The High Court of Australia & S92 of the Australian Constitution

Section 92 of the Australian Constitution guarantees the free movement of goods among the States of the Commonwealth of Australia. Twenty years ago, in Cole v Whitfield, the High Court of Australia resolved to develop a definitive test for s 92. This book is a critique of the Cole v Whitfield test and argues that it is inconsistent with the federal purpose of s 92 to create and preserve a common market for Australia.

For his contribution to the ongoing evolution of s 92 of the Australian Constitution, Dr Gonzalo Villalta Puig deserves our thanks and praise.
The Honourable Justice Michael Kirby AC CMG of the High Court of Australia

“Dr Gonzalo Villalta Puig’s criticisms of the current interpretation of s 92 of the Australian Constitution are clear and incisive, and his positive thesis is thoughtful and provocative. This book will provide invaluable assistance to students and practitioners seeking to understand and assess the ongoing development of the law in this area and may also prove influential in the development of the law by the courts.”
Dr David Bennett AC QC, Solicitor-General of the Commonwealth of Australia

“Much has been written about s 92 of the Australian Constitution but little understood. This book is remarkable as an exposition that is as clear as it is comprehensive, whether dealing with the tortuous history of the section, its tangled economics or its troubled judicial exegesis.”
Professor Greg Craven, Vice-Chancellor of the Australian Catholic University

“The greatest compliment I can pay to this book is that it will be an invaluable resource to the Justices of the High Court of Australia the next time they have to deal with a major case on s 92 of the Australian Constitution.”
Commissioner Gareth Grainger, Australian Industrial Relations Commission

“I congratulate Dr Gonzalo Villalta Puig most warmly on his lucid analysis of the case law as it developed in the 20th century in one of the most complex areas of disputation in the High Court of Australia.”
Professor the Hon David Malcolm AC QC KCSJ, University of Notre Dame Australia
(former Chief Justice of the Supreme Court of Western Australia)

“The timing of this book is prescient, given the recent review of s 92 by the High Court in Betfair Pty Ltd v Western Australia. Arguably that decision moves in the direction of some of Dr Villalta Puig’s main arguments. The book canvasses the extensive literature on s 92 in an interesting and stimulating way.”
Mr Stephen McLeish SC, Victorian Bar

Table of contents

1 Introduction
2 The Scope and Effect of Section 92
3 The Interpretative History of Section 92
4 The Cole v Whitfield Test for Section 92
5 A Critique of the Cole v Whitfield Invalidity Test
6 A Critique of the Cole v Whitfield Saving Test
7 Conclusion
8 Postscript
Appendix 1: The Commonwealth of Australia Constitution Act (The Constitution)
Appendix 2: Cole v Whitfield (1988) 165 CLR 360