After studying in chronological sequence all that had been written on s 92, Sir Robert (Garran) said, ‘[t]he student closes his notebook, sells his law books, and resolves to take up some easy study, like nuclear physics or higher mathematics’. Writing in 1977, Professor Geoffrey Sawer described the subject of s 92 as one of ‘gothic horrors and theological complexities.’[i]

Since the recent Australian state border closures,[ii] questions have arisen about the constitutionality of impeding free movement between the States. In fact, at the beginning of the state border closures, Alexander Downer tweeted “I don’t think an Australian State can legally close its borders to other Australians under section 117 of the Constitution.

The answer to the constitutionality question seems to turn on the application of section 92 of the Australian Constitution, with section 117 of the Constitution (prohibiting discrimination between residents of States) having been generally dismissed by commentators as likely being irrelevant to the question. Section 92 of the Constitution states:

“trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free.” 

Ostensibly, that movement should be “absolutely free” means the answer is clear and this article is over. However, an exploration of previous cases shows that ‘absolutely free’ does not actually mean absolutely free.

Between 1903, when the High Court was first established, and 1987, when Cole v Whitfield[iii] was argued, “the High Court and the Privy Council had heard and determined 139 s 92 cases…”[iv] Whilst the judgment of Cole has not been without criticism, it is a legally accepted, highly respected decision of the High Court of Australia. In fact, following Cole, the High Court has determined just 10 cases.[v] This is suggestive that Cole has become a leading authority on the interpretation of section 92, providing clarity to its application and limitations.

In Cole, the High Court adopted a purposive approach to its statutory construction of section 92, examining the intentions of its writers. The court went through a painstakingly detailed history of the writing of the section.[vi] The court concluded that the section was intended to create a free trade zone within Australia and avoid protectionism such that the purpose of the section 92 was therefore economic in nature.

Specifically, in Cole, the High Court held that the type of laws which should be invalidated by virtue of section 92 are those which were ‘discriminatory’ and ‘protectionist’. By ‘protectionist’, it means that the State in question is protecting an industry from competition from within another State. This anti-protectionist test has arguably been subsequently applied differently in later cases.

For example, in Betfair Pty Ltd v Western Australia,[vii] the court applied a test of ‘proportionality’, which almost assumes a portion of necessity. In McCloy v New South Wales,[viii] the court applied a test of ‘necessity’, which involves asking whether there could be alternative laws which achieve the same purpose with less impact on the relevant freedom or interest in question.

Considering matters more practically, in Cunliffe v The Commonwealth,[ix] Chief Justice Mason stated that the freedom of intercourse which section 92 purportedly guarantees is not absolute. Accordingly, a law which in terms applies to movement across a border and imposes a burden or restriction on that movement is invalid. However, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject matter other than interstate intercourse would not be invalid if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end.

It would, as with most things, be a matter of weighing the competing public interests. To that end, in Nationwide News,[x] Justice Brennan stated that when the law is created to “protect the State or its residents from injury, a law which expressly prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid” and those dangers include, goods animals and people.

Although none of the cases following Cole have questioned its construction of section 92 as being limited to economic matters, the criticisms of Cole have been strong and vocal. Former Justice of the Supreme Court of Queensland, Justice Connolly, wrote an article questioning whether in its essence, Cole in fact repealed section 92. Justice Connolly vehemently disagreed with the judgment of Cole to the extent that he wrote, “[h]ad it been desired by a government of the Commonwealth, with or without the enthusiastic support of the governments of the States, to repeal the present s. 92 and replace it with a Cole v. Whitfield formulation, this could only have been done by a referendum which would have required to be carried by a majority of the electors in a majority of the States.”[xi]

Justice Connolly did not accept that Cole simply interpreted section 92 as it was intended at the time it was written and saw the extent of its overreach as repealing the section altogether. Associate Professor of Law at Macquarie University at the time, L.J.M. Cooray, agreed that it was simply judicial and parliamentary overreach.[xii] Nevertheless, Cole is good law and it is doubtful that the current Australian border closures could be successfully challenged.

[i] Encounters with Constitutional Interpretation and Legal Education (2018) James Stellios (ed), p 27. [ii] The states implemented a blanket ban on non-state resident entry. [iii] Cole v Whitfield (1988) 165 CLR 360. [iv] Encounters with Constitutional Interpretation and Legal Education (2018) James Stellios (ed), p 28. [v]  At the time of publication of Encounters with Constitutional Interpretation and Legal Education (2018) James Stellios (ed). [vi] Cole v Whitfield was the first decision where the High Court of Australia considered the Constitutional Convention debate transcripts. [vii] Betfair Pty Limited v Western Australia (2008) 234 CLR 418. [viii] McCloy v New South Wales (2015) 257 CLR 178. [ix] Cunliffe v The Commonwealth (1994) 182 CLR 272. [x] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. [xi] Justice Peter David Connolly C.O.E., Q.C. “Cole v. Whitfield – The Repeal of Section 92 of the Constitution?”[xii] L.J.M. Cooray, “The High Court, the Constitution, and Freedom of Interstate Trade” (1989) Policy 43-45.