USQ Law Society Law Review
Elise Fryer
Winter 2022
AN EXPOSITION OF SECTION 92 OF THE AUSTRALIAN CONSTITUTION ANDS ITS APPLICATION DURING THE COVD-19 PANDEMIC ELISE FRYER1 The purpose of this article is to explore the interpretations of section 92 (“s 92”) of the Australian. It will also consider the impact that those interpretations have had and continue to have on trade and commerce, and interstate intercourse between the states and territories of the Commonwealth of Australia.2 This paper will briefly outline the history of the interpretation of s 92 of the constitution as well as examine and make recommendations for greater protection of the provisions within s 92. S 92 of the Constitution came into effect in 1901. Since taking effect, s 92 has been the focus of debate and vast interpretation, baffling legal scholars and marking it in history as the most contested provision of the Australian Constitution. S 92 sets out two guarantees: (i) the freedom of trade and commerce between the states and territories and, (ii) the freedom of interstate intercourse.3 To date, s 92 of the Constitution has been the catalyst to an excess of one hundred and forty High Court cases. These cases have arisen from the foggy ambiguity of the expression “absolutely free” in outlining these guarantees. A literal interpretation of these words ensures that a government cannot restrict interstate trade, commerce and travel. However, the question of what these should be “free from” remains to be clarified. The prevailing ambiguity has led to various theories, all of which have flowed in and out of High Court jurisprudence popularity throughout the years. The constant reinterpretations of the provision were recounted by Gageler J as being a “stress-trigger” for legal professionals and judges alike as well as “a form of torture” for law students.4 Seven years after Lord Wright of Durley retired from his position on the Judicial Committee of the Privy Council, he stated that s 92 of the Constitution should rather have been expressed as a purely economic clause; however, this has not been widely supported. An early interpretation of s 92 in Fox v Robbins (1909) argued for a lower tax rate for liquor that had been made from produce from within the State. Barton J stated that all goods must be taxed
1
This paper was originally submitted as assessment for the subject LAW2211 Constitutional Law.
2
Puig, Gonzalo Vilalta, 'Intercolonial Free Trade: The Drafting History of Section 92 of the Australian Constitution' (2011) 30 U. Tas. L. Rev. 1. 3
Australian Constitution s 92.
4
Stellios, James, 'The Section 92 Revolution', Encounters with Constitutional Interpretation and Legal Education (2018).
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