Contempt for the Constitution

As Cats know I think Australian elites treat the Constitution with contempt – a set of guidelines, as opposed to absolute prohibitions on behaviour.

So in The Australian this morning we see this:

The difficulty with section 92 is that it cannot be read literally. Trade and movement between the states can never be “absolutely free”. Necessity dictates some restrictions.

Dangerous goods and illegal drugs need to be banned, state and federal taxes need to be paid to support government and communities need to be protected from injury. If this were not the case, section 92 would dictate that violent pornography and apples infected with fruit fly could be sent between states without restriction.

This is in relation to section 92 of the Constitution – the interstate commerce clause. Now I don’t want to be unsympathetic to the problems of violent pornography and fruit flies but allowing them to cross a state border is precisely what the Constitution mandates. If the authorities want to tackle issues such as violent pornography and fruit fly they have to come up with a solution that does not violate the Constitution and not pull some story out of their backsides that somehow the Constitution does not really apply or mean what it says.

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44 Responses to Contempt for the Constitution

  1. stackja

    Border inspections for fruit fly still exist?

  2. Goanna

    We need to hold their feet to the fire, there’s been enough trampling.

  3. OldOzzie

    stackja
    #3463372, posted on May 25, 2020 at 10:05 am
    Border inspections for fruit fly still exist?

    Yep – crossing from NT to WA

  4. stevem

    They can’t prevent crossing a border with violent pornography or fruit flies – they never have. What does happen is that violent pornography and non-certified fruit are illegal in varying jurisdictions and they may elect to undertake a search upon suspicion of possessing illegal objects.
    The fact that they may “suspect” everybody at a border crossing is beside the point. It may be a technicality, but fruit fly searches have never fallen foul of section 92. Preventing Australians not in posession of contrabend crossing a state border is a very different thing.

  5. Delta

    Border inspections for fruit fly still exist? — Well last time I went through Perth airport there were bins for travellers to deposit fruit that they had with them, if I remember correctly. Say, does anyone remember Perth – now that it has been cut off for so long?

    Anyway see here. WA – Quarantine WA border checkpoints.

    And do politicians treat the Constitution with contempt? Sure do in a world where anything goes.

  6. Roger

    Your concern goes to the drafting of the clause.

    What does “absolutely free” mean, absent a definition of what restraints trade is to be “absolutely free from?

    Reading the document in its original context and having regard to the decisions of courts from early on, it is most likely that trade between the states was to be “absolutely free” only in regard to taxes and duties being applied by one state upon another.

  7. John Comnenus

    Why doesn’t Tourism Australia or the Qld Chamber of Commerce organise a class action against the Qld Govt? Announcing a class action of QLD tourism operators would probably see the Qld Govt fold fairly quickly.

    It would be pretty easy to quantify domestic tourism revenue per month and come up with a very credible claim against the QLD Govt that runs into billions.

  8. ProfessorFred Lenin

    In east gippsland they used to have a fruit fly roadlok a few miles out of town ,the fruit shops in town woukd go to Melbourne market and buy apples etc , a worker in the country town would buy apples for his cut lunch,if he worked the other side of the fruit fly block they would confiscate his lunch apple or he would have to est it and give themthe core . Now theres a bureaucratic creation . Yjeu would conficate bananas even thogh bananas from the same plantstion were sold openly in Melbourne market and shops . They really thought taht one through ,the same type of people still work for the government .

  9. tombell

    The trouble is the Constitution is “interpreted” by the High Court. A body itself created by the Constitution. A body which is periodically riven by a philosophical divide (although they all agreed on Pell). A body which,eg, finds “implied rights” when it so needs. The fact that s92 appears reasonably clear in meaning would be no barrier for a HC determined to say black means white.

  10. OldOzzie

    John Comnenus
    #3463386, posted on May 25, 2020 at 10:28 am

    Why doesn’t Tourism Australia or the Qld Chamber of Commerce organise a class action against the Qld Govt? Announcing a class action of QLD tourism operators would probably see the Qld Govt fold fairly quickly.

    It would be pretty easy to quantify domestic tourism revenue per month and come up with a very credible claim against the QLD Govt that runs into billions.

    John Comnenus

    Best comment from Chris Mitchell The Australian Article – Playing with political fire: border closure could burn Premier at polls sums it all up

    Grahame Oft.censored.
    2 HOURS AGO
    Tourism Queensland – welcome one day, get stuffed the next.

  11. Dianeh

    Fruit fly check point at Yamba, SA, on NSW/SA border- on the Sturt highway.

    Your car is searched and if you have any fruit it is a $375 fine.

    Our until last year, you could just hand over the fruit without a fine. Now you are fined for having fruit in the car.

  12. OldOzzie

    John Comnenus from The Australian in response to your question above

    Coronavirus: Queensland may be on a constitutional borderline

    GEORGE WILLIAMS

    The heated debate over the closure of state borders raises significant questions about Australia’s Constitution. When our nation was created in 1901 it was with an unequivocal commitment to free movement and free trade throughout the federation. This is expressed in section 92 of the Constitution, which states that “trade, commerce, and intercourse among the states … shall be absolutely free”.

    It might be thought that these emphatic words do not permit the closing of a state border, but is it so straightforward? Like other parts of the Constitution, the text of section 92 does not always mean what it says. In this case, the difficulties of interpretation are enormous.

    The spare words of section 92 have caused grief for generations of lawyers. Some have been driven to hyperbole, with one commentator describing the section as giving rise to “gothic horrors and theological complexities”.

    Former chief justice Sir John Latham spent much of his 16 years on the High Court grappling with the text with limited success. When he retired from the court in 1952, he remarked: “When I die, section 92 will be found written on my heart.”

    The difficulty with section 92 is that it cannot be read literally. Trade and movement between the states can never be “absolutely free”. Necessity dictates some restrictions.

    Dangerous goods and illegal drugs need to be banned, state and federal taxes need to be paid to support government and communities need to be protected from injury. If this were not the case, section 92 would dictate that violent pornography and apples infected with fruit fly could be sent between states without restriction.

    The High Court has spilt more ink on making sense of section 92 than any other clause in the Constitution. After 140 inconclusive cases, the court finally settled on an approach in 1988 in the famous case of Cole v Whitfield. The judges spoke with one voice in setting aside earlier attempts. They held that section 92 is breached when a law discriminates against interstate trade and commerce to protect local industries, such as a Tasmanian law imposing additional taxes on mainland goods or a South Australian law requiring consumers to buy locally made products.

    This provides a line of attack for businesses affected by border closures. An interstate tourism operator may be discriminated against when people are prevented from travelling interstate. Border closures also favour local tourism operators over interstate competitors. Queenslanders, for example, can only purchase holidays within their state, and so NSW and other operators are unable to compete for their business.

    A second line of attack stems from the protection in section 92 of interstate “intercourse”. This recognises a personal freedom, in the words of the High Court, “to pass to and fro among the states without burden, hindrance or restriction”.

    It ensures that people can cross state borders to visit a family member or indeed for any other reason they wish.

    But the entitlement of businesses and citizens to cross state borders under section 92 is not absolute. The High Court has recognised that trade, commerce and personal movement can be still stopped at the border to solve a pressing social problem. This might be to protect the environment, prevent the spread of a noxious pest such as cane toads or to quarantine an area to prevent infection.

    These exceptions must be pursued in a way that is a reasonable and appropriate means of addressing the problem. The law cannot go beyond what is reasonably required.

    State border closures were likely valid as an exception to section 92 at the height of Australia’s response to the coronavirus. They can be seen as a proportionate response to the severity of the threat facing the nation, and the need to prevent travel and movement. It is equally clear that the closures cannot be maintained when they are no longer reasonably needed to protect state communities. As the threat of infection through internal travel wanes, the need for border closures will diminish until they become unconstitutional.

    It may not be long before border closures are invalid, if indeed this point has not already been reached.

    The Constitution makes free trade and free movement within Australia an imperative that at some point will be reasserted. The timing depends on the medical evidence, which remains contested. Federal Deputy Chief Medical Officer Paul Kelly has said there is no medical reason for Australians to be stopped from travelling interstate, while Queensland’s Chief Health Officer, Jeannette Young, has backed closures to protect Queenslanders from interstate infection.

    The only way to resolve this uncertainty is for border closures to be tested in the High Court. It would not be surprising to see a challenge filed by a tourism operator, a disgruntled individual, or a state such as NSW that has roundly criticised others for not opening up. Time will tell whether the debate moves beyond a slanging match between premiers into the nation’s highest court.

    George Williams is dean of law at the University of New South Wales.

  13. twostix

    But be careful coming against QLD hard on this, federalists. The political elite in this country have hated federation since it began. They unashamedly say they want a UK style all-powerful central government and regional councils that are under its control. Don’t let them use the response to QLD stupidly creating a border checkpoint as another excuse to move closer to that.

  14. Ziff Chips

    Section 92 is about prohibiting protectionism between states, essentially forming a free trade area, not about states limiting the movement of goods etc for other reasons (such as health reasons). You’re an economist – not a lawyer. You’ve written a lot of really poorly researched stuff about the Australian Constitution recently, a lot of it informed by what you’ve seen about the US Constitution on American TV I assume. Your crusade against the National Cabinet was also questionable. States can engage in intergovernmental forums with the Commonwealth, there is no limitation on this. They can jointly decide on a course of action and are then responsible to their own constituents in implementing that. Just as the Australian Government participates in a range of international fora without the need for a treaty or for the Australian Parliament to authorise it.

  15. Natural Instinct

    Section 92 is the essence (spare and stark) of a unified Australian country,
    rather than a collection of British colonies.

  16. Mother Lode

    I believe the term used by American Progressives is ‘living document’.

    It more or less exploits the idea of life developing and adapting so the text’s meaning when it was written (or any time since) is not binding on the present.

    It means whatever they want it to mean.

    You will also notice that these new interpretations never seem to restrict the activities of those who appeal to the ‘living document’ theory. In fact they always validate them.

  17. Old School Conservative

    “IT’S THE VIBE OF IT. IT’S THE CONSTITUTION. IT’S MABO. IT’S JUSTICE. IT’S LAW. IT’S THE VIBE AND AH, NO THAT’S IT. IT’S THE VIBE. I REST MY CASE.”

  18. The High Court is so full of shit though.

    Section 92 is unambiguous.

    SHALL BE ABSOLUTELY FREE

    There is only one meaning. Jurisprudence to say otherwise is fraudulent pedantry.

  19. Tony

    COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 92
    Trade within the Commonwealth to be free

    On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

    But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

    COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 117
    Rights of residents in States
    A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

    I’m not a lawyer, but a lay reading suggests Section 92 would suggest trade cannot be inhibited. Section 117 would suggest States can’t discriminate against subjects of other states. To me that seems like as long as everyone travelling across a State border (whether resident or not) is given the same quarantine instructions etc.

    In short, my (completely uneducated, non-expert) reading of the Constitution is that you can’t really stop trade. You can close borders as long as every Australian is treated identically.

  20. NoFixedAddress

    twostix
    #3463401, posted on May 25, 2020 at 10:45 am

    But be careful coming against QLD hard on this, federalists. The political elite in this country have hated federation since it began. They unashamedly say they want a UK style all-powerful central government and regional councils that are under its control. Don’t let them use the response to QLD stupidly creating a border checkpoint as another excuse to move closer to that.

    So, not much different to what we already have then.

  21. John Brumble

    Completely agree with the free-trade position on s92, but I’m also in agreement with Twostix. In fact, I’d take it a step further.
    While there are a lot of very good reasons to open the borders, the only reason this is being talked about in the media is because all of the “important” people want to plan their end of year holidays. Perfectly happy to stop the “plebs” from going to the local beach, the luvvies are now starting to be affected themselves; and we can’t have that.

  22. Terry

    The constitution is absolutely intended to be a prohibition on the behaviour of government

    Of course wannabe Totalitarians view limits to their authority with contempt. They are the problem, not the constitution.

    Perhaps we should include in the constitution, by referendum of course, a preamble. Not the racist one favoured by our agitating Marxists, but one that says: “For the avoidance of doubt, where ANY ambiguity exists, favour MUST be granted to the private citizen and NOT governments and their instruments”.

  23. Mother Lode
    #3463418, posted on May 25, 2020 at 11:00 am

    I believe the term used by American Progressives is ‘living document’.

    It more or less exploits the idea of life developing and adapting so the text’s meaning when it was written (or any time since) is not binding on the present.

    These people (knowingly or not) confuse the constitution with legislated law. When I’m involved in discussions about this with a ‘progressive’, I explain to them that the constitution is like the foundations of a building, and legislated law is like the building upon that foundation.
    You can make whatever changes to the building you like. Add a room, add another floor, knock out a wall etc but all of it must be supported by the foundation. Make a change the foundation can’t support, the whole thing could collapse.
    Making changes to the foundation is possible but much much more difficult.

    Legislated laws are living documents, constitutions are not.

  24. Rob MW

    If the authorities want to tackle issues such as violent pornography and fruit fly they have to come up with a solution that does not violate the Constitution ……………..”

    Of course the State where the ‘violent pornography’ and/or the ‘fruit fly’ originated could be policed within that State border, however, Constitution fuckers never thought of that.

    Sinc – the fruit fly scenario might not work because most exclusion zones are within State borders – Murrumbidgee Irrigation Area (MIA) e.g.

    Probably the best example of how s92 of the Constitution got stuffed is described in the ‘Neat’ HCA decision where the Justices helped themselves to not only not knowing the difference between biscuit/bread wheat and specialty noodle wheat (Durum Wheat) but also that the AWB’s single desk export monopoly did not apply to trading between the States.

    Neat Domestic Trading vs AWB – CLR 277 – (2003).

  25. Sinclair Davidson

    I don’t really care about fruit flies – the author of the Australian op-ed brought them up as an example.

  26. Tim Neilson

    Mother Lode
    #3463418, posted on May 25, 2020 at 11:00 am

    In the USA they needed the 14th Amendment to abolish slavery.

    But recently the Supreme Court found that the “right” to gay marriage was in there all along.
    As has been pointed out, that means that pre-Civil War a gay slave wasn’t entitled to be free but was (had he only known it) entitled to a gay wedding.

  27. Tim Neilson

    Dangerous goods and illegal drugs need to be banned,
    Well, that depends on who decides what’s “dangerous” and which drugs are made illegal. But in any case what does that have to do with border crossings? Just make it illegal to possess them anywhere anyhow in the state, then there’s no s.92 issue.

    state and federal taxes need to be paid to support government
    Expressed like that it sounds like the Constitution imposes serfdom rather than protecting citizenship. But OK – but still, once we assume that s.92 bans State imposed tariffs etc., what does tax have to do with any further interpretational issues about s.92?

    and communities need to be protected from injury.
    Well, yes, but why does that authorise any restriction at State borders beyond mere enforcement of laws of general application throughout the State?

  28. John64

    Childhood summer holiday memories of crossing the Murray River between Corryong and Khancoban and the inspectors that operated from their hut about 500m on the Victorian side of the border.

    The more zealous of the Fruit Fly G3stapo would insist that the car boot was emptied and every Esky and polystyrene cooler was opened for inspection just in case you were trying to smuggle an apple or an orange across the border. Much to my late Father’s barely disguised annoyance on days of around 40 deg C (which seemed to be on most occasions).

  29. egg_

    the only reason this is being talked about in the media is because all of the “important” people want to plan their end of year holidays.

    California still in lockdown because of “big Politicians” residing there.
    /The Rubin Report

  30. Rob MW

    I don’t really care about fruit flies –

    That makes two of us 🙂 There’re just pricks in a country full of pricks !

  31. mundi

    Does section 92 bind the states?

    Doesn’t it just mean the feds can’t control borders.

    The states can do whatever the he’ll they want.

  32. Leo G

    Now I don’t want to be unsympathetic to the problems of violent pornography and fruit flies but allowing them to cross a state border is precisely what the Constitution mandates.

    Isn’t the problem one of lack of clarity in the opening modifying phrase- particularly in assuming a grammatically improper time-specifying sense of the the preposition “on”?
    If that phrase is taken to refer to the inception date, then “absolutely free” lacks a proper reference. Accordingly, why shouldn’t the opening sentence of s92 be assumed to have the more specific application?

    On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free (of any duty on that trade, commerce, and intercourse among the States).

  33. John A

    John Comnenus #3463386, posted on May 25, 2020 at 10:28 am

    Why doesn’t Tourism Australia or the Qld Chamber of Commerce organise a class action against the Qld Govt? Announcing a class action of QLD tourism operators would probably see the Qld Govt fold fairly quickly.

    If all the big-name law firms have been captured by leftist politics, where are the litigants going to start?

  34. Tim Neilson

    Does section 92 bind the states?

    Yes it does. The Commonwealth Constitution is mainly about the Commonwealth government but does also deal with some matters relevant to the relationships between the States. Section 92 is one of those matters.

  35. Tom

    Why doesn’t Tourism Australia or the Qld Chamber of Commerce organise a class action against the Qld Govt? Announcing a class action of QLD tourism operators would probably see the Qld Govt fold fairly quickly.

    Yes, John C. It’s time for a test case to bring into line the entire political class, who think the Australian Constitution means whatever they want it to mean, instead of what is written — including George Williams, the smartarse knowall leftist academic, from whom Professor Davidson quotes.

    I think the Australian High Court, despite its shortcomings, is very much in the mood to start reining in some big heads in academia and in Canberra, not to mention the lickers of their balls in the media.

  36. Natural Instinct

    The Australian Constitution is all about what limited powers the colonies were prepared to give up to the Parliament of the Commonwealth – not the other way around.
    .
    To be clear:

    106. Saving of Constitutions
    The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
    107. Saving of power of State Parliaments
    Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
    108. Saving of State laws
    Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

    But once committed the colonies could not go back:
    .

    109. Inconsistency of laws
    When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

  37. DrBeauGan

    On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free (of any duty on that trade, commerce, and intercourse among the States).

    Quite so. The word free does not grant you liberty, it means you won’t be charged money.

  38. DrBeauGan

    Quite so. The word free does not grant you liberty, it means you won’t be charged money.

    As in: It’s not a free country. It’s a bloody expensive one.

  39. Peter Greagg

    I except that my comment is just a tangent to the issue of this post.
    But, and IMO it is a very big but, there are far too many High Court judgements where they just make stuff up.
    For example, Eddie Marbo wasn’t even the same race as most of the mainland aboriginies, yet the Court made specific finding about Eddie and where his family had lived for a few generations, and then applied the principles they derived from Eddie’s situation, and then said they must apply those priniciples to the rest of Australia.

    The so-called implied right of political communication was just made up out of thin air.

    And so on.

    Quadrant contributor James Allan is the most sensible writter on the Constition and the High Court that I have found.

  40. Squirrel

    The lockdown cheer squad are doubtless hoping that the last of the border closures will be lifted the day before the High Court gives its decision on Clive Palmer’s application – but the decision will still be relevant for all the re-closures following all those extra “waves” of infection which the ABC and others assure us are on the way.

  41. Entropy

    Quite so. The word free does not grant you liberty, it means you won’t be charged money.

    Yes. The article of course was written by George Williams, who I am pretty sure is employed by ThecAustralian as click gait, only marginally less appalling than the Bittered Savv. The person so gormless and all round hopeless he could not beat Malcolm Turnbull in an eastern suburbs election.

  42. Hay Stockard

    The Establishment is not our friend. The soi-disant “Elites”:despise anyone not belonging to their ghastly little piece of Society.
    Why think this High Court is any different?

  43. amortiser

    As Cats know I think Australian elites treat the Constitution with contempt – a set of guidelines, as opposed to absolute prohibitions on behaviour.

    Sinc gives the elites too much credit. Far from the Constitution being a set of guidelines, they regard it as an administrative inconvenience.

  44. rickw

    We need a better Constitution.

    Copy and paste the USA’s.

    Australia is in a mess because there’s no right to free speech and no hint of any ability to defend it.

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