Cole v Whitfield
Encyclopedia
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 instead replaced with the economic notion of "free trade". The unanimous ruling remains controversial today.
. He resided in Tasmania
, but the fish were purchased in South Australia and shipped to Tasmania. Under South Australian state's law the fish he purchased were of a lawful size, however under the Tasmanian laws they were deemed undersize. Section 9 of the Fisheries Act 1959 (Tasmania) empowered the Governor of Tasmania to make regulations relating to a number of subjects, one of which was the classification of undersized fish. The Sea Fisheries Regulations 1962 were made pursuant to the Fisheries Act and regulation 31(1)(d) outlawed catching male crayfish less than 11cm and female crayfish less than 10.5cm in length.
Whitfield argued that the disparity in laws between states was an undue burden upon him, and was in breach of Section 92.
and endorsed the "free trade" approach. The Court broke with tradition and consulted the Constitutional Convention
debate transcripts to establish the true purpose of Section 92. The Court concluded it was to create a free-trade zone among the Australian states, and the words "absolutely free" referred to freedom in the economic sense. Thus, laws of a protectionist kind interfering with interstate trade and commerce would be invalid.
The Court looked to the purpose of the Tasmanian laws and found that their objectives were of a conservational nature. As the laws applied to all crayfish, they were not of a protectionist nature, and hence not in breach of Section 92.
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...
360; [1988] HCA 18 was a landmark 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...
decision where the Court overruled the long-held notion that the words "absolutely free" in 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...
protected a personal individual right of freedom in interstate trade. It was instead replaced with the economic notion of "free trade". The unanimous ruling remains controversial today.
Background
Whitfield was a crayfish trader charged with the unlawful possession of undersized crayfishCrayfish
Crayfish, crawfish, or crawdads – members of the superfamilies Astacoidea and Parastacoidea – are freshwater crustaceans resembling small lobsters, to which they are related...
. He resided in Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, but the fish were purchased in South Australia and shipped to Tasmania. Under South Australian state's law the fish he purchased were of a lawful size, however under the Tasmanian laws they were deemed undersize. Section 9 of the Fisheries Act 1959 (Tasmania) empowered the Governor of Tasmania to make regulations relating to a number of subjects, one of which was the classification of undersized fish. The Sea Fisheries Regulations 1962 were made pursuant to the Fisheries Act and regulation 31(1)(d) outlawed catching male crayfish less than 11cm and female crayfish less than 10.5cm in length.
Whitfield argued that the disparity in laws between states was an undue burden upon him, and was in breach of Section 92.
Decision
The Court decided that the clause "absolutely free" in Section 92 was not a guarantee of absolute freedom of restrictions. Such a notion, they argued, would be chaotic. The Court rejected the "individual rights" approach favoured in earlier cases such as Bank of New South Wales v The CommonwealthBank of New South Wales v Commonwealth
Bank of New South Wales v The Commonwealth 76 CLR 1, also known as the Bank Nationalisation Case, is a notable case of the High Court of Australia.-Background:...
and endorsed the "free trade" approach. The Court broke with tradition and consulted the Constitutional Convention
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
debate transcripts to establish the true purpose of Section 92. The Court concluded it was to create a free-trade zone among the Australian states, and the words "absolutely free" referred to freedom in the economic sense. Thus, laws of a protectionist kind interfering with interstate trade and commerce would be invalid.
The Court looked to the purpose of the Tasmanian laws and found that their objectives were of a conservational nature. As the laws applied to all crayfish, they were not of a protectionist nature, and hence not in breach of Section 92.