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' objects.
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 dogs.