ABSTRACT
A number of preliminary points should be made: • the section is grammatically inelegant: it is not apparent on a first
reading that the first part of the section, ending with the word ‘customs’, is an adverbial phrase followed by a definite pause – it would have been better had the section read: Trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall, on the imposition of uniform duties of customs, be absolutely free;
• s 92 binds both the Commonwealth and the States;
You should be familiar with the following areas:
• the theory underlying the dominant ‘free trade’ approach to the interpretation of s 92
• the test for determining whether a law imposes a ‘discriminatory burden of a protectionist kind’
• the way in which a proportionality test is used to determine the circumstances in which laws which burden inter-State trade and commerce for a non-protectionist purpose will be valid
• the scope of the prohibition against interference with interState intercourse
• s 92 has provided the High Court with one of its most difficult interpretative challenges. Throughout most of the last century, the court was divided between the ‘laissez faire’ and the ‘free trade’ approaches: ❍ under the laissez faire approach, s 92 was interpreted as
prohibiting any interference with inter-State trade, including, for example, the giving of a national monopoly to the Australian Wheat Board, even though the scheme governed inter-State and intra-State trade equally. This approach is now redundant and is of historical interest only;
❍ under the free trade approach, s 92 was seen as prohibiting only such interferences as discriminated against inter-State trade and intercourse, and permitting restrictions on inter-State trade which were merely incidental to a non-discriminatory scheme. It is this approach which has now become authoritative and which we will, therefore, focus on;
• it has generally been agreed by the court (and this applied to adherents of both the laissez faire and free trade approaches) that the word ‘absolutely’ in s 92 could not be interpreted literally. The framers of the Constitution were held not to have intended to permit anarchy in the area of inter-State trade and intercourse (indeed, s 51(i) specifically empowers Commonwealth legislation in the area). Thus, irrespective of which theory (laissez faire or free trade) s 92 was based upon, the courts have read into s 92 a permission to impose some restriction on inter-State trade and intercourse.
