Cole v Whitfield

Facts

Whitfield was prosecuted under the Tasmanian Fisheries Act 1959 (Tas) for possessing undersized crayfish caught in South Australian waters, where they were of legal size. The relevant Tasmanian regulations imposed a minimum size requirement that differed from the South Australian standard, effectively disadvantaging interstate trade in crayfish. Cole, as the prosecuting officer, sought to uphold the conviction.

Issues

1. Whether s 92 of the Constitution prohibits only discriminatory or protectionist burdens on interstate trade, or whether it guarantees an absolute individual right to free trade. 2. Whether the Tasmanian minimum-size crayfish regulations infringed s 92 as a discriminatory burden of a protectionist kind on interstate trade and commerce.

Holding

The High Court unanimously held that s 92 renders interstate trade and commerce free from laws that impose discriminatory burdens of a protectionist kind, and that the Tasmanian regulations were invalid on that ground. The conviction was quashed.

Ratio decidendi

Section 92 of the Constitution is infringed when a law imposes a burden on interstate trade or commerce that is discriminatory in a protectionist sense — that is, a law that, by discriminating against interstate trade, confers a competitive advantage on intrastate trade. A law that burdens interstate trade equally with intrastate trade does not offend s 92.

Obiter dicta

The Court observed that not every regulatory burden touching interstate trade violates s 92; a genuine non-protectionist regulation serving a legitimate quarantine, health or safety purpose may be valid even if it incidentally affects interstate trade, provided it does not discriminate in a protectionist manner.

Significance

Cole v Whitfield fundamentally reconstituted the interpretation of s 92, abandoning the individual-rights approach of the Bank Nationalisation Case and establishing the current 'discriminatory burden of a protectionist kind' test that continues to govern constitutional challenges to legislation affecting interstate trade and commerce in Australia.

Key authorities

• Bank of New South Wales v Commonwealth (Bank Nationalisation Case) Bank of New South Wales v Commonwealth (1948) 76 CLR 1overruled
• Commonwealth v Bank of New South Wales Commonwealth v Bank of New South Wales [1950] AC 235overruled
• Hughes and Vale Pty Ltd v New South Wales [No 1] Hughes and Vale Pty Ltd v New South Wales [No 1] (1954) 93 CLR 1overruled
• Hartley v Walsh Hartley v Walsh (1937) 57 CLR 372considered
• Fox v Robbins Fox v Robbins (1909) 8 CLR 115considered