The political implications of interstate transportation: With reference to section 92 of the Commonwealth Constitution

Bassett, P. G. (1971). The political implications of interstate transportation: With reference to section 92 of the Commonwealth Constitution M.A. Thesis, School of Political Science and International Studies, The University of Queensland.

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Author Bassett, P. G.
Thesis Title The political implications of interstate transportation: With reference to section 92 of the Commonwealth Constitution
School, Centre or Institute School of Political Science and International Studies
Institution The University of Queensland
Publication date 1971
Thesis type M.A. Thesis
Open Access Status File (Publisher version)
Total pages 238
Language eng
Subjects 1606 Political Science
350400 Transportation
Formatted abstract
The background historical and theoretical
This chapter is an attempt to ascertain the original meaning of section 92 both from statements made by delegates to the national conventions and from the historical circumstances of the Constitution's appearance. I conclude that, as far as can be determined, section 92 was designed to preserve 'free-trade' as an economic concept within a nation which, after 1901, was to present a united and 'protectionist' front to the rest of the world.

Judicial interpretation - the contribution of the courts
Because section 92 fails to make clear the precise limits of its effect, an unusually heavy burden has been placed on the courts in applying the section. This chapter examines the extent to which the courts have widened the guarantee of freedom beyond that envisaged in 1901. I conclude that the courts have refused to confine themselves to a narrow free-trade/protection interpretation and have thereby considerably enlarged the section's scope. Because a logical extension of this approach would lead to chaos (absolute freedom in an unqualified sense would oust all governmental control) the artificial concept of 'regulation' has been introduced to permit limited controls in certain areas.

The legislation and its purpose
Since the application of section 92 has obliged courts to take into account (whether expressly or otherwise) certain non-legal considerations, it is of relevance to examine the legislation which is the subject of judicial decision. One noteworthy feature of this chapter is the amount of legislation introduced by Labor governments which has been challenged in the courts. The point is made that decisions may reflect to some extent the basic socio-economic attitudes of individual judges.

Extra-legal motivation in the courts

Here the point made in the previous chapter is developed and investigated. A large number of judgments are examined and reduced to histogram form for easy comparison. The basis of scaling is the degree to which individual judges have been prepared to extend the freedom guaranteed by section 92. A significant finding in this chapter is the consistency of approach by many judges, either in favour of a broad interpretation of the section (and hence limited governmental control) or in favour of a narrow interpretation and therefore greater governmental control. A biographical analysis of the judges tends to confirm my belief that the decisions in section 92 transport cases reflect to some extent socio-economic attitudes.

Public action and government response

This chapter is a survey of the general political atmosphere in which Australian interstate transport has developed. It highlights the conflict between governmental undertakings and the private sector; the preservation of State powers in the face of federal expansion; and the doctrinal clash of socialism and private ownership.
Keyword Transportation -- Law and legislation
Interstate commerce -- Australia
Section 92 of the Commonwealth Constitution
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