Australian commerce clause
 | It has been suggested that this article be merged into Section 51(i) of the Constitution of Australia. (Discuss) Proposed since March 2016. |
The Australian constitution discusses the commerce clause in two separate chapters.
- In sec 51(1) the commonwealth has power to make laws on trade and commerce with foreign nations and with the states.
- The commerce clause is again discussed under the finance chapter, where section 92 deals with the free flow of commerce. It says in its first paragraph that trade and commerce will be absolutely free in Australia, but the second paragraph discusses the revenue to be collected for the interstate commerce immediately before the imposition of the uniform duties of customs. In a landmark decision in Cole v Whitfield (1988) it was held that freedom means economic freedom here and not personal right to freedom.
The Australian commerce clause is similar to the American Commerce clause under Sec 8(1), Art I. But, unlike the American constitution, the Australian commerce clause is clearer. Under sec 98, it says the commerce clause includes navigation as well. Under sec 99 the constitution states that the Commonwealth cannot prohibit any state or residents of any state from using state water for irrigation purposes. The constitution not only prohibits the commonwealth, but also the states from showing discrimination against any state or authority. In sec. 102 no state can show preference to any state or any authority for the usage of the railways, which is state property, over other states if the same discrimination is undue. There are two exceptions to this discrimination clause:
- 1. under sec 102 if the Interstate Commission certifies the discrimination as proper for the maintenance and development of the state property;
- 2. under Sec. 104, the states can levy tax on the carriage of goods by railways if the rate is similar to the internal carriage rates and if the Inter State commission certifies the same.
Finally, the Australian constitution creates one Interstate commission under sec 101 for resolving disputes regarding the free flow of commerce. The members are appointed by the Governor General.
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