Cole v Whitfield

Cole v Whitfield
Court	High Court of Australia
Full case name	Cole v Whitfield
Date decided	2 May 1988
Citation(s)	(1988) 165 CLR 360, [1988] HCA 18
Judge(s) sitting	Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ
Case history
Prior action(s)	none
Subsequent action(s)	none
Case opinions
(7:0) Where a law creates a discriminatory and protectionist burden on interstate trade and commerce, and is not pursuant or incidental to a non-protectionist purpose, then it will be in breach of Section 92 of the Australian Constitution. (per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey & Gaudron JJ)

Cole v Whitfield (1988) 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.

Background

Whitfield was a crayfish trader charged with the unlawful possession of undersized crayfish. 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.

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 Commonwealth 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.

See also

• Section 92 of the Australian Constitution
• Australian constitutional law

References

• Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.

External links

• Full text of the decision
• Criticism of the decision - Peter Connolly - Samuel Griffith Society