Cole v Whitfield
| Cole v Whitfield | |
|---|---|
 |
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| Court | High Court of Australia |
| Decided | 2 May 1988 |
| Citation(s) | [1988] HCA 18, (1988) 165 CLR 360 |
| Case history | |
| Prior action(s) | Court of Petty Sessions (Tas) September 1986 |
| 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) | |
| Court membership | |
| Judge(s) sitting | Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ |
Cole v Whitfield, was a landmark High Court of Australia decision where the Court overruled two long settled approaches to the interpretation of the Constitution, that no regard could be had to the debates of Constitutional Conventions in the interpretation of the Constitution, and that the words "absolutely free" in Section 92 of the Constitution of Australia, protected a personal individual right of freedom in interstate trade. It was instead replaced with the economic notion of "free trade" in that interstate trade was not to be subject to discriminatory burdens of a protectionist kind. Despite being a unanimous judgment, the decision remains controversial.
The first five judges appointed to the High Court had all been leading participants in the Constitutional Conventions and all are properly seen as among the framers of the Constitution, The Court described the Constitution as "framed in Australia by Australians, and for the use of the Australian people", thus when the Court spoke of what was framers of the Constitution knew, intended or expected, their Honours are referring to their personal experience in that process, and not to the intention or knowledge of the Imperial Parliament in passing the Commonwealth of Australia Constitution Act 1900. Despite the references to intention however, it was the settled doctrine of the High Court that the records of the debates of the Constitutional Conventions were not available in the construction of the Constitution.
Whitfield was a crayfish trader charged with the unlawful possession of undersized crayfish. He resided in Tasmania, but the fish were purchased in South Australia and shipped to Tasmania. Under South Australian state's law, the fish that he purchased were of a lawful size, but under Tasmanian laws, they were undersize. The Fisheries Act 1959, empowered the Governor of Tasmania to make regulations relating to a number of subjects, one of which was the classification of undersized fish. The Sea Fisheries Regulations 1962 outlawed catching male crayfish less than 11 cm and female crayfish less than 10.5 cm in length. Cole, a Fisheries Inspector, charged Whitfield with a breach of the regulations. Whitfield pleaded not guilty and argued that section 92 protected the freedom of his interstate trade. The magistrate dismissed the complaint. Cole appealed to the Supreme Court of Tasmania however the case was removed to the High Court for determination of the constitutional question.
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