Betfair Pty Limited v Western Australia
Encyclopedia
Betfair Pty Limited v Western Australia (2008) 234 CLR
418; 244 ALR
32; [2008
The amended Act placed three restrictions on the plaintiffs. Firstly, under the newly inserted s 27B(1) it would be illegal for Betfair, the first plaintiff (the ‘out-of-state supply’ ), to operate a betting exchange in Western Australia. Secondly, under the newly inserted s 24(1)aa of the Act, it would be illegal for residents of Western Australia, such as Mr. Erceg, the second plaintiff (the ‘in-state demand’ ), to place a wager through a betting exchange. Furthermore, under the newly inserted ss 27C and 27D of the Act, it would be also illegal to publish the race fields of Western Australian races without ministerial approval.
These new provisions of the Betting Control Act 1954 (WA) effectively prevented Betfair from participating in the Western Australian ‘wagering market’, a market dominated by Western Australian bookmakers and totalisators. Betfair argued that these amendments, namely ss 24(1aa) and 27D were invalid under s 92 of Constitution, as the amendments imposed ‘discriminatory burdens of a protectionist kind’. Section 24(1aa) prevented Betfair from competing for telephone and online gamblers. Betfair was the only betting operator out of 115 which did not receive ministerial approval under Section 27D, and was therefore prevented from publishing the fields of Western Australian races.
The defendants submitted that these provisions, although discriminatory, were not used for the purpose of protectionism but rather for legitimate non-protectionist purposes. In addition to threatening an industry where Betfair made no contribution, the introduction of a betting exchange, where it was possible to ‘back to lose’, presented a risk that users may attempt to influence the outcome of a race and threaten the integrity of the racing industry.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
418; 244 ALR
Australian Law Reports
The Australian Law Reports are an unauthorised series of law reports which report cases from the High Court of Australia, Federal Court of Australia and the Supreme Courts of the states and territories exercising federal jurisdiction. After each authorised series they are the most often cited...
32; [2008
Background
The first plaintiff, Betfair Pty Ltd, operated a national betting exchange licensed in Tasmania and operated legally under Tasmanian law. Betfair’s exchange operated similarly to that of typical betting exchanges: Betfair would match the wagers of ‘registered players’ betting on opposing outcomes of sporting events either by telephone or through an online exchange, and then take a commission of the winner’s payout.The amended Act placed three restrictions on the plaintiffs. Firstly, under the newly inserted s 27B(1) it would be illegal for Betfair, the first plaintiff (the ‘out-of-state supply’ ), to operate a betting exchange in Western Australia. Secondly, under the newly inserted s 24(1)aa of the Act, it would be illegal for residents of Western Australia, such as Mr. Erceg, the second plaintiff (the ‘in-state demand’ ), to place a wager through a betting exchange. Furthermore, under the newly inserted ss 27C and 27D of the Act, it would be also illegal to publish the race fields of Western Australian races without ministerial approval.
These new provisions of the Betting Control Act 1954 (WA) effectively prevented Betfair from participating in the Western Australian ‘wagering market’, a market dominated by Western Australian bookmakers and totalisators. Betfair argued that these amendments, namely ss 24(1aa) and 27D were invalid under s 92 of Constitution, as the amendments imposed ‘discriminatory burdens of a protectionist kind’. Section 24(1aa) prevented Betfair from competing for telephone and online gamblers. Betfair was the only betting operator out of 115 which did not receive ministerial approval under Section 27D, and was therefore prevented from publishing the fields of Western Australian races.
The defendants submitted that these provisions, although discriminatory, were not used for the purpose of protectionism but rather for legitimate non-protectionist purposes. In addition to threatening an industry where Betfair made no contribution, the introduction of a betting exchange, where it was possible to ‘back to lose’, presented a risk that users may attempt to influence the outcome of a race and threaten the integrity of the racing industry.
Decision
The High Court held unanimously that the Western Australian government did indeed establish discriminatory burdens of a protectionist kind, and declared the amendments invalid under s 92 of the Australian Constitution.See also
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
- Oreb, 'Betting Across Borders: Betfair Pty Ltd v Western - Case Note' (2009) 31 Sydney Law Review 607.