The Re-interpretation of Section 92: The Decline of Free Enterprise and the Rise of Free Trade

Gerard Carney, Bond University

Abstract

The re-interpretation of section 92 of the Commonwealth Constitution by the High Court in Cole v Whitfield has effected a fundamental change in the constitutional power of both the Commonwealth and the States to regulate interstate trade and commerce. Although this change has come about by judicial re-interpretation and not by way of the formal amendment procedure prescribed by section 128 of the Constitution, one can readily discern from the vague terminology of section 92 that its drafters intended its scope to be determined by judicial interpretation.