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2.3 [s92] Freedom of Interstate T&S.doc

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Queensland University of Technology

Freedom of Interstate Trade & Commerce—s92 On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. rd • The imposition of duties was on 3 October 1901 → section in force • Applies to potentially invalidate both Cth & State laws: Cole v Whitfield (although more likely State laws) SUMMARY 1. Discriminatory burden on interstate trade for the purpose of protecting intrastate trade • Cole v Whitfield • Burden can be found in legal form of legislation or practical effect: Cole • Trade and commerce has same meaning as under s51(i): James v Cth 2. Does the state/Cth have a defence? • Cannot “equalise” the playing-field to remove disadvantage caused by geography or other state laws: Bath v Alston Holdings • If small burden, may be valid as a “reasonable regulation” provided the burden is only incidental and not disproportionate to a legitimate end: Castlemaine Tooheys v SA Context & Purpose • cannot actually mean “absolutely” because otherwise there is no scope of s51(i) • to create a free trade area o to stop States from introducing state protectionism by indirect means Cole v Whitfield Approach • Purpose of s 92 : o to create a free trade area throughout the Cth o to stop Cth and States preventing the free movement of people, goods and communication across State boundaries Prevents— • Discriminatory burden of a “protectionist kind”: Cole v Whitfield (1988) (Tas crayfish regulations setting minimum size for sale of crayfish—smaller than in SA → some imported SA crayfish illegal  (unanimous & overruling precedent) legislation treats all crayfish equally, irrespective of origin → valid) o Invalid if it discriminates in legal form or in practical effect: Cole v Whitfield (1988) (legal form—all crayfish treated equally, irrespective of origin | practical effect—did not disadvantage importers → valid) o Not discriminatory if it applies to products from all states merely because it is impractical only to apply to that one State: Cole v Whitfield (impossible to have inspections only of local fish—SA crayfish look the same as Tas crayfish) • Includes where the tax is placed on imported goods to ‘level the playing field’ rather than favour local traders: Bath v Alston Holdings (Qld no tax on cigarettes—exporting cheaply to Vic—Vic tax imposed to level playing field  invalid ← practical effect = reduce capacity of Qld producers to compete in Vic) invalid for both— o Geographical advantage—eg Qld pineapple growers over Vic pineapple growers—Qld grows more cheaply—Vic puts import tax on to level the field o Tax advantage
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