A constitutional clause protecting free interstate trade has become the legal weapon of choice for KenoGo as it fights to keep Australia’s online keno market open.
The company, which operates as the Australian arm of Gibraltar-based Lottoland, secured an injunction after filing proceedings in the New South Wales Supreme Court’s Equity Division against the federal government.
Court records show the case appeared on listings on 22 October, with the company led by chief executive Luke Brill seeking a declaration that Section 8D(2)(b) of the Interactive Gambling Act 2001 is constitutionally invalid.
That provision specifically prohibits keno lottery games from being offered online unless they are connected to a physical land-based venue, a restriction KenoGo argues amounts to unconstitutional protectionism.
The constitutional argument centres on Section 92, which enshrines the right to free trade between Australian states, and which KenoGo believes the land-based carve-out directly violates.
The strategy is not without precedent: Betfair successfully used the same constitutional argument in 2008 to overturn Western Australia’s ban on betting exchanges, establishing a legal pathway that KenoGo is now attempting to follow.
Notably, Australia’s own government review of online keno, published in February, had already flagged concerns among state regulators about whether the planned restrictions would survive a Section 92 challenge.
That same review stopped short of recommending an outright ban on online keno, instead contemplating measures such as advertising restrictions, a credit card ban, and mandatory inclusion in self-exclusion schemes.
KenoGo had already voluntarily connected to Australia’s BetStop self-exclusion register before the government review was completed, a move that positioned the company as a cooperative operator ahead of any regulatory decisions.
Lottoland’s pivot into keno in Australia was itself born of necessity, having been forced to abandon its core lottery betting product after Australia banned it in 2019, making the current legal battle an existential one for the business.
The online keno ban forms part of a sweeping gambling reform programme triggered by the landmark parliamentary report “You win some, you lose more,” which was published in June 2023 and set the agenda for tougher restrictions across multiple product categories.
Two other operators currently active in the Australian online keno space, The Lottery Corporation’s KenoOnline brand and Annexio Australia’s LottoGo platform, also stand to be affected by the outcome of the legal challenge.
With proceedings ongoing, Lottoland has opted to stay silent publicly, with a company spokesperson stating: “As this matter is currently the subject of ongoing legal proceedings, we have taken the position not to make any public comments at this stage.”
