Grounding the High Court's Modern Section 92 Jurisprudence: The case for Improper Purpose as the Touchstone
| Author | Amelia Simpson |
| DOI | 10.22145/flr.33.3.3 |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| Subject Matter | Article |
GROUNDING THE HIGH COURT'S MODERN SECTION 92
JURISPRUDENCE: THE CASE FOR IMPROPER PURPOSE AS
THE TOUCHSTONE
Amelia Simpson
∗
INTRODUCTION
The 'free trade' provision in Australia's Constitution, section 92, remains partially
uncharted territory, both as to its practical operation and its doctrinal underpinnings.
Section 92 is presently understood as a non-discrimination norm. While interpretation
has cleaved the norm into two distinct strands, this article addresses only one of those,
that concerning protectionist discrimination against interstate trade or commerce.
Although there are many outstanding issues regarding this norm's operation in
particular settings — for instance its operation upon the Commonwealth and its
ramifications for export controls1 — I will not be exploring those frontiers here. Rather,
my interest is in the established core of the protectionist discrimination principle and
the soundness of its doctrinal underpinnings. I will focus in this article upon a crucial
missing piece in our contemporary picture of section 92's make up, specifically, the
relationship between legislative purpose and practical effect in the identification of
protectionist discrimination.2
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∗ Lecturer, Faculty of Law, ANU. For helpful comments and suggestions on earlier drafts the
author thanks Karl Alderson, Jamison Colburn, Michael Dorf, Kent Greenawalt, Graeme
Hill, Leighton McDonald, Sir Anthony Mason, Gerald Neuman, James Stellios, Leslie Zines
and the Federal Law Review's anonymous referees. This article forms part of the author's JSD
dissertation at Columbia University School of Law.
1 A survey of the section 92 scholarship since Cole v Whitfield reveals many questions
awaiting clarification by the Court. See, eg, Michael Coper, 'Section 92 of the Australian
Constitution since Cole v Whitfield' in H P Lee and George Winterton (eds), Australian
Constitutional Perspectives (1992) 129; Leslie Zines, The High Court and the Constitution (4th
ed, 1997) ch 8; Dennis Rose, 'Cole v Whitfield: 'Absolutely Free' Trade?' in H P Lee and
George Winterton (eds), Australian Constitutional Landmarks (2003); David Sonter, 'Intention
or Effect? Commonwealth and State Legislation after Cole v Whitfield' (1995) 69 Australian
Law Journal 332.
2 Needless to say, dealing with this question in isolation is a somewhat artificial
undertaking, as it is not easily disentangled from the Court's approach to other
constitutional limitations or from its views on purpose-based and effects-based tests and
criteria more generally. Readers should keep in mind that the issues raised and arguments
made in this article may have wider ramifications and, likewise, may be affected by trends
and shifts manifesting elsewhere in the High Court's jurisprudence.
446 Federal Law Review Volume 33
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The article comprises four sections. Section 1 revisits recent section 92 cases and
explains how these have significantly, though not completely, demystified section 92's
operation as regards interstate trade. Sections 2 and 3 examine two existing,
alternative, accounts concerning the precise composition of the High Court's
protectionist discrimination test, focusing particularly on the role attributed to
legislative purpose. The first account, dealt with in Section 2, is a descriptive account
asserting that improper legislative purpose is the primary touchstone by which
protectionist discrimination is identified, its presence being a necessary condition for
section 92's operation. I find that account inadequate for its lack of a firm grounding in
the case law. Section 3 turns to a second existing account, framed by reference to a
principle of 'proportionality'. This account views improper purpose as a sufficient
rather than a necessary condition for section 92's operation. It infers a balancing
approach, grounded ultimately in a conception of the section 92 norm as defeasible,
and defends this understanding as appropriate. Ultimately, I find this explanation
unconvincing as its central assumptions about the norm's structure do not find clear
confirmation in the cases. In Section 4 I offer my own prescriptive view. I there explore
several considerations that should guide the Court in selecting, and cementing, the
doctrinal foundations of its modern section 92 jurisprudence. I suggest that these
considerations — section 92's federal rationale, wider concerns about defeasibility in
federal structural provisions, and the limits of the High Court's capacities and
competencies — favour a conception of protectionist discrimination that places
legislative purpose at its centre.
To some minds the relative significance of, and relationship between, purpose and
effect in section 92 jurisprudence may seem insignificant, in that clarification would
seem to make little practical difference to the norm's application. I concede readily that
the alternative conceptions of section 92 canvassed in this article would not often
generate different results when applied to concrete cases. Rather, their main
significance lies in their capacity to serve as secure anchors for the modern section 92
jurisprudence — at the level, in other words, of doctrinal rationalisation. Given section
92's history, fraught with disagreement and instability, the legitimacy and longevity of
the present approach will depend upon its having thoroughly worked out an
acceptable philosophical foundation. For so long as it remains, on this score, an
unfinished project, the modern section 92 jurisprudence is particularly vulnerable to
the corrosive forces of doubt and indecision.
Aside from bringing this greater resilience to the doctrine, the clarification that I am
proposing would have other pay-offs. From the point of view of litigants, the existing
unclear relationship between legislative purpose and practical effect, in terms of
triggering section 92's operation, leaves uncertainty as to the kind of case they must
make. With a clearer idea as to how, precisely, the Court uses the evidence put before it
litigants could present their cases more effectively and efficiently. Further, litigants and
judges alike would, with the clarification proposed, be in a better position to assess the
comparability and relevance of decisions and doctrines drawn from other
constitutional systems.3
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3 In particular, the High Court's equivocation regarding the relevance of United States
'dormant commerce clause' jurisprudence may be traced, at least in part, to the ambiguity
still lurking within its approach to section 92. The viability of comparisons with the free
2005 Grounding High Court's s 92 Jurisprudence 447
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1 SECTION 92 AS A NON-DISCRIMINATION NORM
Section 92, the guarantee of free interstate trade, provides in operative part:
trade, commerce, and intercourse among the States, whether by means of internal
carriage or ocean navigation, shall be absolutely free.
As already mentioned, this article considers the provision only as it applies to trade
and commerce. The High Court has indicated that the principles governing
'intercourse' are relevantly distinct.4
After many decades of disagreement, the Court has in relatively recent times
cemented section 92's status as a non-discrimination norm. This Section explores the
contours of that norm as they emerge from the two most commonly discussed recent
cases, Cole v Whitfield5 and Castlemaine Tooheys Ltd v South Australia.6
When identifying and analysing the features of a non-discrimination norm, it can be
helpful to think in terms of the norm's outer limits and the principles that sustain those
limits. Every non-discrimination norm contains some limitations upon its reach. No
legal system could hope to, or would want to, maintain a principle of non-
discrimination that was entirely unconfined. History and moral intuition alike confirm
that eliminating differences and their attendant inequalities altogether is an impossible
task.7 Further, as most people involved or interested in law-making would now agree,
differentiation which leaves some people better off may produce desirable
consequences in some settings. The challenge for lawmakers is to construct non-
discrimination norms that have sufficient bite while at the same time guarding against
unpalatable overreach. The legal principles that define, and guide the identification of,
discrimination in a particular setting furnish these all important outer limits.
In this ongoing process of developing and refi ning non-discrimination norms, most
lawmakers, including courts, have at some point conceded the inadequacy of legal
form as a touchstone with which to delimit a norm's reach. In Australia's constitutional
non-discrimination jurisprudence, the abandonment of tests focusing upon legal form
took considerably longer than in many other constitutional systems. Yet even as a late
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trade jurisprudence of the European Community and the World Trade Organization will
likewise remain unclear until section 92's doctrinal contours are clarified.
4 Cole v Whitfield (1988) 165 CLR 360, 388. Since Cole there has been some attention given to
the 'intercourse' limb of s 92, most recently in APLA Ltd v Legal Services Commissioner (NSW)
(2005) 219 ALR 403 ('APLA'). There, three members of the Court endorsed the idea that
intercourse is a separate limb of s 92, governed by different principles (Gleeson CJ and
Heydon J at 415 [38], Gummow J at 445 [162]). One doubted the utility of the distinction but
accepted its authority (Hayne J at 502 [402], 507 [426]). Another seemed to deny the
distinction altogether (Callinan J at 522-3 [462]-[464]). Justices McHugh and Kirby did not
need to address the s 92 issue.
5 (1988) 165 CLR 360.
6 (1990) 169 CLR 436 ('Castlemaine').
7 See, eg, Isaiah Berlin, 'Equality as an Ideal' in Frederick Olafson (ed), Justice and Social Policy
(1961) 129–30, 137, 141; Joseph Raz, The Morality of Freedom (1986) 234–35; Michael Walzer,
Spheres of Justice (1983) xii; Peter Singer, Practical Ethics (2nd ed, 1993) 25.
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