The High court over more than 100 years has failed to reach a settled interpretation of section 92. The court has embarked on a fundamental reconsideration of the section. From narrow to wide interpretations, all have been unable to sustain the need for laws which correctly regulated interstate and intrastate Trade.
Federation was bring a free trade area on the basis of a uniform external tariff, and the court has discerned that the primary purpose of section 92 is to create free trade throughout the Commonwealth and to prevent any obstruction on the free movement of people and goods across the State boundaries and to prevent discrimination against free trade. We again explore the journey of the High courts interpretations of section 92 though the past century.
During the first half of the twentieth Century, Chief Justice Dixon led the High Court to develop the doctrine that, unless the law in question directly and immediately restricted an activity of interstate trade and commerce, s92 would not be breached. This doctrine set precedent in the Bank Nationalisation Case, this decision is now recognised by the Court as having been wrongly decided. Since Cole v Whitfield Chief Justice Mason applied a test for meaning of the section. on the application of the test, a law breaches section 92 only if it imposes a restriction on interstate trade commerce and that restriction is discriminatory in a protectionist sense.