Cole v Whitfield [1988] HCA 18

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Cole v Whitfield [1988] HCA 18

ORDER Answer the questions identified in the order of removal as follows:

A.

Question: Whether the possession in Tasmania by the respondents of sixty male and thirty-seven female crayfish imported from South Australia is possession that is the subject of a transaction of interstate trade and commerce within the meaning of s. 92 of the Commonwealth of Australia Constitution?

Answer: Not necessary to answer.

B.

Question: Whether the provisions of reg. 31(1)(d)(ix) and (x) of the Sea Fisheries Regulations 1962 made under the Fisheries Act 1959 (Tas.), when applied to the possession of the aforesaid crayfish, are compatible with the freedom guaranteed by s. 92 of the Constitution?

Answer: Yes.

Set aside the order dated 3 November 1986 of the Court of Petty Sessions dismissing the complaint and remit the matter to the Supreme Court of Tasmania.

Cur. adv. vult.

The Court delivered the following written judgment:—

1988, May 2 Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

This case and Bath v. Alston Holdings Pty. Ltd., which were heard successively, turn upon the effect of s. 92 of the Constitution. The appellant in this case, the plaintiff in Bath v. Alston Holdings Pty. Ltd. and the interveners (the Commonwealth and the States) presented arguments which invited the Court to acknowledge that there is now no settled interpretation of s. 92 and which supported the adoption of what has been broadly described as the "free trade" approach to the construction of the section. Before we examine these arguments, we shall explain the factual and legislative context of the present case.

Section 9 of the Fisheries Act 1959 Tas. ("the Act") empowers the Governor of Tasmania to make regulations relating to a number of subjects including: