Sportsbet Pty Ltd v State of New South Wales & Ors [2012] HCATrans 90

Sportsbet Pty Ltd (the applicant) sought special leave to appeal to the High Court of Australia against a decision of the Supreme Court of New South Wales. The dispute concerned the validity of certain provisions of the *Totalisator Act 1916* (NSW) and the *Betting and Racing Act 1998* (NSW), which imposed a betting tax on wagering operators. Sportsbet argued that these provisions were invalid to the extent that they applied to bets made by persons in New South Wales with a wagering operator licensed in another State or Territory, contending that such application was inconsistent with the implied freedom of interstate trade and commerce guaranteed by Chapter V of the *Australian Constitution*.

The primary legal issue before Gummow J was whether the New South Wales betting tax provisions, as applied to interstate bets, infringed the implied prohibition on laws that discriminate against or unduly burden interstate commerce. This required an examination of whether the legislation had the practical effect of discriminating against interstate wagering operators or placing an undue impediment on the free flow of interstate trade and commerce, particularly in the context of online betting.

Gummow J considered the principles established in cases concerning the implied freedom of interstate trade and commerce, particularly the test for determining whether a law unduly burdens or discriminates against interstate commerce. His Honour noted that the legislation imposed a tax on the turnover of wagering operators, and the question was whether this tax, in its operation, placed interstate operators at a disadvantage compared to intrastate operators or otherwise hindered interstate commerce. The application for special leave to appeal was ultimately dismissed.