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.
Background
Approach to the interpretation of the constitution
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 Parliamentin 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.
The facts
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. Whitfield and his company imported some crayfishes from South Australia for reselling, which were undersized under Tasmanian regulations. 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.
Decision
The Court decided that the clause "absolutely free" in Section 92 was not a guarantee of absolute freedom of restrictions. Such a notion, they argued, would be chaotic. The Court rejected the "individual rights" approach favoured in earlier cases such as Bank of New South Wales v Commonwealth, and endorsed the "free trade" approach. The Court broke with tradition and consulted the Constitutional Convention debate transcripts to establish the true purpose of Section 92. The Court concluded it was to create a free trade zone among the Australian states, and the words "absolutely free" referred to freedom in the economic sense. Thus, laws of a protectionist kind interfering with interstate trade and commerce would be invalid. The Court looked to the purpose of the Tasmanian laws and found that their objectives were of a conservational nature. As the laws applied to all crayfish, they were not of a protectionist nature and hence not in breach of Section 92.
