addressed to other persons besides governments, that is, private citizens and
corporations?
Faced with this provision, the High Court of Australia had two options. First,
it could have filled the gap by supplementing for the omission of the
legislature. This in fact was what it has done throughout its history.
Second, it could have treated these omissions as fatal defects in s92 and
refused to interpret it. Justification for this comes from a combination of two
connected principles. One concerns the four rules that must be complied with
to make an implied extension since s92 falls well outside their ambit. The other
is that the Constitution
of the Commonwealth of Australia contains a
moderately strict separation of powers, and to fill a gap as large as the one in
s92 is a legislative task well beyond both the jurisdiction and the competence
of the High Court.
In fact, the High Court has interpreted s92, seemingly unaware of the problems
in doing so. Current interpretation of the provision was laid down by the High
Court in the landmark case Cole v Whitfield.
274
There the High Court
responded to these issues in the following way. First, the court just
supplemented the omission of the legislature. In doing this it interpreted
“absolutely free” to mean free from burdens both fiscal and non fiscal.
Second, the court did not acknowledge the other issue in s92, namely failure to
specify from whose interference interstate trade and commerce shall be free. In
the judgment, though, the court clearly indicated that s92 protected from
legislative action by both state governments and the Commonwealth
government, but remained silent as to whether s92 (i) protected against judicial
and executive action by these governments and (ii) protected against actions
by individuals, corporations and foreign governments.
Ancillary Powers
Almost any grant of express power is taken by courts to confer by implication
an ancillary power. This is expressed in a Latin maxim,
quando lex aliquid
concedit, concedere videtur et illud sine quo res ipsa valere non potest. This
says that when law confers an express grant of a power it also implicitly
confers as much additional power as is reasonably necessary to make the
express grant of power effective.
275
This maxim reveals not only the rule but
its rationale. It is a principle of law because it is foremost a rule of necessity.
276
274
Cole v Whitfield (1988) 165 CLR 360, 78 ALR 42
275
D'Emden v Pedder (1904) 1 CLR 91, 109 per Griffith CJ
276
D'Emden v Pedder
(1904) 1 CLR 91, 110 per Griffith CJ, and see Grannall v
Marrickville Margarine
(1955) 93 CLR 55, 77 per Dixon CJ, McTiernan, Webb and
Kitto JJ
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