British American Tobacco Australia Ltd v Western Australia

British American Tobacco Australia Ltd and others (the applicants) sought declarations and injunctions against the State of Western Australia (the respondent) concerning the validity of certain provisions of the *Tobacco Control Act 1990* (WA) and regulations made thereunder. The applicants, manufacturers and distributors of tobacco products, challenged the lawfulness of prohibitions on the advertising, promotion, and sponsorship of tobacco products, arguing that these provisions were beyond the legislative power of the Western Australian Parliament. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the impugned provisions of the *Tobacco Control Act 1990* (WA) and its associated regulations were validly enacted under the legislative powers of the State of Western Australia, or whether they were invalid by reason of inconsistency with the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)), or alternatively, whether they were beyond the legislative competence of the State. Specifically, the applicants contended that the prohibitions on advertising and promotion interfered with interstate and overseas trade and commerce, thereby infringing section 92 of the *Australian Constitution*.

The High Court, by majority, held that the provisions of the *Tobacco Control Act 1990* (WA) and the regulations were valid. The Court reasoned that the Act did not, in its operation, discriminate against interstate or overseas trade and commerce in a manner that would render it inconsistent with section 92 of the *Constitution*. The prohibitions were found to apply equally to intrastate, interstate, and overseas trade, and the purpose of the legislation was to protect public health, not to impede trade. Furthermore, the Court determined that the State had the legislative power to enact such laws, as they did not trespass upon the exclusive legislative powers of the Commonwealth Parliament.

The applications for declarations and injunctions were dismissed.