Lord would teach him how."

Though ʿAlī, like the rest, took the oath of allegiance, yet his partisans were much displeased, and he himself upbraided ʿAbd ar-Raḥmān bitterly with the desire to keep the supreme power out of the Prophet's house and brotherhood. "Beware," said ʿAbd ar-Raḥmān, with prophetic


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deprivation or "taking". It is convenient first to say something respecting the position in the United States.

Reference was made in the submissions of various parties and interveners to decisions of the United States Supreme Court upon the "taking" clause of the Fifth Amendment.

Both in this provision and in s 51(xxxi) the term "property" is used with respect to the group of rights inhering in ownership and, as the Supreme Court put it, not in any "vulgar and untechnical sense". In this Court, it has been emphasised that "to characterise something as a proprietary right … is not to say that it has all the indicia of other things called proprietary rights" and that "the protection given to property rights varies with the nature of the right" ; this understanding of the general law has influenced the interpretation of s 51(xxxi).

Perhaps it was with this similarity of approach in mind that in 1941 Dixon J said in Andrews v Howell :

"The source of s 51(xxxi) is to be found in the fifth amendment of the Constitution of the United States, which qualifies the power of the United States to expropriate property by requiring that it should be done on payment of fair compensation."

However, 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. As early as 1944, McTiernan J, after referring to several decisions of the United States Supreme Court, said that the differences between the two constitutional provisions "would suggest a need for caution in the application of the American decisions regarding the power of eminent domain and the safeguards upon its exercise". Nine distinctions were


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Page:Notes and Queries - Series 1 - Volume 1.djvu/54

44 Dominus fac totum with the king"—seems to point us to some ecclesiastical origin for the derivation of our familiar word "factotum." Does any one know the precise whereabouts of such a phrase in the Ancient Service books?

Mr. Editor,—In the parish church in which I officiate are preserved four ancient and curious alms-basins, of latten; they appear to be of Flemish workmanship, and, from inventories of the church goods, made at different times, we may gather that they were given for their present use during the seventeenth century. They represent:—1. The Martyrdom of St. Sebastian; 2. The Annunciation of the Blessed Virgin; 3. The Temptation in Eden; and 4. The Spies bearing the grapes. Around each of these subjects is a legend in foreign characters, "" I have submitted this inscription to antiquaries and German scholars in vain; it still remains a puzzle. It has been suggested that it may have been only an arbitrary mark of the maker. Is this probable? If not, will you, or one of your readers, give the interpretation to

It is our purpose from time to time to call the attention of our book-buying friends to the approaching sales of any collections which may seem to us to deserve their attention: and to any catalogues which may reach us containing books of great rarity or curiosity. Had we entertained no such intention we should have shown our respect for the memory of that intelligent, obliging, and honourable member of the bookselling profession (to whom a literary man rarely addressed a, without receiving in reply a of information worth preserving), the late Mr. Thomas Rodd, by announcing that the sale of the first portion of his extensive and valuable stock of books will commence on Monday next the 19th instant, and occupy the remainder of that week.

The following Lots are among the specimens of the rarities contained in this portion of Mr. Rodd's curious stock: —

189, Orders, Declarations, Proclamations, &c. 1657 to 1660, the original Papers and Broadsides collected and bound in 1 vol. calf.

This very important volume contains the Acts, &c. during the period intervening between Scobell's Collection and the recognized Statutes of Charles II. As the laws during this period have never been collected into a regular edition, a series of them is of the greatest rarity.

194. Æsop,, curious wood engravings black letter, , imperfect, old russia

This edition is altogether unknown and undescribed. The present copy commences with signature C 1, and extends to sig. S (v) in sixes, on the reverse of which is the above colophon, with Pynson's device underneath. It wants sheets A and B, and E (iiii).

380 Cellii (E.) Eques Auratus Anglo-Wirtembergicus: id est, actus admodum Solennis; quo Jacobus Rex Angliæ, &c. Regii Garteriorum supremus ac Frid. Ducem Wirtembergicum, per Rob. Spencer Barnoem declaravit, portrait woodcut

This was Sir Wm. Dethick's copy, Garter King at Arms, who accompanied Lord Spencer in his journey: in it he has written some very curious circumstances respecting the journey, and of the ill-treatment he experienced from Sir Rob. Spencer and Wm. Seager, "a poore paynter, sonne of a base fleminge and spawne of a Jew," with an account of the family of Dethick, or De Dyk, of Derbyshire and Staffordshire.

475

black letter, one leaf inlaid and three or four beautifully fac-similed, otherwise a fine and perfect copy, russia extra, gilt leaves, by C. Lewis

This work consists of 139 leaves, exclusive of the table, occupying two leaves. The colophon of the Printer is one of great interest, filling the two last pages. It thus commences:—"Thur endeth this boke, whiche xpyne of pyse made and drewe out of the boke named Vegecius de re militari and out of tharbre of bataylles, wyth many other thynges sett in to the same requisite to werre and batailles, which boke beyng in Frēnshe was delyvered to me Willm Caxton by the most crysten kinge and sedoubted prynce, my naturel and souvrayn


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 644] voice,—"take heed that, speaking thus, thou makest not a way against thyself, whereof thou shalt repent hereafter." And so ʿAlī passed out with the words of Jacob on his lips; "Surely patience becometh me. The Lord is my helper against that which ye devise." Shortly after, Ṭalḥa returned to Medīna. ʿOthmān acquainted him with what had happened, and as his vote would have ruled the majority, declared that if he dissented, he was prepared even then to resign the Caliphate. But on learning that all the people had agreed, Ṭalḥa also swore allegiance.

The choice thus made by ʿAbd ar-Raḥmān sowed the seeds of sad disaster. It led to dissensions which for years bathed the Muslim world in blood, threatened the existence of the Faith, and to this day divide believers in hopeless and embittered schism. But ʿAbd ar-Raḥmān could hardly have anticipated the wanton, weak, and wavering policy of ʿOthmān, which slowly but surely brought about these results. There is no reason to think that, in discharging his functions as Umpire, he acted otherwise than loyally and, as he thought, for the best.

An embarrassing incident followed the accession of ʿOthmān. Some one told ʿObeidallah, son of the deceased Caliph, that Abu Luʾluʾa had been seen shortly before in private converse with Al-Hormuzān, the Persian prince, and with a Christian slave belonging to Saʿd; and that, when surprised, the three separated, dropping a poniard such as that with which the assassin had wounded ʿOmar. Rashly assuming a conspiracy, the infuriated ʿObeidallah rushed with drawn sword to avenge his father's death, and slew both the


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drawn in Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health.

The Fifth Amendment, which also applies to the States by the medium of the Fourteenth Amendment guarantee against the deprivation of property without due process of law, is expressed in the form of a negative , appears with the due process clause, and speaks of private property being "taken" for "public use". On the other hand, s 51(xxxi) is directed to the Parliament and speaks of "acquisition" for any "purpose" in respect of which there is federal legislative power. "Acquisition" is a term which indicates, as Gibbs J put it in Trade Practices Commission v Tooth & Co Ltd, "not every compulsory divesting of property is an acquisition within s 51(xxxi)".

It should be emphasised that under the Fifth Amendment, even if just compensation be made, the "taking" must be for "public use", that is to say for "the public good, the public necessity or the public utility". In Kelo v City of New London, the Supreme Court ruled that the federal judiciary should not make an independent judgment as to whether a taking of private property is for a "public use"; rather, the question is whether the government authority, federal, State or local, can make a rational argument that the taking resulted in a "public benefit".


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 198 prince and the slave. Saʿd, incensed at the loss of his slave, seized ʿObeidallah, still reeking with his victims' blood, and carried him, as the murderer of a believer (for Al-Hormuzān had professed the Muslim faith), before the Caliph. A council was called. There was not a tittle of evidence, or presumption even, of the supposed conspiracy. ʿAlī conceived that, according to the law, ʿObeidallah must be put to death as having slain a believer without due cause. Others were shocked at the proposal:—"But yesterday," they said, "the Commander of the Faithful lost his life, and to-day thou wilt put his son to death!" Moved by the appeal, ʿOthmān assumed the responsibility of naming a money compensation in lieu of blood, and this he paid himself. Some feeling was excited, and people said that the Caliph was already departing from the strict letter of the law. The poet, Ibn Lebīd, satirised both the murderer, and the Caliph who had let him off, in stinging verse; but he was silenced. So the matter dropped, and there is no reason to think that the judgment was generally disapproved.

One of ʿOthmān's first acts was to increase the stipends of the chief men all round, by the addition to each of one hundred dirhems. The act, no doubt, was popular, but it gave promise of extravagance in the new administration.


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Gummow J

The effect of the United States decisions is to accept that the "taking" clause may be engaged without what the decisions in this Court would classify as an "acquisition". However, the greater scope this gives to the Fifth Amendment has been tempered by a doctrine permitting "regulation" which does not amount to a "taking" ; "regulation" will amount to a "taking" if the regulatory actions in question are "functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain".

Reference was made in several submissions to the characterisation of the Packaging Act as a law of "trade regulation" as determinative or at least indicative of the placement of the law outside the application of s 51(xxxi). However, to adopt this course would be to provide a false frame of reference. The caution given by Mason J in Trade Practices Commission v Tooth & Co Ltd should be borne in mind. His Honour there said:

"It is one thing to say that a law which is merely regulatory and does not provide for the acquisition of title to property is not a law with respect to acquisition of property."

Remarks by Brennan J in The Commonwealth v Tasmania (The Tasmanian Dam Case) also are relevant here:

"In the United States, where the Fifth Amendment directed that private property should not be 'taken' without just compensation, the Supreme Court construed the provision as one 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole': Armstrong v United States . If this Court were to construe s 51(xxxi) so that its limitation applies to laws which regulate or restrict use and enjoyment of proprietary rights but which do not provide for the acquisition of such rights, it would be necessary to identify a touchstone for applying the limitation to some regulatory laws and not to others. The


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 Sean-Chaint Na nDéise

THE IDIOM OF LIVING IRISH

REV. M. SHEEHAN, D.Ph. Professor of Classics, St. Patrick's College, Maynooth.