Barley Marketing Board (NSW) v Norman
Encyclopedia
Barley Marketing Board (NSW) v Norman (1990) 171 CLR
182 is a High Court of Australia
case that deals with the question of whether State-run marketing boards are permissible under section 92 of the Australian Constitution
, which deals with the freedom of interstate trade and commerce.
would become the property of the Barley Marketing Board, and all contracts relating to the sale of barley would become void. Norman was a barley grower and he contracted to sell his barley to a buyer in Victoria
.
However, in this case, the Court was open to reconsider the issue, as the previous cases relied on the discredited "individual rights" theory of section 92. This theory, which guaranteed the right of the individual to engage in interstate trade and commerce, was replaced in Cole v Whitfield
by a test involving consideration of discrimination and protectionism.
Applying the test from Cole v Whitfield, the Court found that there was no discrimination. A person, from New South Wales or from outside the State, who wants to buy barley must purchase it from the marketing board, and thus there was no discrimination. A buyer in New South Wales has no competitive advantage to a buyer from Victoria, as they have equal access to the markets in both States.
The Court distinguished this case from other cases where the marketing scheme took in all the commodity grown within the State as well as the commodity entering the State. The Court also emphasised a passage from Cole v Whitfield, in that it cannot be said that there is discrimination where the commodities and services affected by the restriction are not the ones affected by discrimination.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
182 is a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case that deals with the question of whether State-run marketing boards are permissible under section 92 of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, which deals with the freedom of interstate trade and commerce.
Background
By a proclamation under the Marketing of Primary Products Act 1983 (NSW), all barley grown in New South WalesNew South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
would become the property of the Barley Marketing Board, and all contracts relating to the sale of barley would become void. Norman was a barley grower and he contracted to sell his barley to a buyer in Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
.
Decision
The judges, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, who wrote a joint judgment, acknowledged that in the past, marketing schemes often came into conflict with section 92, as they interfered with interstate trade and commerce. This included schemes that imposed quotas on sales, or schemes whereby all the commodity grown in the State became the property of the marketing board. A way around this problem was to exclude interstate trade, expressly or by reading down the legislation.However, in this case, the Court was open to reconsider the issue, as the previous cases relied on the discredited "individual rights" theory of section 92. This theory, which guaranteed the right of the individual to engage in interstate trade and commerce, was replaced in Cole v Whitfield
Cole v Whitfield
Cole v Whitfield 165 CLR 360; [1988] HCA 18 was a landmark High Court of Australia decision where the Court overruled the long-held notion that the words "absolutely free" in Section 92 of the Australian Constitution protected a personal individual right of freedom in interstate trade. It was...
by a test involving consideration of discrimination and protectionism.
Applying the test from Cole v Whitfield, the Court found that there was no discrimination. A person, from New South Wales or from outside the State, who wants to buy barley must purchase it from the marketing board, and thus there was no discrimination. A buyer in New South Wales has no competitive advantage to a buyer from Victoria, as they have equal access to the markets in both States.
The Court distinguished this case from other cases where the marketing scheme took in all the commodity grown within the State as well as the commodity entering the State. The Court also emphasised a passage from Cole v Whitfield, in that it cannot be said that there is discrimination where the commodities and services affected by the restriction are not the ones affected by discrimination.