Lecture Notes: Section 92 of the Australian Constitution - Coal and Whitfield Case

Introduction

• Presenter: Renato Costa
• Topic: Section 92 of the Australian Constitution
• Focus: Coal and Whitfield Case (1988)

Background

• Previous video covered the elements of Section 92 and the initial interpretive approach by the High Court of Australia.
• Initial interpretation: Section 92 as an individual right.
• Change in approach with the Coal and Whitfield decision in 1988.

The Case: Coal and Whitfield (1988)

Facts

• Fisheries Act 1959 (Tasmania): Empowered regulation of crayfish possession in Tasmania.
• Regulation 31(1)(d): Required crayfish to meet a minimum size:
  • Female crayfish: over 105 cm.
  • Male crayfish: over 110 cm.
• Whitfield: Crayfish trader charged with possessing undersized crayfish per Tasmanian law, though compliant with South Australian regulations.
• Challenge: Whitfield argued this law violated the freedom protected by Section 92.

Question

• Did the Tasmanian law impose a burden contrary to Section 92's protection of interstate trade and commerce?
• Was Regulation 31(1)(d) impermissibly discriminatory?

High Court's Decision

• Outcome: Law was valid and not discriminatory against interstate trade.
• Reasoning:
  • Burden was not discriminatory or protectionist.
  • Aimed to create a free trade area across the Commonwealth.
  • Section 92 ensures freedom from discriminatory protectionist burdens.

Interpretation

• Free Trade Theory: Focuses on preventing discriminatory burdens that protect local businesses over interstate trade.
• Discriminatory Burden of a Protectionist Kind:
  • Burdens that discriminate against one state to protect another.
  • Validity of law depends on non-discrimination in trade burdens.

Free Trade and Intercourse Limbs

• Separation of limbs in Section 92:
  • Trade and commerce limb vs. intercourse limb.
  • Different interpretations, not overlapping.

Implications

• Impact on state border closures, e.g., during pandemics.

Conclusion

• Upcoming video: Section 92's intercourse limb and border closures during pandemics.

Call to Action

• Like, subscribe, and hit the bell icon for updates.
• Next video will delve into state border issues during pandemics.

---

Note: This summary provides a high-level overview of the Coal and Whitfield case and its implications for Section 92 of the Australian Constitution related to interstate trade and commerce.