They say every dog has its day. The greyhounds of NSW
are about to have theirs; challenging the NSW ban on greyhound
racing in the courts. But on what basis, and will it succeed?
Here's our two cents.
In a nutshell
Apart from closing down greyhound tracks, Baird's laws try
to completely stamp out the competitive greyhound industry in NSW.
That includes the breeding or keeping of greyhounds for racing,
even where the dogs are to be raced outside NSW.
The pooches say that this offends the constitutional freedom of
trade between states.
The right to 'absolutely free' interstate trade is one
of the few clear (albeit rather unsexy) constitutional protections
we have. It was included at Federation to open the trade borders
between the newly formed states, and overcome the problems caused
by intercolonial customs duties.
Will the challenge work?
The argument for the greyhound industry would be that the laws
will inhibit trade between NSW and greyhound loving states –
in the betting, racing and sale of greyhounds. Which it would.
But does that mean the ban is unconstitutional? Typical of the
law, 'absolutely free' doesn't mean unreservedly free
and without limitation. The object of this part of the constitution
was to prevent state protectionism of industry. So our High Court
has said you need to look at the effect of the law, and whether it
impermissibly discriminates against other states.
Here, we think there is a good argument that the laws do not
discriminate between NSW's interstate and intrastate trade.
They don't, in terms or effect, preference the NSW greyhound
industry to the detriment of other states.
Even if there was some level of discrimination, it is unlikely
to be 'impermissible', given the fairly close and
proportionate ties between the action taken and the laws'
To the question of whether laws prohibiting an industry shown to
systemically abuse helpless animals are invalid, we reckon the
Court will say "nuh". So, unless Baird panics and backs
down, come 1 July 2017 nobody in NSW will be goin' to the
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