Today's High Court decision in Betfair & Anor -v-
Western Australia is a watershed in the regulation of betting
exchanges and other wagering and sportsbetting operators as
well as other Internet businesses in Australia.
In essence, it means:
any State that wishes to go it alone in imposing
restrictions on the conduct of business activities over the
Internet permitted by another State (including gambling
activity conducted under a licence) faces the risk of a
that constitutional challenge will have reasonable
grounds of success if the:
restrictions are discriminatory in their application
between certain categories of business, particularly if
there is involved the protection of businesses in the
relevant State; and
the restriction is not reasonably appropriate to the
issue being addressed; and
cross border restrictions which have been in place in
most states and territories that target interstate betting
operators (and protect local betting operators, including the
local TAB) may not be enforceable.
As a result:
advertising restrictions on those interstate operators
may no longer be valid; and
the legislative regime introduced in Victoria, New South
Wales and Western Australia which prohibits the publication
of race fields (and, in Victoria, sporting fixtures) without
relevant approvals may not be enforceable.
This may affect the value of existing totalisator/betting
licences and the ability of racing bodies to generate product
These proceedings involved a challenge by Betfair against
prohibitions introduced by Western Australia directed
specifically at betting exchange operators. There were two
principal prohibitions being challenged:
a prohibition on persons making bets through the use of a
betting exchange (the "betting exchange
a prohibition on the publication of Western Australian
race fields without the relevant approval (the
"race fields prohibition").
In each case, Betfair's application was accepted and the
High Court has ordered that each of these prohibitions is
invalid insofar as it applies to Betfair.
The success of Betfair's challenge is a material step in
its objective to being able to conduct and promote its betting
exchange operations throughout Australia free of legal
restrictions. Since it commenced providing services to
Australians some years ago, it has faced substantial opposition
by a range of parties, including the racing industry,
competitors and governments. The Western Australian legislation
was of material concern as it was the first time, in Australia
and elsewhere, that a parliament had introduced legislation
that contained specific prohibitions on the operation and use
of a betting exchange.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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