Section 92, Factual Discrimination and the High Court
| Author | Andrew S Bell |
| Published date | 01 June 1991 |
| Date | 01 June 1991 |
| DOI | http://doi.org/10.1177/0067205X9102000204 |
| Subject Matter | Comments |
240 Federal Law Review
COMMENTS
SECfION
92, FACTUAL DISCRIMINATION
AND THE HIGH COURT
ANDREW S
BElL·
[VOLUME
2(1
The High Court's bicentennial contribution
of
Cole vWhitfielcP was warml
received by constitutional commentators,2 descending, in the colourfullanguagl
of
one, as some sort
of
judicial deus
ex
machina.3The Court's candil
acknowledgement that the divergent approaches to the meaning
of
s92
of
th(
Constitution which had emerged in over 140 decided cases had led to a"quit
unacceptable state
of
affairs"4 prompted it to wipe the slate clean and to seek t
tease out the section's elusive meaning from both its historical origins an
constitutional context.
In the course
of
its judgment, the Court observed that "the principal goals c
the movement towards the federation
of
the Australian colonies included
thl
elimination
of
colonial border duties and discriminatory burdens and preference
in intercolonial trade and the achievement
of
intercolonial free trade".s Section
9,
became the apotheosis
of
this objective, apowerful statement repudiating
th
discriminatory practices by which various colonies had sought to protect thei'
nascent economies. By examining both the historical forces which created
thl
impetus for Federation itself and tracing the history
of
s92 in the Conventio,
Debates
of
1890s,6 the High Court located the operation and true meaning c
s92 in its proscription
of
the imposition
of
discriminatory burdens
of
protectionist
kind.'In this context, one may recall the Privy Council"
observation in
Bank
of
NSW
vThe Commonwealth
('~the
Bank Nationalisatio
case") that the "problem to be solved will often be not so much legal a
political, social or economic".8 Protectionism is, par excellence, apractice whic
is born
of
political motivation towards
an
economic or social end.
Considerations
of
constitutional context also played asignificant role in th
identification
of
discriminatory protectionism as the evil which s92
W8
designed to proscribe. Section 102 speaks
of
"undue or unreasonable"
"preferenC'
or discrimination", the effect
of
which may
be
"unjust to any State".
Similarl~
s104, though not referred to in Cole vWhitfield,
~eals
exclusively wit
preferential railway rates, one
of
the most common examples
of
colonh
protectionism,9 proyiding that:
1
2
4
S
6
7
8
9
BA
LL.B (Syd)
(1988) 165 CLR 360.
Eg
MCoper. "The Role
of
the Courts in the Preservation
of
Federalism". (1989) 63
AU
46:
470: "The High Court finally got the meaning of 'absolutely free' absolutely right".
P H Lane. "The Present Test for Invalidity under s.92 of the Constitution". (1988) 62
AU
601
614.
Supra n
1.
385.
Ibid 392.
Ibid 385-392.
Ibid 394-395.
(1949) 79 CLR 497. 639.
"The enemies
of
free trade were border taxes. discrimination. especially in railway freigl
rates. and preference": supra n
1.
391.
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