Rothmans of Pall Mall (Australia) Ltd v WA

Rothmans of Pall Mall (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 argued that these provisions, which imposed restrictions on tobacco advertising and promotion, were invalid to the extent that they conflicted with the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the *Tobacco Control Act 1990* (WA) and its associated regulations, by prohibiting or restricting certain forms of tobacco advertising and promotion, were inconsistent with the provisions of the *Trade Practices Act 1974* (Cth), particularly those relating to the prohibition of misleading or deceptive conduct and the regulation of consumer protection. The applicants contended that the State legislation, by imposing these restrictions, encroached upon the Commonwealth's legislative power in relation to trade and commerce.

The High Court considered the operation of section 109 of the *Constitution*, which provides that where a State law is inconsistent with a law of the Commonwealth, the Commonwealth law shall prevail, and the State law shall, to the extent of the inconsistency, be invalid. Their Honours examined the scope and purpose of the relevant provisions of both the Commonwealth and State legislation. They concluded that the restrictions imposed by the Western Australian Act on tobacco advertising were not inconsistent with the *Trade Practices Act 1974* (Cth) in a manner that would attract the operation of section 109. The Court found that the State legislation did not prevent conduct that the Commonwealth legislation required or permitted, nor did it compel conduct that the Commonwealth legislation prohibited. The State's regulatory scheme was found to operate in a different sphere and did not frustrate the purpose of the Commonwealth legislation.

The High Court dismissed the applicants' application for declarations and injunctions.