Betfair Pty Limited & Anor v State of Western Australia

Betfair Pty Limited and another sought declarations and an injunction against the State of Western Australia concerning the validity of certain provisions of the Western Australian Racing Penalties Act 2009 (WA) (the Act). The dispute arose from the Act's imposition of a betting levy on betting exchanges, which Betfair argued was invalid and unconstitutional. The matter was heard by Gummow J of the High Court of Australia.

The primary legal issue before the Court was whether the betting levy imposed by the Act, specifically section 16(1)(a), was invalid by reason of contravening section 92 of the Constitution, which guarantees freedom of interstate and international trade, commerce, and intercourse. Betfair contended that the levy discriminated against interstate and international betting operations, thereby impermissibly burdening interstate commerce.

Gummow J applied the principles established in cases concerning section 92 of the Constitution, particularly the test for determining whether a law impermissibly burdens interstate trade. His Honour considered whether the betting levy imposed a tax or charge that was discriminatory in its operation or effect against interstate commerce, or whether it imposed a burden that was not proportionate to the costs incurred by the State in regulating the activity. His Honour found that the levy was not discriminatory in a way that contravened section 92, as it applied to all betting operations within Western Australia, regardless of their origin. The Court concluded that the Act did not impose a burden on interstate commerce that was disproportionate to the legitimate regulatory interests of the State.

The application for declarations and an injunction was dismissed.