hello everyone my name is renato costa this is aussie law and today we will talk about section 92 of the australian constitution but this time we'll be focusing on a particular case the case is called coal and whitfield from 1988. [Music] if you have not watched our previous video about section 92 of the australian constitution now is the right time to stop this one here watch that one first and then come back i'll be here i'll wait for you in our previous video we saw the elements of section 92 and we also talked about the first interpretive approach adopted by the high court of australia that approach considered section 92 of the australian constitution as an individual right but this all changed in 1988 with the high court decision in golden whitfield so let's take a look at this case and let's start with the facts there was this act called the fisheries x from 1959 from tasmania the act empowered the executive to regulate the possession of crayfish in that state and so the sea fisheries regulations regulated some aspects of the possession of crayfish in tasmania particularly regulation 31 1-d prevented the possession of crayfish under a certain minimum length all female crayfish should be over 105 centimeters and all male crayfish should be over 110 centimeters so whitfield was this crayfish trader who was charged with the unlawful possession of undersized crayfish in tasmania he had imported that crayfish from south australia the thing was that the size of the crayfish was in compliance with the south australian regulations so it did respect the minimum length according to the south australian regulation but it was not in compliance with the tasmanian regulation according to tasmanian law that crayfish was undersized so whitfield challenged the tasmanian law as contrary to the freedom protected and expressed in section 92 of the australian constitution the question that the high court of australia then had to answer was whether the tasmanian law imposed a burden that somehow was contrary to section 92 of the australian constitution and the freedom of interstate trade and commerce was regulation 311d impermissibly discriminatory the high court decided unanimously that the law was valid although the regulations did impose a burden the justice of the high court of australia found that that burden was not discriminatory against the interstate trading commerce this decision is fair digmatic because it seems to solve one problem that the individual rights approach could not solve how to conciliate section 51 1 of the australian constitution with section 92 of the australian constitution by valuing the history and the original meaning and intention of the provision the high court said that the purpose of the section is clear enough to create a free trade area throughout the commonwealth and to deny to commonwealth and states alike a power to prevent or obstruct the free movement of people goods and communications across straight state boundaries that is trade and commerce are free from certain legislative burdens that constitute what was called discriminatory burdens of a protectionist kind as the justices put it to construe section 92 as requiring that interstate trade and commerce be immune only from a discriminatory burden of a protectionist kind does not involve inconsistency with the words absolutely free it is simply to identify the kinds or classes of burdens restrictions controls and standards from which the section guarantees absolute freedom and further they affirmed the provision conferring legislative power section 51-1 and the provision restricting the exercise of legislative power section 92 sit more easily together if the letter is construed as being concerned with procruding particular types of burdens such as discriminatory burdens of a protectionist kind what the justices were saying was that the individual rights theory was unable to identify which kinds of burdens impermissibly breached section 92 in the absolute free expression in that provision in call under the free trade approach this historical interpretation of section 92 it was now possible to identify which kind of burden would be prohibited by section 92 and this was called the discriminatory burden of a protectionist kind now what does that mean this refers to a burden on interstate trade and commerce that directly or indirectly discriminates against one state to protect another there are restrictions that operate to protect the local businesses and industries from interstate competitors as the high court said a lower discriminate against interstate trade or commerce if the law on its fact subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result so the decision of the high quoting call was that the regulation was valid because it did not distinguish between the internal or the external trade of produce any crayfish in tasmania had to be of a minimum size and it didn't matter where it came from that is the regulation was valid because it lacked a discriminatory burden of a protectionist kind although the limitation on the size of crayfish that may be soda possessed in tasmania is unquestionably a burden on the interstate trade in commerce in crayfish caught in south australian waters and sold in tasmania the prohibition against the sale and possession of undecided crayfish apply alike to crayfish caught in tasmanian waters into those that are imported in that respect no discriminatory protectionist purpose appears on the face of the law this is why the new approach is called the free trade theory it seeks to bring back the idea of a free trade throughout australia by preventing states from imposing non-fiscal trade and commerce burdens that discriminated against another state with the decision in coal and the creation of this new approach the free trade theory it also came a separation of two limps in section 92. in call the high court of australia separated the trading call muslim from the intercourse lane you see if the content of the intercourse limp is the same as the free trade and commas then it looks redundant so for the justices the expressions did not overlap and the content of one could not interfere with the content of the other as the high court decided the content the notions of the expressions in trading commerce and intercourse they were distinct and neither the history of the clause nor the ordinary meaning of its words require that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse one of the repercussions then to the separation in terms of states closing its borders for example in the middle of a pandemic this is the topic of our next video hey i hope you enjoyed this one and if you did click the like button subscribe to our channel and hit the bell icon because my next video will talk about section 92 in the intercourse limp and we will discuss the closing of the borders during the pandemic i'll see you soon until then ciao