Betfair Pty Ltd v Western Australia and the new jurisprudence of section 92 Michael Coper* Except for an immediate small flurry of cases, s 92 of the Australian Constitution went to sleep for 20 years after the High Court’s ground-breaking decision in Cole v Whitfield (1988) 165 CLR 360. Then in 2008, this pivotal guarantee of free trade among the States in our 19th-century foundational document came into collision with new, 21st-century, electronic ways of doing business, to which State geographical boundaries were largely irrelevant – except that it was the States that sought to regulate this business. In Betfair Pty Ltd v Western Australia (2008) 234 CLR 418, involving State regulation of internet gambling, the High Court reminded us of the gospel according to Cole v Whitfield: the States cannot regulate in a way that discriminates against interstate trade so as to confer protectionist benefits on their own intrastate trade. In the age, however, of the new economy, and of national competition law, some commentators have asked whether the national “common market” is adequately fostered by confining s 92 to the prevention of State protectionism. Two further internet gambling cases in 2012 appear to squash any suggestion in the 2008 case that the High Court might stray from the true path of Cole v Whitfield and expand the ambit of s 92 beyond State protectionism – although a possible issue raised by laws that lessen competition without involving State protectionism was left to another day. In the author’s view, s 92 is appropriately confined to the prevention of State protectionism, with broader protection of the common market best left to other mechanisms. INTRODUCTION In the impossibly busy life of a modern law school Dean, one must segment one’s life, deal with one issue (or crisis) at a time, and not succumb to paralysis by thinking too much about the tasks we can put on hold by storing them in that welcome refuge called “the future”. I have to admit that I tried my best to store away the task of writing this conference paper. But the best laid plans can go awry. Every time I sat down over the summer in front of the television to watch the cricket, the word “Betfair” would flash up on the screen, as if it were a subliminal message from Gilbert + Tobin Centre Director, Andrew Lynch, to get on with it. Every time I drove to work, my regular route would take me past a building site, where a hoarding prominently displayed a sign that said “Looking after YOU, at Section 92”!1 It rather reminded me of the time, many years ago, that I needed a break from writing my book Encounters with the Australian Constitution,2 and took my children to Sydney’s Taronga Park Zoo – only to be confronted just inside the gate by a pile of building materials labelled in large letters “Rocla Concrete Pipes”.3 I guess we all see the world through our particular lens, and for many years, thinking about constitutional law, and especially about s 92, did dominate my world view. I can neither confirm nor deny that, years ago, and long before Cole v Whitfield (1988) 165 CLR 360, I used to wear a s 92 * Professor of Law, ANU College of Law, Australian National University; Dean and Robert Garran Professor of Law 1998-2012. This paper was originally given at the University of New South Wales Gilbert + Tobin Centre of Public Law 2009 Constitutional Law Conference, without references or footnotes (or, as I sometimes say, footnote loose and fancy free). It is preserved, as given, in its original 2009 form, but is now completed and updated with the addition in 2013 of footnotes, a brief postscript to take account of intervening developments, and is styled for publication. 1 See the photographic evidence included at the end of this article (App 1). 2 Coper M, Encounters with the Australian Constitution (de luxe ed 1987; pop ed 1988, CCH Ltd 1987). 3 See Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468. 204 (2014) 88 ALJ 204 Betfair Pty Ltd v Western Australia and the new jurisprudence of section 92 T-shirt – a T-shirt that said, on the front, “section 92”, and, on the back, “absolutely free”. Neither can I confirm or deny that, in some kind of enigmatic silent statement, I used to wear this T-shirt under my more conventional attire when, in the 1970s, I sat in on the argument in s 92 cases during the Sydney sittings in the High Court’s old Darlinghurst courtroom. Denial, however, has been more difficult since I was outed in a book review by Sir Anthony Mason of my 1983 book on s 92.4 The T-shirt, if it ever existed, is now in tatters, rather like, and I suppose emblematic of, the old law on s 92, as it was, or so far as it could be ascertained,5 before Cole v Whitfield. Yet reading the decision in Betfair Pty Ltd v Western Australia (2008) 234 CLR 4186 has made me wonder whether any of the remnants of the T-shirt are worth preserving and recycling into some new garment, and that is one of the aspects of Betfair that I want to explore with you. I take the reference to the “new jurisprudence of section 92” in the title I was given for this talk to refer to the law since Cole v Whitfield, not to any revolution effected by Betfair, so one question for us is whether Betfair affirms and embeds that law, or alternatively foreshadows some further development or even change of direction. The latter, by the way, would be the more consistent with s 92’s turbulent and colourful past. SECTION 92’S COLOURFUL PAST Before I focus on Betfair, may I just say a very brief word about that colourful past? As you all know, s 92 provides that “trade, commerce and intercourse among the states … shall be absolutely free”. The challenging task of converting what was acknowledged on all sides to be a useful political slogan – a slogan that was pivotal to securing the federation of the colonies – into a set of workable legal principles, has been so wonderfully productive of anguished cries of exasperation that I was seriously tempted to fill my 20 minutes today entirely with a reading of my favourite anthology of the poetry of s 92. However, you can find that anthology scattered throughout my book on s 92,7 and reproduced as well in a second book on s 92 (can you believe it, two whole books on one section of the Constitution?), the very recent book of Dr Gonzalo Villalta Puig,8 to which I refer a little later. So just let me indulge myself, and perhaps amuse you, with just one quote, which even those of you who are familiar with it will not have heard for some time. This is Sir George Rich, a colourful character who, after 37 years on the Bench, retired in 1950 at the age of 87 to get married and start a new life.9 He did not write a great deal in his 37 years on the High Court, and we know now – somewhat shockingly – that much of what he purported to write was in fact penned for him by Sir Owen Dixon,10 but when he did write, he managed to do it with style and flair. This is what he said about s 92 in James v Cowan (1930) 43 CLR 386 at 422-423: The rhetorical affirmation of sec 92 that trade, commerce and intercourse between the States shall be absolutely free has a terseness and elevation of style which doubtless befits the expression of a sentiment so inspiring. But inspiring sentiments are often vague and grandiloquence is sometimes obscure. If this declaration of liberty had not stopped short at the high-sounding words “absolutely free,” the pith and force of its diction might have been sadly diminished. But even if it was impossible to define precisely what it was from which inter-State trade was to be free, either because a 4 Mason, “Book Review” (1983) 6 UNSWLJ 234, reviewing Coper M, Freedom of Interstate Trade under the Australian Constitution (Butterworths, 1983). 5 See especially Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 616 (Deane J). 6 Two subsequent cases, Betfair Pty Ltd v Racing New South Wales (2012) 86 ALJR 418 and Sportsbet Pty Ltd v New South Wales (2012) 86 ALJR 446, are noted in the postscript. 7 Coper, n 4. Each chapter is preceded by a selection of luscious (though mostly anguished) quotes, totalling around 50 in all. 8 Villalta Puig G, The High Court of Australia and Section 92 of the Australian Constitution: A Critique of the Cole v Whitfield Test (Lawbook Co, 2008). 9 Sheller S, “Rich, George Edward” in Blackshield T, Coper M and Williams G (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) (Oxford Companion to the High Court) p 605. 10 Ayres P, “Dixon Diaries” in Oxford Companion to the High Court, n 9, p 222. Dixon also wrote for McTiernan J: see Kirby M, “McTiernan, Edward Aloysius” in Oxford Companion to the High Court, n 9, p 466; Coper M, “We Are What We Write”, ANU College of Law Postgraduate Research Conference, Canberra, June 2006; http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1645603; http://www.austlii.edu.au/au/journals/ALRS/2006/3.html.