Cole v Whitfield

The prohibition on discriminatory protectionism is unchanged, but the justification stage has since been developed: where a burden is found, the analysis asks whether the law is reasonably necessary for a legitimate non-protectionist purpose, and a majority in Palmer applied structured proportionality to that question. Cole states the test; it does not complete the modern analysis.

AND ONE JUSTICE QUESTIONED THE PROTECTIONIST LIMITATION ITSELF, which is the core of what Cole decided rather than the justification stage. EDELMAN J at [255] declines to resolve it -- "[i]n the absence of any challenge to the protectionist element in the test for the trade and commerce aspect, this issue need not be finally resolved" -- and then makes four observations about "an assumption which treats the trade and commerce aspect, unlike the intercourse aspect, as concerned only with discrimination in a 'protectionist sense'".

THE FIRST TWO ARE THE ONES TO KNOW. At [256]: "whilst free trade 'commonly signified' an absence of protectionism, that was not, and is not, its only signification. Free trade also signifies freedom from any kind of discrimination in trade and commerce", a goal his Honour finds enshrined also in ss 99 and 102 of the Constitution. At [257] he puts the criticism at its highest: "the only discrimination that was alleged in Cole v Whitfield was discrimination in a protectionist sense", and the reasoning that the test "must be limited only to protectionist discrimination may have been a formal fallacy based on the fact that most observed instances of discrimination, and most of the discussion at the Convention Debates, involved protectionism". He adds that this case's view that the pre-1900 United States negative commerce clause cases were not of "any assistance" is "a view that has since been quietly jettisoned".

HOW MUCH WEIGHT TO GIVE IT: these are the reasons of one Justice of a bench of five (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ), offered expressly without deciding the point because no party challenged it. The protectionist limitation is the law. What the passage gives a student is the argument against it, from the bench, with its two best supports -- the composite expression "trade, commerce, and intercourse among the States", and the incongruity of testing the intercourse limb for discrimination generally while confining the trade limb to protectionism.

AND ONE THING TO CARRY FORWARD about the justification stage described above. Structured proportionality has been in retreat since Palmer, but in a different doctrinal setting: these cases are about the implied freedom of political communication, not s 92. In Babet v Commonwealth of Australia [2025] HCA 21 at [49] Gageler CJ and Jagot J say that debate about how to test an infringement "says nothing about the legitimacy of the principle"; in Ravbar v Commonwealth of Australia [2025] HCA 25 at [212]-[225] EDELMAN J sets the shift out under his own heading, "Structured proportionality and its sudden decline"; and in Hopper v Victoria [2026] HCA 11 at [86] his Honour holds that "[o]n any view, the first question in this structure is redundant", recording at [87] "the antipathy towards any test based upon structured proportionality now expressed by a majority of this Court". So the retreat is real but it is reported by one Justice and decided in another doctrine; whether it carries across to the s 92 justification stage is an inference, not a holding, and the High Court has not said so. So state the protectionist discrimination test from this case, and do not assume the justification stage must be worked through as three named steps.