Betfair Pty Limited v Western Australia

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Betting and Racing Legislation Amendment Act 2006 (WA) inserted ss 24(1aa) and 27D(1) into Betting Control Act 1954 (WA) ("WA Act") – Section 24(1aa) of WA Act provides that a person who bets through use of a betting exchange commits an offence – Section 27D(1) of WA Act provides that a person who, in Western Australia or elsewhere, publishes or otherwise makes available a Western Australian race field in the course of business commits an offence unless the person is authorised to do so by an approval, and complies with the conditions of that approval – First plaintiff was granted a licence under Div 5 of Pt 4A of the Gaming Control Act 1993 (Tas) to operate a betting exchange – Second plaintiff used computer connected to internet to place with first plaintiff bets on the outcome of races and other sporting events in Western Australia – Whether ss 24(1aa) and 27D(1) of WA Act are valid.

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Whether ss 24(1aa) and 27D(1) of WA Act impose impermissible disadvantage on first plaintiff that is not imposed on Western Australian wagering operators – Whether ss 24(1aa) and 27D(1) of the WA Act impermissibly preclude, on the supply side, increase in competition within the national market for betting services provided, on the demand side, by second plaintiff.

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Interpretation – Source of present doctrine respecting s 92 of Constitution – Role of s 92 to create national markets expressive of national unity – Object of s 92 in application to trade and commerce among States is to eliminate protection – Performance of role and fulfilment of object of s 92 changes with developments in legal and economic context in which s 92 operates – Utility of concept of "people of a State".

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Significance for present operation of s 92 of general understanding of concepts of "free trade" and "protection" against which provision was framed – "Free trade" understood in Australian colonies and British Empire as antithesis of "protection" – Significance of debates about free trade at time of federation.

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Relevance of United States decisions decided before 1900 to understanding provenance of s 92.

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Relevance of presence of non-protectionist objectives in legislation the practical effect of which is to discriminate against interstate trade in protectionist sense.

Constitutional law (Cth) – Freedom of interstate trade, commerce and intercourse – Limitations of proposition that each State legislature has power to enact legislation for "well-being" of people of State – Application of "appropriate and adapted" criterion to laws discriminating against interstate trade in protectionist sense – Application of criterion of "reasonable necessity".

Words and phrases – "appropriate and adapted", "free trade", "proportionality", "protection", "reasonable necessity".

Constitution – s 92.

Gaming Control Act 1993 (Tas) – Div 5 Pt 4A.

Betting Control Act 1954 (WA) – ss 24(1aa), 27D(1).

Betting and Racing Legislation Amendment Act 2006 (WA).