Gratwick V Johnson: Analysis Of A Landmark Essay On Interstate Commerce In Australia.

Background on Section 92 of the Australian Constitution

Discuss about the Law in Context Gratwick v Johnson.

The supreme law in Australia is its constitution through which the Commonwealth government operates[1]. Section 92 of the Constitution of Australia, is relevant till date and dictates the commerce, intercourse and trade between the States[2]. This section states that such commerce, intercourse and trade taking place between the States should be free absolutely, irrespective of the fact that it is carried on by means of ocean navigation or internal carriage[3]. A number of landmark rulings have been passed which relate to this very section of the Australian Constitution. In the following parts, one of such rulings of Gratwick v Johnson[4] has been analyzed. The rationale behind analyzing this case is to understand the reasons for this particular verdict. This would help in drawing the conclusion regarding how different or similar, the decision taken in 1945 would be, in the present context.

As per Australian Constitution’s section 92, when a uniform duty of customs is imposed upon a transaction, the intercourse, trade and commerce, than such a transaction occurring between the states, has to be free in absolute. Starke J in Gratwick v Johnson stated that the individuals living in Australia were free to pass from and to amongst the state with any restrictions, hindrances or burden. This section has been the cornerstone of major jurisprudence of the constitution of Australia, and at the same time, has been quite complex[5].

In Gratwick v Johnson, the Australian High Court observed that intercourse in this section, was the ability to pass from and to, within the states, without any obstruction or barriers. In this case, Dulcie Johnson, the respondent, was charged with the contravention of the Restriction of Interstate Passenger Transport Order’s[6] provision, which was drawn under the National Security (Land Transport) Regulations, Statutory Rules 1944 No. 49[7]. These rules were made under the National Security Act 1939-1943[8]. It was charged that the respondent travelled through rail even when the Order specifically provided that no individual could travel by rail, without explicit permission, between a State in Commonwealth to some other State. It was clearly established that Johnson had travelled without a permit, from New South Wales to Western Australia, in order to visit her fiancé. This charge was dismissed due to the infringement the Order as per the Constitution’s section 92[9].

While giving this decision, the judges considered the liberty of the individuals in context of the interest of the state, in terms of security. It was the responsibility of the Governor-General to make such regulations, which were necessary for making the requisite regulations for securing the defense of the Commonwealth, along with the territories of Commonwealth, for the public safety. This had to be done for prescribing the required matter, as convenient or necessary, for effectual prosecution of any war, in which His Majesty may be engaged. This power was provided through section 5 of the National Security Act 1939-1943[10]. The Regulations drafted under this act, through Regulation 4 provided that the objective of these was to protect the interest of defense and the control of rail and road transport by the Commonwealth, for the purpose as is specified[11]. The Regulations 7 and 8 provided similar powers to different authorities[12].

The Gratwick v Johnson case

While making the appeal, the maxim of salus populi was also quoted by the counsel for appellant. This maxim could abrogate the law which belongs to the world of revolution and war; however, it could not do the same for law. This condition was not present in the Australian circumstances; hence, this maxim was not applicable. Rejecting this maxim, the Court proceeded towards the challenge of the Order being inconsistent with the Constitution’s section 92. Section 92 provided that the individual’s had the freedom to travel between the States as and when they please. The Order however stated that individuals were barred from travelling between the States, unless and until, the individuals had the permission of an officer of the Commonwealth. Through this Order, it becomes explicit to take the official permission so as to make transit, as well as, access for individuals between the States. Hence, the Order enforces a barrier on such access and transit, which is different from other travel, just because it takes place between states. Hence, the order was a direct negation of the quoted section of constitution and was directed against the intercourse[13].

During the proceedings of this case, Starke J. held that if the Order was continued or was allowed to prevail of section 92, it would mean that no person could travel by a commercial vehicle or through rail without a permit, inter-state. It was also contended that the constitutional power to make the law had to be respected. But, Starke J. highlighted that the constitutional powers were subject to the constitution; hence, it could not go beyond what was covered in the constitution. He stated that it was immaterial that the purpose of this legislation was the safety of the public and the defense of the Commonwealth, as it beat the purpose of the rights which were protected, as well as, guaranteed through the provisions of section 92 of the Australian Constitution[14].

In the views of Dixon J. it was a long shot to suggest that the imperative demands of national safety make it necessary to impose a general restriction over the operation of travelling to any part of the continent, without a specific permission in this regard, through the public conveyance, just because the journey starts from one state and ends in another. He acknowledged the necessity of such impositions in case of law, but also stated that section 92 did not relate to such consequences which were factual in nature and which ensued from definite conduct of war[15]. He stated that such things are done under the government’s authority but was not opposed to this section. McTiernan J. highlighted that clause 3 (a) of the Restriction of Interstate Passenger Transport Order restrained the freedom of intercourse between the states[16]. As view of the chair was unified in this matter, the appeal was dismissed in interest of section 92[17].

Decision and rationale of the Gratwick v Johnson case

The considerations undertaken by the bench of judges of the High Court of Australia, struck a unique balance between the liberty which was available to the individuals, and the interest of the state. In order to provide the individuals, the freedom to carry on their businesses, in form of intercourse, trade and commerce, this decision was given. Moreover, the decision also balanced the national security and interest of the state, as it recognized that there was no war situation, and hence, a restriction through the Order was not deemed to be necessary[18].

But, the circumstances have changed from the time the decision of Gratwick v Johnson was given in 1945. Along with this, there have been a number of new cases, which have presented a different precedent for such cases. The prime example of such cases is the case of Cole v Whitfield[19]. The High Court in this case stated that the decision of Gratwick v Johnson did not infer that each and every form of intercourse had to be left without regulations or restrictions, so as to suit the guarantee of freedom. Hence, even though the private movement across the border could not be impeded in general, it would still be legitimate to restrict certain aspects of it; for instance, the use of highway by a pedestrian for crossing, or for authorizing the arrest of an offender belonging to one state, at such a time when the person was moving to another state[20]. In Cole v Whitfield, it was held that the interstate trade was not absolutely free and was replaced with the economic idea of free trade[21]. And so, with Cole v Whitfield, the view given in Gratwick v Johnson has changed[22].

Mason CJ in Cunliffe and Another v. The Commonwealth of Australia[23] provided that the guarantee provided in section 92 was not absolute. So, a law which imposes a restriction or burden over movement across the border is invalid. However, a law which presents a restriction on interstate intercourse or an incident burden on the same, during the course of regulation the particular matter, would not fail where the restriction or burden was held to be reasonable. Furthermore, it was important for fulfilling the objective of preserving an order in the society, through a system the democracy and of representative government. This was in addition to such a restriction or such a burden, which was not disproportionate to an end. Hence, it comes down to weighing the competing interest of the public[24].

Impact and evolution of the Gratwick v Johnson case

A notion has been presented that the right to freedom of movement is generally implied through the constitution. Murphy J in Miller v TCN Channel Nine Pty Ltd[25] implied this that the freedom of movement amid the states was implied in the Constitution, whether it was in or between any parts of the Commonwealth. Though, the same view has been disregarded by Professors David Hume and George Williams stating that it lacks the clarity on textual basis relating to the freedom and the incidents which are covered under the constitutionally prescribed system of federalism, which could support[26]. Further, they also believed that Constitution’s federalism was not proposed to shield the individuals. In the present age, though there may not be an immediate war, but the situations like ISIS poses a threat on any national security. And so, for safeguarding the security of the nationals of Australia, a change from this decision may be undertaken

However, there are certain things, which could lead to the repetition of the view adopted under Gratwick v Johnson in 1945, at the present time. In 1945, the country was not facing any war issue, as a result of which, the Order was held to be invalid. In the present times too, Australia is not facing any war like situation or a war per se, and so, there is no need for deviation from the established norms, as long as the situation remains the same. The national interest has to be always kept in mind, as it impacts the general public directly. But at the same it, it is also vital that the individuals have the liberty, independence and autonomy to move between the states. A point here can also be made in support of Gratwick v Johnson, that for promoting trade, section 92 is again important. This not only helps the public in growing their trade or commerce, but also helps the government in increasing their revenues. These revenues in turn are applied towards the national safety, which denote the interest of the state. And so, even though which changed times, Gratwick v Johnson remains to be a vital element in the freedom of inter-state movement.

Based on the circumstances present today, the decision of Gratwick v Johnson would be modified keeping in mind the decision taken in Cole v Whitfield and Cunliffe and Another v The Commonwealth of Australia. These case laws form the base for the decisions to be taken in the present times. And as per the rulings in these cases laws, the decision of Gratwick v Johnson would not apply one hundred percent, but it still presents the base for the intercourse being free from any restrictions, hindrances and burden in terms of Section 92. So, the laws may be passed which dictate that the duty is applicable for inter-state dealing or movements, but a restriction, without a strict base, could not be imposed as it would breach the constitutional provisions.

To sum up the entire decision, the 1945 decision was taken in the circumstances that were present at that time. Since 1945, a lot has changed. And so, in the given circumstances, the decision given in Gratwick v Johnson would be modified due to the changes in the situation which was present in 1945, to the present day, not only in the legislations, but also in the business environment as a whole. This, along with the ruling given in Gratwick v Johnson, has resulted in imposition of duties and has removed the absoluteness of the trade. So, in order to strike a balance between the current interest of the state, and liberty, which is provided to the individuals of the state, the 1945 decision would be modified.

Articles/ Books/ Reports

Harris B, A New Constitution for Australia (Routledge, 2013)

Puig GV, and Twigg-Flesner C, Boundaries of Commercial and Trade Law, Issue 1 (Selleir European Law Publishers, 2011)

Cases

Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18

Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272

Gratwick v Johnson (1945) 70 CLR 1

Miller v TCN Channel Nine Pty Ltd [1986] HCA 60

Legislations

Constitution of Australia

National Security (Land Transport) Regulations, Statutory Rules 1944 No. 49

National Security Act 1939-1943

Restriction of Interstate Passenger Transport Order

Other

Australasian Legal Information Institute, Commonwealth Of Australia Constitution Act - Sect 92 (2017) <https://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s92.html>

Australasian Legal Information Institute, Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1 (30 May 1945) (2017) <https://www.austlii.edu.au/au/cases/cth/HCA/1945/7.html>

Australian Law Reform Commission, 5. Freedom of Movement (2017) <https://www.alrc.gov.au/publications/protections-statutory-encroachment-1>

Parliamentary Education Office, The Australian Constitution (2017) <https://www.peo.gov.au/learning/closer-look/the-australian-constitution.html