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) 129Google Scholar; Leslie, Zines, The High Court and the Constitution (4th ed, 1997)Google Scholar ch 8; Dennis, Rose, ‘Cole v Whitfield: ‘Absolutely Free’ Trade?’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003)Google Scholar; David, Sonter, ‘Intention or Effect? Commonwealth and State Legislation after Cole v Whitfield’ (1995) 69 Australian Law Journal 332Google Scholar.

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.

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 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, 141Google Scholar; Joseph, Raz, The Morality of Freedom (1986) 234–35Google Scholar; Michael, Walzer, Spheres of Justice (1983) xiiGoogle Scholar; Peter, Singer, Practical Ethics (2nd ed, 1993) 25Google Scholar.

⁸ In particular, the Court has referred to discrimination jurisprudence in United States, Canadian, and European courts in the course of developing its own approach. See, in particular, Street v Queensland Bar Association (1989) 168 CLR 461.

⁹ It has been said that ‘the vague terminology of section 92 [indicates] that its drafters intended its scope to be determined by judicial interpretation’: Gerard, Carney, ‘The Re-interpretation of Section 92: The Decline of Free Enterprise and the Rise of Free Trade’ (1991) 3 Bond Law Review 149, 149Google Scholar.

¹⁰ For discussion of these shifting positions, see Michael, Coper, Freedom of Interstate Trade under the Australian Constitution (1983)Google Scholar; Zines, above n 1, chs 6–7; Geoffrey Sawer, Australian Federalism in the Courts (1967) ch 10.

¹¹ See, eg, Evatt J’s conception of s 92, as outlined in R v Vizzard; Ex parte Hill (1933) 50 CLR 30, 71; See also Murphy J’s ‘fiscal burden theory’, which focused upon discrimination although within the otherwise limited domain of fiscal burdens: Buck v Bavone (1976) 135 CLR 110, 132.

¹² See, in particular, Barwick CJ in Samuels v Readers’ Digest Association Pty Ltd (1969) 120 CLR 1, 14–15. See also Dixon J’s understanding of s 92, for instance in O Gilpin Ltd v Commissioner for Road Transport & Tramways (NSW) (1935) 52 CLR 189, 205–6.

¹³ (1988) 165 CLR 360, 394.

¹⁴ Ibid 379.

¹⁵ Ibid 385.

¹⁶ Notably, Cole v Whitfield was the first High Court decision to give majority approval to use of the Convention Debates as an interpretative aid.

¹⁷ Cole v Whitfield (1988) 165 CLR 360, 402–3.

¹⁸ Ibid 403.

¹⁹ Ibid 391. The Court indicated that it saw no need to enunciate a single set of principles to govern all three subjects of s 92 — trade, commerce, and intercourse. Different principles might govern s 92’s operation where intercourse was concerned: at 388, 394.

²⁰ Ibid 392–3.

²¹ Ibid 391–2.

²² Ibid 399.

²³ Ibid 408.

²⁴ Ibid 408–9.

²⁵ Ibid 409.

²⁶ Ibid 382–3, 409–10.

²⁷ See, eg, Zines, above n 1, 140; Michael Coper, ‘Section 92 and the Future of Agricultural Marketing’, Address to the Agricultural Economics Society (Victorian Branch), 13 October 1988, 23.

²⁸ Cole v Whitfield (1988) 165 CLR 360, 409.

²⁹ Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411; Castlemaine (1990) 169 CLR 436; Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182 (‘Barley Marketing Board’).

³⁰ (1990) 169 CLR 436.

³¹ However, the Ministerial Notice exempting refillable bottles from the refund and collection provisions of the new legislative regime was clearly not uniform in its application: ibid 462 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ).

³² Ibid 472.

³³ Ibid.

³⁴ Ibid 473.

³⁵ Ibid 477.

³⁶ Ibid 479–80.

³⁷ Cole v Whitfield (1988) 165 CLR 360, 394–5, 402–3; Barley Marketing Board (1990) 171 CLR 182, 201.

³⁸ Cole v Whitfield (1988) 165 CLR 360, 394, 399; Castlemaine (1990) 169 CLR 436, 472, 478.

³⁹ In cases where protectionist discrimination follows not from legislation but rather from an administrative decision made under legislation, an analogous criterion of improper executive purpose can be employed to identify breaches of section 92. Although this was recognised as an issue from very early on, the High Court has in recent times expressed confidence in the capacity of modern administrative law doctrines to deal effectively with such situations: Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, 570, 614, 619. Nevertheless, some commentators doubt that the problem of discrimination through administrative discretion can be dismissed so readily: see, eg, Zines, above n 1, 134–5, 146–7. For an example of how administrative arrangements may by relevant to the application of the Cole test, see Cross v Barnes Towing and Salvage (Qld) Pty Ltd [2005] NSWCA 273, (Unreported, Spigelman CJ, Handley and Beazley JJA, 8 August 2005) [56].

⁴⁰ (2005) 219 ALR 403.

⁴¹ Ibid 505-7 [416], [422] (Hayne J); 522-3 [462]-[463] (Callinan J).

⁴² Ibid 414 [36] (Gleeson CJ and Heydon J); 447 [168] (Gummow J).

⁴³ Ibid 502-7 [401]-[426].

⁴⁴ This particular variation was proposed by an anonymous referee of this article. A similar formulation is given by Melissa, Castan and Sarah, Joseph, Federal Constitutional Law: A Contemporary View (2001) 270Google Scholar. Other formulations collapse stages 1 and 2, producing a two-stage inquiry in which the first stage identifies prima facie breach while the second considers any exculpatory regulatory goals. See, eg, Zines, above n 1, 151–2; Jeremy, Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1, 15Google Scholar.

⁴⁵ The approach is usually traced to Evatt J’s leading judgment in R v Vizzard; Ex parte Hill (1933) 50 CLR 30, 71. See Zines, above n 1, 112–3; Sawer, above n 10, 182–3.

⁴⁶ Sonter, above n 1, 337–41.

⁴⁷ Ibid 347.

⁴⁸ Ibid 337.

⁴⁹ (1988) 165 CLR 360, 409.

⁵⁰ Ibid 408.

⁵¹ Ibid 409.

⁵² Sonter, above n 1, 340.

⁵³ (1988) 165 CLR 360, 394.

⁵⁴ Ibid 408–9.

⁵⁵ Ibid 408, citing Freightlines & Construction Holding Ltd v New South Wales (1967) 116 CLR 1, 5.

⁵⁶ Cole v Whitfield (1988) 165 CLR 360, 408.

⁵⁷ (1990) 169 CLR 436, 471–2, cited in Sonter, above n 1, 338.

⁵⁸ Castlemaine (1990) 169 CLR 436, 472.

⁵⁹ See Coper, ‘Section 92 of the Australian Constitution’, above n 1, 141; Zines, above n 1, 446–7. That the present Court harbours significant disagreement regarding section 92’s doctrinal contours is evident in APLA (2005) 219 ALR 403.

⁶⁰ See, eg, Susan, Kenny, ‘Constitutional Fact Ascertainment’ (1990) 1 Public Law Review 134, 136Google Scholar; Christopher, Staker, ‘Section 92 of the Constitution and the European Court of Justice’ (1990) 19 Federal Law. Review 322, 335Google Scholar; Zines, above n 1, 140–3, 446–7; Carney, above n 9, 161; Gonzalo, Villalta Puig, ‘Free Movement of Goods: The European Experience in the Australian Context’ (2001) 75 Australian Law Journal 639Google Scholar, 647.

⁶¹ Kirk, above n 44.

⁶² Kirk notes that the same ‘sophisticated model’ of proportionality has been adopted in the constitutional rights jurisprudence of Canada and Hong Kong: ibid 4. The South African Constitutional Court has also embraced that model: see S v Makwanyane, 1995 (6) BCLR 665 (CC).

⁶³ Kirk, above n 44, 12–16.

⁶⁴ Or be accepted as ‘compatible’ in those contexts where reviewing courts are limited to processes of ‘soft review’.

⁶⁵ Kirk, above n 44, 6.

⁶⁶ Ibid 7–8.

⁶⁷ Jürgen, Schwartze, European Administrative Law (1992) 687Google Scholar; Nicholas, Emiliou, The Principle of Proportionality in European Law: A Comparative Study (1996)Google Scholar.

⁶⁸ Kirk, above n 44, 8–9.

⁶⁹ Ibid 8–9. This is true, at least, where proportionality analysis is employed in the context of constitutional guarantees. Where employed in the context of characterisation, that is, in testing a law’s link to a head of legislative power, proportionality analysis may draw judges into evaluative reasoning at an earlier stage. Kirk contends that the application of level-two ‘necessity’ implicates value judgements in the characterisation setting where, as in Australia, judges are left with the task of identifying and articulating the relevant ‘interests’ to be protected from more than minimal interference: ibid 27.

⁷⁰ While the European jurisprudence appears to treat the ‘necessity’ element as largely non-evaluative, this approach does not follow inevitably from the underlying concept. The necessity question could, and in some other settings does, take on greater evaluative significance. For instance, United States constitutional law employs, in the notion of ‘less restrictive means’, a concept similar to the ‘necessity’ element in European proportionality analysis. There, there seems to be greater scope and propensity for judicial value judgements to play a role in assessing issues of necessity.

⁷¹ Kirk, above n 44, 6, 9.

⁷² Ibid 24.

⁷³ Ibid 24, 27, 39–41.

⁷⁴ But see discussion below at Section 4(ii) regarding the inevitability of some evaluative component, even if minimal only.

⁷⁵ (1996) 187 CLR 579, 593–4 (‘Leask’).

⁷⁶ See, eg, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 88–89 (Dawson J); Cunliffe v Commonwealth (1994) 182 CLR 272, 377 (Toohey J) (‘Cunliffe’).

⁷⁷ Kirk, above n 44, 41–2. Interestingly, United States constitutional scholar Vicki Jackson has applied Kirk’s distinction — between the deference due in proportionality analysis in the characterisation context as compared with the ‘constitutional guarantee’ context — in an analysis of United States constitutional jurisprudence: Vicki, Jackson, ‘Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conversation on ‘Proportionality’, Rights and Federalism’ (1999) 1 University of Pennsylvania Journal of Constitutional Law 583Google Scholar, 605, 631–2.

⁷⁸ Kirk, above n 44, 12, 14.

⁷⁹ Ibid 19–20, 59–60. Kirk acknowledges that complex and technical subject matter may warrant particular deference. In Section 4(vi) I discuss problems of judicial expertise and fact finding capability.

⁸⁰ Ibid 14, 15–16.

⁸¹ (1990) 169 CLR 436, 473, cited by Kirk, above n 44, 14.

⁸² Kirk, above n 44, 15.

⁸³ Ibid 5–6.

⁸⁴ Ibid 15.

⁸⁵ Ibid 14.

⁸⁶ Ibid 24–5, 41.

⁸⁷ Ibid 6, emphasising the attention given to purpose in the reasoning in Castlemaine.

⁸⁸ Ibid 15. In other words, even if a legislative provision evidenced additional, benign, purposes, whether intended or not, a protectionist purpose would infect it beyond redemption. It is always possible that a court would hesitate in a case where the protectionist purpose seemed minor or secondary. The High Court has given little attention to this question of degree in its reasons. It is not, in any case, important to my analysis.

⁸⁹ (1990) 169 CLR 436, 471.

⁹⁰ Kirk, above n 44, 14.

⁹¹ Ibid.

⁹² Carney, above n 9, 161: the availability of alternative means is relevant because it ‘indicate[s] a protectionist object’.

⁹³ Kirk, above n 44, 6 n 35 and accompanying text.

⁹⁴ Castlemaine (1990) 169 CLR 436, 471–2 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ).

⁹⁵ Cunliffe (1994) 182 CLR 272, 322 (Brennan J); Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Generally, the High Court’s constitutional jurisprudence distinguishes between heads of law-making power conferred by reference to some purpose (‘purposive’ powers) and those conferred by reference to a nominated subject matter (’subject matter’ powers).

⁹⁶ Kirk, above n 44, 31–4.

⁹⁷ See the cases cited by Kirk, ibid 38–40.

⁹⁸ Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 88–9 (Dawson J); Cunliffe (1994) 182 CLR 272, 377 (Toohey J); Leask (1996) 187 CLR 579, 593–5 (Brennan CJ).

⁹⁹ (1990) 169 CLR 436, 473.

¹⁰⁰ Zines, above n 1, 143; Rose, above n 1, 342.

¹⁰¹ (1990) 169 CLR 436, 480.

¹⁰² Ibid.

¹⁰³ See Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 211 ALR 18, interpreting the s 99 prohibition on the Commonwealth’s ‘giv[ing] preference’ in matters of trade, commerce and revenue.

¹⁰⁴ Compare the Full Federal Court’s decision in Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63, 76–7 (‘Sportodds’) with Cross v Barnes Towing and Salvage (Qld) Pty Ltd [2005] NSWCA 273 (Unreported, Spigelman CJ, Handley and Beazley JJA, 8 August 2005) [53], [68], [108].

¹⁰⁵ A similar claim is made by Rose, above n 1, 346, although there it is only one among several prescriptions and so the argument in support is limited to a few lines.

¹⁰⁶ See, in particular, Donald, Regan, ‘The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause’ (1986) 84 Michigan Law Review 1091Google Scholar.

¹⁰⁷ (1988) 165 CLR 360, 393.

¹⁰⁸ Regan, above n 106, 1112–16.

¹⁰⁹ Ibid 1113.

¹¹⁰ Ibid 1114.

¹¹¹ Ibid 1118.

¹¹² Castlemaine (1990) 169 CLR 436, 470.

¹¹³ (1990) 171 CLR 182, 203–4.

¹¹⁴ An earlier draft of section 92 concerned itself with freedom of trade ‘within the Commonwealth’. This was intentionally changed to ‘between the States’, and ultimately to ‘among the States’: Official Record of the Debates of the Australasian Federal Convention, Melbourne, 16 February 1898, 1014–20; Official Record of the Debates of the Australasian Federal Convention, Melbourne, 11 March 1898, 2365 (Sir Isaac Isaacs).

¹¹⁵ (1989) 168 CLR 461.

¹¹⁶ Ibid 485.

¹¹⁷ Ibid 512.

¹¹⁸ Ibid 522.

¹¹⁹ Ibid 570.

¹²⁰ While this may not have been the sole rationale for the inclusion of section 92 in the Constitution — a more general desire to promote economic wellbeing probably motivated some supporters of the provision — the Convention Debates suggest, and the High Court has accepted, that it was the predominant rationale.

¹²¹ Many of the important questions receive treatment in Kent, Greenawalt, Statutory Interpretation: 20 Questions (1999)Google Scholar; Kent, Greenawalt, ‘Are Mental States Relevant for Statutory and Constitutional Interpretation?’ (2000) 85 Cornell Law Review 1609Google Scholar.

¹²² See Stenhouse v Coleman (1944) 69 CLR 457, 471 (Dixon J); Richardson v Forestry Commission (1988) 164 CLR 261, 311 (Deane J).

¹²³ For instance, ‘intentions’ are susceptible of various gradations of specificity and directness, while the ‘readers’ from whose standpoint objective legislative purpose is inferred could be modelled in numerous ways. A careful, comprehensive, account of these and other variables is provided by Greenawalt, Statutory Interpretation, above n 121, chs V and IX. On levels of generality, see Aharon, Barak, ‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002) 116 Harvard Law Review 16Google Scholar, 75–6.

¹²⁴ In Australia, the leading authority is Stenhouse v Coleman (1944) 69 CLR 457. In the United States, the distinction has been put most forcefully in recent times by Justice Scalia. See, eg, Edwards v Aguillard, 482 US 578, 636–9 (1987) (Scalia J, dissenting).

¹²⁵ Precisely whose subjective intentions count — as between all legislators, only some legislators, or perhaps influential non-legislators — represents another point of contention in the scholarship. See Greenawalt, Statutory Interpretation, above n 121, ch X.

¹²⁶ Ibid ch XI; Barak, above n 123, 74; Kirk, above n 44, 6.

¹²⁷ Edwards v Aguillard, 482 US 578, 636–9 (1987) (Scalia J, dissenting). Justice Scalia has elsewhere echoed the normative critique: Antonin, Scalia, A Matter of Interpretation: Federal Courts and the Law (1997) 17Google Scholar.

¹²⁸ See, eg, Frank, Easterbrook, ‘Statutes’ Domains’ (1983) 50 University of Chicago Law Review 533, 547Google Scholar; Jeremy, Waldron, ‘Legislators’ Intentions and Unintentional Legislation’ in Andrei, Marmor (ed), Law and Interpretation (1995) 329Google Scholar.

¹²⁹ Kent Greenawalt has noted, along similar lines, the likely diminution of the empirical critique when applied to Cabinet government systems: Greenawalt, Statutory Interpretation, above n 121, 111–12. Members of the High Court have long acknowledged the empirical critique, though in the context of deliberative bodies other than parliaments: Arthur Yates & Co Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37.

¹³⁰ The Court is, of course, more relaxed about subjective purpose inquiry where such inquiry is directed by, rather than at, a legislature, in the form of a statutorily mandated test. See, eg, News Limited v South Sydney District Rugby League Football Club Limited (2003) 215 CLR 563.

¹³¹ (1944) 69 CLR 457.

¹³² Ibid 471. Presumably, Dixon J would exclude here all variants on subjective purpose inquiry, such as consideration of legislators’ subjective purposes in enacting a statute, as well as their intentions as to the purpose that would be attributed to a particular statute.

¹³³ Ibid.

¹³⁴ See, eg, Australian Communist Party v Commonwealth (1951) 83 CLR 1, 254 (Fullagar J), 274 (Kitto J). For a more recent statement, see Richardson v Forestry Commission (1988) 164 CLR 261, 311 (Deane J): ‘The reference to such a purpose or object is not, of course, to the subjective motives or purposes of the various members of the Parliament which enacted the law. It is a reference to the purpose or object of the law itself — that which it can be seen to be designed to serve or achieve.’

¹³⁵ For example, in Cole v Whitfield (1988) 165 CLR 360, 385, the Court set out its position on the use of drafting history in the interpretation of provisions of the Constitution:

Reference to the history of [constitutional provisions] may be made, not for the purpose of substituting for the meaning of the words used the scope and effect — if such could be established — which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

In other words, the Court advocated an objective, ‘reader understanding’, inquiry rather than an inquiry into the actual, subjective, mental states of the framers.

¹³⁶ For an early indication, see R v Barger (1908) 6 CLR 41, 75 (Griffith CJ, Barton and O’Connor JJ). For discussion in the specific context of s 92, see Sawer, above n 10, 178, 190.

¹³⁷ Plaintiff S157 v Commonwealth (2003) 211 CLR 476, 513–4 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262 (Fullagar J); Commonwealth v Mewett (1997) 191 CLR 471, 497 (Dawson J), 547 (Gummow and Kirby JJ). See generally Harry, Evans, ‘Hobbes versus Madison and Isaacs versus Baker: Contrary Theories and Practices in Australian Democracy’ (2001) 24 University of New South Wales Law Journal 701Google Scholar.

¹³⁸ Greenawalt, for example, maintains a principal focus upon the statutory interpretation context, while asserting that the context of constitutional interpretation would be broadly analogous: Greenawalt, ‘Are Mental States Relevant’, above n 121, 1672.

¹³⁹ See, eg, (1951) 83 CLR 1,274 (Kitto J). See also Richardson v Forestry Commission (1988) 164 CLR 261, 307 (Deane J).

¹⁴⁰ See Michael Dorf, ‘A Partial Defense of an Anti-Discrimination Principle’, Issues in Legal Scholarship: The Origins and Fate of Antisubordination Theory (2002) Article 2, 12 <http://www.bepress.com/ils/iss2/art2> at 20 October 2005: ‘Ends analysis is needed to sort sham from real purposes, because of the possibility of articulating some purpose to which any policy is narrowly tailored.’ See also Charles, Fried, ‘Types’ (1997) 14 Constitutional Commentary 55, 61–2Google Scholar.

¹⁴¹ The assertion of legislators’ subjective intent about a statute will often just be implicit in the fact of its enactment. In enacting a law, legislators are generally implying that they believe it to be a valid exercise of legitimate power. Usually, but not always, the context will reveal the precise power or powers upon which that implicit reliance is based.

¹⁴² This kind of assessment finds expression in the majority judgment in Castlemaine, which acknowledges State legislative power to make laws addressing a ‘real danger’, presumably as distinct from an imagined danger or illusory danger: (1990) 169 CLR 436, 472.

¹⁴³ I am assuming that, almost always, legislatures will be either silent as to the purpose of law, or will assert for it some non-protectionist purpose. It is nevertheless possible that, on occasion, a subjective purpose of protectionist discrimination will be articulated in circumstances where an objective purpose test might not have revealed it; see, eg, Sportodds (2003) 133 FCR 63, 78–9. In such cases, a preference for a subjective conception of purpose could not really be characterised as deferential to the legislature.

¹⁴⁴ See Handyside v United Kingdom (1976) 24 Eur Court HR (ser A). More generally, see Louis, Henkin et al, Human Rights (1999) 564–75Google Scholar; Michael, Fordham and Thomas, de la Mare, ‘Identifying the Principles of Proportionality’ in Jeffrey, Jowell and Jonathan, Cooper (eds), Understanding Human Rights Principles (2001) 27Google Scholar, 54. The term has been employed directly by some members of the High Court, most notably by Brennan CJ: Australian Capital Television Pty Ltd v Commonwealth [No 2] (1992) 177 CLR 106, 159; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 156; Cunliffe (1994) 182 CLR 272, 325; Leask (1996) 187 CLR 579, 595.

¹⁴⁵ Kirk also seems to suggest that, in characterising laws by reference to purposive powers, the Court cannot sensibly disavow evaluative reasoning altogether, but ought instead to settle for a very deferential mode of review: Kirk, above n 44, 42.

¹⁴⁶ It may be that there is some separate reason, not concerned with the relevance of actual effects, for administering a norm by reference to some other criterion. For instance, concerns about judicial competence and legitimacy may lead to the adoption of a touchstone other than actual effects, notwithstanding that the latter seems more suitable in the abstract.

¹⁴⁷ Regan, above n 106, 1133–4.

¹⁴⁸ ‘Even a dog distinguishes between being stumbled over and being kicked’: Oliver Wendell Holmes Jr, The Common Law (Mark DeWolfe Howe (ed) 1963, first published 1881) 7. See also Fried, above n 140, 64.

¹⁴⁹ This emphasis can be seen in the default position on culpability contained in federal model criminal codes in Australia and the United States: Criminal Code Act 1995 (Cth) sch 1 cl 5.6; Model Criminal Code: American Law Institute, Model Penal Code and Commentaries, Part 1 §2.02(3) (1980).

¹⁵⁰ An effects-focused standard of course need not be absolute. However, as the next sub-section explains, there are in the section 92 context independent reasons for rejecting any effects-based test coupled to a proviso of ‘reasonable regulation’.

¹⁵¹ (2005) 219 ALR 403, 449 [178] (Gummow J), 507 [423]-[424] (Hayne J).

¹⁵² In the unusual case where there is clear evidence of a discriminatory subjective intention then the test arguably should adopt a subjective standard directly, as this would best further s 92’s rationale of preserving federal goodwill. Such evidence was apparently a factor in Gyles J’s first instance decision in Sportodds Systems Pty Ltd v New South Wales (2003) 201 ALR 706. It may even have been a silent factor in Castlemaine, although the relevant prejudicial legislative debates were not adverted to in the judgments. However, where the asserted purpose is a benign one, as is more often the case, an objective purpose test will function better as a proxy for a subjectively-focused test.

¹⁵³ See, generally, Australian Communist Party v Commonwealth (1951) 83 CLR 1. See also Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, 192 (Gaudron J). On the issue of striking a respectful tone in calibrating a test of constitutionality, see Jackson, above n 77, 628–9.

¹⁵⁴ On this general timidity, see Coper, Freedom of Interstate Trade, above n 10, 303.

¹⁵⁵ (1990) 169 CLR 436, 473.

¹⁵⁶ Ibid 480.

¹⁵⁷ This is consistent with the ‘general aversion of Australian judges to being seen to intrude on the political or legislative domain’: Kirk, above n 44, 53. Recent years have seen regular reiteration of this aversion in High Court judgments. For a very recent example, see APLA (2005) 219 ALR 403, 413-14 [31] (Gleeson CJ and Heydon J), 505-6 [418]-[419] (Hayne J).

¹⁵⁸ Melville Nimmer, Nimmer on Freedom of Speech (1984) §§ 2.02–2.03; Louis, Henkin, ‘Infallibility under Law: Constitutional Balancing’ (1978) 78 Columbia Law Review 1022Google Scholar; T, Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale Law Journal 943, 948Google Scholar; Richard, Fallon Jr, ‘Foreword: Implementing the Constitution’ (1997) 110 Harvard Law Review 54Google Scholar, 77–79.

¹⁵⁹ This distinction is explained clearly, and translated to an Australian context, in Adrienne, Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668Google Scholar.

¹⁶⁰ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561–2, 567. See also Mulholland v Australian Electoral Commission (2004) 209 ALR 582.

¹⁶¹ My argument would be strengthened if I were able to claim that this preference did not manifest only in the realm of federal structural implications, but rather permeated all constitutional implications. However, as noted above, the implied freedom of political communication, as presently conceptualised, is clearly a defeasible principle.

¹⁶² In this respect s 117 is analogous to the ‘intercourse’ limb of s 92. As explained, the High Court has distinguished that limb from the trade and commerce limb and indicated that different principles underpin each, such that different tests are appropriate: Cole v Whitfield (1992) 165 CLR 360, 388, 394.

¹⁶³ In reference to the seminal case of Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

¹⁶⁴ See Amelia, Simpson, ‘State Immunity from Commonwealth Laws: Austin v Commonwealth and Dilemmas of Doctrinal Design’ (2004) 32 University of Western Australia Law Review 44Google Scholar.

¹⁶⁵ Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 56 (Latham CJ), 66 (Rich J), 74 (Starke J), 82 (Dixon J); Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 227; Austin v Commonwealth (2003) 215 CLR 185, 217 (Gleeson CJ), 248 (Gaudron, Gummow and Hayne JJ), 278–9 (McHugh J), 301 (Kirby J).

¹⁶⁶ While this is clearly the dominant view, there have been occasional indications to the contrary in the judgments in relevant cases. See, eg, Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 239–40 (Brennan J).

¹⁶⁷ It remains uncertain whether the limitation operates to constrain Commonwealth executive action, as well as legislative action. Some formulations of the Melbourne Corporation principle are suggestive of such a wider reach: see, eg, Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 75 (Starke J).

¹⁶⁸ Austin v Commonwealth (2003) 215 CLR 185; Bayside City Council v Telstra Corporation Limited (2004) 216 CLR 595, 626. Where the impugned law is one of general application, the implied limitation may operate to compel a reading down in favour of the States rather than dictating wholesale invalidation. However, this does not negate the absolute nature of the implied prohibition, as the States’ protection remains complete.

¹⁶⁹ (2003) 215 CLR 185, 219.

¹⁷⁰ Kruger v Commonwealth (1997) 190 CLR 1, 122 (Gaudron J), citing Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. See also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

¹⁷¹ (1999) 198 CLR 511, 540 (Gleeson CJ), 546 (Gaudron J), 558 (McHugh J), 575 (Gummow and Hayne JJ), 626 (Callinan J) (‘Wakim’).

¹⁷² Graeme, Hill, ‘Revisiting Wakim and Hughes: The Distinct Demands of Federalism’ (2002) 13 Public Law Review 205Google Scholar, 215–7.

¹⁷³ Ibid 217–26.

¹⁷⁴ (1999) 198 CLR 511, 540 (Gleeson CJ), 548, 554 (McHugh J), 569 (Gummow and Hayne JJ), 625 (Callinan J). See also Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369, 392 (McHugh J).

¹⁷⁵ Wakim (1999) 198 CLR 511, 556–7 (McHugh J), 574 (Gummow and Hayne JJ).

¹⁷⁶ This may have been what McHugh J was getting at when he used s 92 as an example of the immovability of the Constitution’s dictates in Wakim, ibid 556:

Try as they might, for example, the States and the Commonwealth cannot defeat the operation of s 92 of the Constitution, no matter how burdensome or inconvenient its application to government activity may be. That is because s 92 withdraws power from the States and the Commonwealth over the area where it operates.

¹⁷⁷ I would include here those extreme and unusual circumstances — variations on the theme of imminent danger — that have at times inspired courts to dispense with, or navigate around, normally iron-clad constitutional principles. See, eg, the abnormally deferential stance of the High Court in assessing the reach of the Commonwealth’s s 51(xi) defence power during wartime: Farey v Burvett (1916) 21 CLR 433.

¹⁷⁸ This latter kind of balancing modality was referred to above using the American terminology of ‘categorical’ or ‘definitional’ balancing.

¹⁷⁹ See, eg, Aleinikoff, above n 158, 1001; SirAnthony, Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal Law Review 1Google Scholar, 5; JusticeJ J, Doyle, ‘Judicial Law Making — Is Honesty the Best Policy?’ (1995) 17 Adelaide Law Review 161Google Scholar; Zines, above n 1, 445.

¹⁸⁰ I am assuming here that making legal form the principal touchstone is out of the question, in light of the High Court’s unequivocal rejection of that option in Cole v Whitfield. See the discussion in Section 1, above.

¹⁸¹ That there must be limits to s 92’s reach is one of the few aspects of s 92 jurisprudence on which there has been enduring agreement. See, eg, W & A McArthur Ltd v Queensland (1920) 28 CLR 530, 567–8 (Gavan Duffy J).

¹⁸² (1988) 165 CLR 360, 403.

¹⁸³ See the discussion at n 152, above.

¹⁸⁴ Treaty Establishing the European Community, opened for signature 25 March 1957, 298 UNTS 11, arts 28 and 30 (entered into force 1 January 1958) (‘EC Treaty’). The Agreements administered by the World Trade Organization further illustrate the point, although these have not been a focus for comparison with s 92 in the Australian scholarship.

¹⁸⁵ Article 2 of the EC Treaty confirms that the Treaty’s principal purpose is to promote economic development. As the EC Treaty provisions pursue agreed supranational interests, any political utility they may have is similarly supranational. While European political arrangements are becoming more analogous with those of federal nation states, the EC free trade regime remains grounded in the prior paradigm of economic development and integration: see Peter, Stirk and David, Weigall (eds), The Origins and Development of European Integration: A Reader and Commentary (1999)Google Scholar.

¹⁸⁶ EC Treaty, art 30 states:

The provisions of [Article 28] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.

¹⁸⁷ The so-called ‘rule of reason’: see Procureur du Roi v Benoit & Gustave Dassonville [1974] ECR 837, 852; Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon Case) [1979] ECR 649, 662.

¹⁸⁸ See, eg, Staker, above n 60, 342–5; Villalta Puig, above n 60, 649–50.

¹⁸⁹ (1988) 165 CLR 360, 391–3.

¹⁹⁰ Ibid 392.

¹⁹¹ Other High Court decisions of similar vintage to Cole v Whitfield reveal an interest in and familiarity with European jurisprudence spanning a range of legal fields. See, eg, Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177, 188 (Mason CJ and Wilson J); Street v Queensland Bar Association (1989) 168 CLR 461, 571 (Gaudron J); Attorney-General (NT) v Maurice (1987) 161 CLR 475, 490 (Deane J).

¹⁹² See, eg, Alexander, Bickel, The Least Dangerous Branch (1962)Google Scholar; John, Hart Ely, ‘Legislative and Administrative Motivation in Constitutional Law’ (1970) 79 Yale Law Journal 1205Google Scholar; John, Hart Ely, Democracy and Distrust (1980)Google Scholar; Greenawalt, Statutory Interpretation, above n 121, chs VIII to XI. See also the symposium articles in (1978) 15 San Diego Law Review, in particular: Paul Brest, ‘Reflections on Motive Review’, 1141; J Morris Clark, ‘Legislative Motivation and Fundamental Rights in Constitutional Law’, 953; Kenneth Karst, ‘The Costs of Motive-Centered Inquiry’, 1163.

¹⁹³ While the criterion of judicial legitimacy could be invoked as a basis for preferring one doctrinal course over another, that multi-faceted debate with its many levels of contestation would, as noted earlier, require a separate article. It suffices to note here that individual judges are unlikely to be persuaded easily that their own views are flawed. It also appears that the High Court has grown less comfortable with evaluative balancing in the constitutional context since the leading s 92 cases were decided: Langer v Commonwealth (1996) 186 CLR 302, 318 (Brennan CJ), 334 (Toohey and Gaudron JJ); Leask (1996) 187 CLR 579, 602 (Dawson J); Kruger v Commonwealth (1997) 190 CLR 1, 128 (Gaudron J).

¹⁹⁴ See Andrew, Bell, ‘Section 92, Factual Discrimination and the High Court’ (1991) 20 Federal Law Review 240Google Scholar; Rose, above n 1, 346; Kirk, above n 44, 53–4, 56.

¹⁹⁵ For a discussion of the High Court’s own competence-based concerns about fact-finding, see Kenny, above n 60, 163; Bell, above n 194.

¹⁹⁶ See, generally, Colin, Diver, ‘Sound Governance and Sound Law’ (1991) 89 Michigan Law Review 1436Google Scholar. See also Kirk, above n 44, 57. Kirk notes that even the European Courts with their explicitly effects-based balancing jurisprudence are deferential where matters of complex economic fact are implicated. Presumably, that deference flows from recognition of the competence concerns thus raised. Staker, above n 60, 344–5 and Bell, above n 194, 245–9 also see this expertise-related difficulty as likely to plague fact-finding efforts in the s 92 context.

¹⁹⁷ Bell, above n 194, 246, noting the parallel with Part IV of the Trade Practices Act 1974 (Cth) and the acknowledged dependence on expertise in that context.

¹⁹⁸ Transcript of Proceedings, Barley Marketing Board (High Court of Australia, Mason CJ, 5–6, June 1990) 117, cited in Bell, above n 194, 249.

¹⁹⁹ Ibid.

²⁰⁰ Kenny, above n 60, 149ff; Zines, above n 1, 474.

²⁰¹ Coper, ‘Section 92 of the Australian Constitution’, above n 1, 146–7; Bell, above n 194, 247; Rose, above n 1, 346. The difficulty was adverted to in a different context in Austin v Commonwealth (2003) 215 CLR 185, 249; see Graeme, Hill, ‘Austin v Commonwealth: Discrimination and the Melbourne Corporation Doctrine’ (2003) 14 Public Law Review 80Google Scholar, 83.

²⁰² This dependency was a notable source of frustration for the Court on earlier understandings of section 92 that revolved around factual determinations: see Sawer, above n 10, 193.

²⁰³ In both cases, the parties submitted joint statements of agreed facts. In Cole, this statement virtually eliminated the scope for factual dispute and with it the need for judicial fact-finding. In Castlemaine, South Australia made concessions during argument that reduced greatly the need for judicial fact-finding.

²⁰⁴ (1988) 165 CLR 360, 408.

²⁰⁵ The inevitability of this neglect has long been understood by the Court and invoked to justify its reluctance to engage in factual inquiry. See, for instance, Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309, 376 (Isaacs J). While courts are sometimes prepared to undertake their own independent fact-finding, that course is not pursued lightly given the ‘obvious dangers’ attending it in an adversarial system: Sportodds (2003) 133 FCR 63, 82. See also Gerhardy v Brown (1985) 159 CLR 70, 141–2 (Brennan J).

²⁰⁶ Constitutional Commission, Final Report of the Constitutional Commission (1988) 838–45Google Scholar.

²⁰⁷ Ibid; Michael, Coper, ‘The Second Coming of the Fourth Arm: The Role and Functions of the Inter-State Commission’ (1989) 63 Australian Law Journal 731Google Scholar; Cheryl, Saunders, ‘Hallmarks of Australian Federalism: Securing Free Trade and a Common Market’ in C, Lloyd Brown-John (ed), Federal-type Solutions and European Integration (1993) 307Google Scholar; Bell, above n 194.

²⁰⁸ Industry Commission Act 1989 (Cth) s 48; Coper, ‘The Second Coming’, above n 207.

²⁰⁹ Another mooted alternative — remittal to a single High Court judge or a lower court — seems merely to shift, rather than address, the problems of limited judicial time and expertise. See Bell, above n 194, 250–1.

²¹⁰ The Court already has considerable experience in undertaking this task, which is a staple of analysis in contract law, criminal law, and statutory interpretation.

²¹¹ As to the supposedly greater fact-dependency of an effects-focused test, see Sportodds (2003) 133 FCR 63, 66, 77–8.

²¹² Fried, above n 140, 58–9; Aleinikoff, above n 158, 977–8; Richard, Fallon, Implementing the Constitution (2001) 86Google Scholar; Ashutosh, Bhagwat, ‘Purpose Scrutiny in Constitutional Analysis’ (1997) 85 California Law Review 297, 322Google Scholar; Donald, Regan, ‘Judicial Review of Member-state Regulation of Trade within a Federal or Quasi-federal System’ (2001) 99 Michigan Law Review 1853, 1892–3Google Scholar.

²¹³ Fried, above n 140, 63–4; Fallon above n 212, 95–6; Bhagwat, above n 212, 322–3, 354.

²¹⁴ See, eg, Jed, Rubenfeld, ‘Affirmative Action’ (1997) 107 Yale Law Journal 427Google Scholar.

²¹⁵ This criticism has been levelled in relation to Cole v Whitfield: see Coper, ‘Section 92 and the Future of Agricultural Marketing’, above n 27.

²¹⁶ The same intuition may not hold where the question is whether a facially discriminatory law is protectionist in purpose or effect. However, strong presumptions of invalidity, typical in these settings, may serve to reduce the dependence upon factual evidence. Different views as to the merits of such a presumption may have been a factor in the disagreement between the majority and minority in Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411.

²¹⁷ Gráinne, de Búrca, ‘Unpacking the Concept of Discrimination in EC and International Trade Law’ in Catherine, Barnard and Joanne, Scott (eds), The Law of the Single European Market: Unpacking the Premises (2002) 181Google Scholar, 191–2; Kirk, above n 44, 5–7, 62; Villalta Puig, above n 60.

²¹⁸ Tiered analysis, with an initial focus upon purpose, features in GATT and NAFTA reviews of facially neutral environmental measures: see Bradly, Condon, ‘Reconciling Trade and Environment: A Legal Analysis of European and North American Approaches’ (2000) 8 Cardozo Journal of International and Comparative Law 1Google Scholar, 12–15.

²¹⁹ See Michael, Lawrence, ‘Towards a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework’ (1998) 21 Harvard Journal of Law and Public Policy 395Google Scholar, 416–22.

²²⁰ Coper, ‘Section 92 of the Australian Constitution’, above n 1, 142; Rose, above n 1, 346. The intuition also seems implicit in the decision tree model of section 92 jurisprudence, discussed in Section 1(iii) above.

²²¹ See Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR 161, 181; Zines, above n 1, 475–6.

²²² (1988) 165 CLR 360, 407–9.

²²³ For instance, if South Australia were to procure new data on the relative rates of bottle return and discover some change in the public’s behaviour, it might feel justified in reintroducing the differential refund rates found unconstitutional in Castlemaine. It would then fall to an affected party to take the matter before the High Court to contest the significance of the new data. If such testing of an earlier decision’s tipping point became the norm, the States would doubtless be advantaged by their status as experienced and well resourced constitutional litigants.

²²⁴ Sawer, above n 10, 193–4.

²²⁵ The only cases in which different results seem a distinct possibility are those where limited and fairly general factual evidence creates a different impression regarding the legitimacy of some legislative measure than does a much more detailed factual inquiry. Bath v Alston Holdings Pty Ltd was perhaps a case of this type.