page_title: Section 92 of the Constitution of Australia
section_title: Background in the Constitutional Conventions
hierarchical_section_title: Section 92 of the Constitution of Australia / Background in the Constitutional Conventions
caption_attribution_description: English: A wood engraving of Sir en:Henry Parkes moving the first resolution at the federation conference in Melbourne.
context_page_description: Section 92 of the Constitution of Australia, as far as is still relevant today is:
  ... trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
  This provision has been the cornerstone of significant Australian constitutional jurisprudence, which has also been quite complex. As the High Court of Australia observed in Cole v Whitfield:
  20. The creation of a limitation where none was expressed and where no words of limitation were acceptable was a task which, having regard to the diverse and changing nature of inter-State trade, commerce and intercourse, was likely to produce a variety of propositions. And so it has. Sir Robert Garran contemplated that a student of the first fifty years of case law on s.92 might understandably "close his notebook, sellhis law books, and resolve to take up some easy study, like nuclear physics or higher mathematics." ... Some thirty years on, the student who is confronted with the heightened confusion arising from the additional case law ending with Miller v. TCN Channel Nine would be even more encouraged to despair of identifying the effect of the constitutional guarantee.
context_section_description: Before the beginning of the first Constitutional Convention in Sydney in 1891, Sir Henry Parkes originally proposed the following resolution:
  That the trade and intercourse between the Federated Colonies, whether by means of land carriage or coastal navigation, shall be free from the payment of Customs Duties, and from all restrictions whatsoever, except from such regulations as may be necessary for the conduct of business.
  At the Convention itself, the wording of the resolution that was presented was altered to read:
  That the trade and intercourse between the Federated Colonies, whether by means of land carriage or coastal navigation, shall be absolutely free.
  As Parkes said at that Convention, in explaining the nature of his proposal:
  I seek to define what seems to me an absolutely necessary condition of anything like perfect federation, that is, that Australia, as Australia, shall be free — free on the borders, free everywhere — in its trade and intercourse between its own people; that there shall be no impediment of any kind — that there shall be no barrier of any kind between one section of the Australian people and another; but, that the trade and the general communication of these people shall flow on from one end of the continent to the other, with no one to stay its progress or call it to account.
  While the resolution carried, no action was taken on the Convention's proposals because of political changes in New South Wales. The matter was revisited at the 1897–1898 Convention's first session in Adelaide, where it was promoted by Edmund Barton and adopted as one of the "principal conditions of federation" that "the trade and intercourse between the Federated Colonies, whether by land or sea, shall be absolutely free." In the debates, Alfred Deakin was concerned whether this, together with the proposed Commonwealth power to regulate interstate trade and commerce, would deprive the States of all power to regulate trade even within their own borders, while Isaac Isaacs maintained that the proposal only dealt with the question of border duties between the States.
  At the Sydney session, Barton intended to amend the proposal, by declaring that "trade and intercourse throughout the Commonwealth is not to be restricted or interfered with by any taxes, charges or imposts" but no decision was taken at that time.
  At the Melbourne session, Isaac Isaacs took issue with this amendment, declaring that such language would extend beyond interstate trade into intrastate trade, as it was both ambiguous and too general. Other speakers, such as John Downer, felt that such was not the case. An amendment was passed, substituting "between the States" for "throughout the Commonwealth." Towards the end of the session, that phrase was changed to read "among the States," but not without intense debate about the nature of the clause. Barton responded to the criticism thus:
  I do not know why intercolonial free-trade, if it is essential to federation, should be objected to when it is provided for in the Constitution in so many words.
  The final wording that appeared as s. 92 was adopted towards the end of the Melbourne session. "It was typical of the situation that Sir George Reid, the New South Wales Premier famous for the equivocations on both federation and free trade, should have praised the section as 'a little bit of layman's language.' He was probably the last person to give it any praise."
caption: A wood engraving of Sir Henry Parkes moving the first resolution at the federation conference in Melbourne, 1 March 1890
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