Section 92 of the Constitution of Australia


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Section 92 of the Constitution of Australia,[1] as far as is still relevant today is:

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

This provision has been the cornerstone of significant Australian constitutional jurisprudence, which has also been quite complex. As the High Court of Australia observed in Cole v Whitfield:

20. The creation of a limitation where none was expressed and where no words of limitation were acceptable was a task which, having regard to the diverse and changing nature of inter-State trade, commerce and intercourse, was likely to produce a variety of propositions. And so it has. Sir Robert Garran contemplated that a student of the first fifty years of case law on s.92 might understandably "close( ) his notebook, sell( )his law books, and resolve( ) to take up some easy study, like nuclear physics or higher mathematics."[2] ... Some thirty years on, the student who is confronted with the heightened confusion arising from the additional case law ending with Miller v. TCN Channel Nine[3] would be even more encouraged to despair of identifying the effect of the constitutional guarantee.[4]

  1. ^ Constitution (Cth) s 92 Trade within the Commonwealth to be free.
  2. ^ La Nauze, J.A. (1969). "A Little Bit of Lawyers' Language: The History of 'Absolutely Free' 1890–1900". In Martin, A.W. (ed.). Essays in Australian Federation. Melbourne University Press. p. 58., quoting Garran, R. (1958). Prosper the Commonwealth. Sydney: Angus & Robertson. p. 415.
  3. ^ Miller v TCN Channel Nine Pty Ltd [1986] HCA 60, (1986) 161 CLR 556 (21 October 1986), High Court (Australia).
  4. ^ Cole v Whitfield ("Tasmanian Lobster case") [1988] HCA 18, (1988) 165 CLR 360 (2 May 1988), High Court (Australia).