Castlemaine Tooheys Limited & Ors v The State of South Australia

Castlemaine Tooheys Limited and others brought proceedings against the State of South Australia in the High Court of Australia. The dispute concerned the validity of certain provisions of the *Beverage Container Act 1975* (SA) and associated delegated legislation. The plaintiffs contended that these provisions contravened section 92 of the Australian Constitution.

The central legal issue before the High Court was whether the impugned provisions of the *Beverage Container Act 1975* (SA), and the regulations made under it, were invalid by reason of contravening section 92 of the Constitution. Specifically, the plaintiffs argued that while the law might not be discriminatory or protectionist on its face, its practical effect was to discriminate against interstate trade and commerce and thereby protect intrastate trade and commerce.

The Court was required to consider the principles established in *Cole v Whitfield* (1988) 62 ALJR 303, which addressed how to resolve cases where a law's effect, rather than its explicit terms, rendered it discriminatory and protectionist. The Court noted that for a State law, the initial consideration is the nature of the law itself. If a law applies equally to both interstate and intrastate trade and commerce, it is less likely to be deemed protectionist than if discrimination is apparent on its face. However, the Court acknowledged that a law could still contravene section 92 if its effect, even if not discriminatory on its face, was to impose a burden on interstate trade.