| Cole v Whitfield | |
|---|---|
 | |
| Court | High Court of Australia |
| Decided | 2 May 1988 |
| Citations | [1988] HCA 18, (1988) 165 CLR 360 |
| Case history | |
| Prior action | Court of Petty Sessions (Tas) September 1986 |
| Court membership | |
| Judges sitting | Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ |
| 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, 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,[1] is a decision of the High Court of Australia. At issue was the interpretation of section 92 of the Australian Constitution, a provision which relevantly states:
... trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
The court decided that s.92 prohibits burdens upon interstate trade, commerce, and intercourse of a 'protectionist kind'. The previously applied Individual Right interpretation of the section was abandoned in a unanimous joint judgement. Prior to Cole v Whitfield, s.92 was the most litigated section in the Constitution, bringing over 140 cases before the courts.[2] This was partially the consequence of inconsistent and confusing jurisprudence under the previous interpretive approach, as was acknowledged by the joint judgement.[3] The case largely settled s.92 jurisprudence, with the section only being infrequently the subject of litigation since.[4]
- ^ Cole v Whitfield [1988] HCA 18, (1988) 165 CLR 360 (2 May 1988), High Court (Australia).
- ^ Cullen, Richard, Section 92: Quo Vadis (September 12, 2012). University of Western Australia Law Review, Vol. 19, pp. 20, 1989, Available at SSRN: SSRN 2145209
- ^ "Cole v Whitfield [1988] HCA 18 - BarNet Jade". jade.io. Retrieved 15 June 2022.
- ^ Coper, Michael, Betfair Pty Ltd v Western Australia and the New Jurisprudence of Section 92 (October 16, 2013). Invited paper originally given at the 2009 UNSW Constitutional Law Conference., ANU College of Law Research Paper No. 13-17, Available at SSRN: SSRN 2340894