By Pamela Kalyvas, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Cole v Whitfield (Tasmanian Lobster Case) (1988) 165 CLR 360

Court – High Court of Australia
Judges – Mason CJ, and Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ
Date of Judgment – 2 May 1988


The appellant was a senior inspector of the Tasmanian Fisheries Development Authority (‘TFDA’), the body responsible for the enforcement of the provisions of the Fisheries Act 1959 (Tas) (‘the Act’) and the Sea Fisheries Regulations 1962 (Tas) (‘the Regulations).

Whitfield, the respondent, was the operations manager of the Boomer Park Crayfish Farm, Dunalley in Tasmania (‘Boomer Park’). Boomer Park purchased and marketed live crayfish throughout Australia and internationally. On 5 January 1983, a district fisheries inspector employed by the TFDA inspected Boomer Park and discovered sixty male crayfish and thirty-seven female crayfish who were under the prescribed minimum size for crayfish in Tasmania. These undersized crayfish were part of a delivery from South Australia.

Whitfield was charged with possession of undersized crayfish in violation of the provisions of regs 31(1)(d)(ix),(x) and 44(3) of the Sea Fisheries Regulations 1962 (Tas). Whitifield pleaded not guilty and sought to rely upon the protection of s 92 of the Constitution of the Commonwealth of Australia, which provides:

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.


Whether regs 31(1)(d)(ix) and (x) of the Regulations were inconsistent with s 92 of the Australia Constitution.


The Court decided that regs 31(1)(d)(ix) and (x) of the Regulations, when applied to the possession of the crayfish, were compatible with the freedom guaranteed by s 92 of the Australian Constitution. As such, the charges laid with respect to possession of undersized crayfish were valid.

The Court referred to the history of s 92 and the intention of the drafters of the Australian Constitution. Their Honours reasoned that although the provision was intended to eliminate all border customs duties, there was no suggestion that it was intended to prevent the enactment of regulations necessary for the conduct of business. Accordingly, while s 92 was designed to preclude the imposition of protectionist burdens, the section did not guarantee a measure of freedom with respect to trade and commerce that would leave parties immune from all legislative or executive oversight. The “absolute freedom” of s 92 was said to relate to immunity from discriminatory burdens of a protectionist kind. The Court distinguished between different types of laws:

A law which has its real object the prescription of a standard for a product or service or a norm of commercial conduct will not ordinarily be grounded by protectionism and will not be prohibited by s 92. But if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against inter-State trade or commerce in pursuit of that object in a way or to an extent which warrants characterization of the law as protectionist, a court will be justified in concluding that it nonetheless offends s 92.

The Court considered whether the burdens of the regulations imposed on interstate trade in crayfish were so disadvantageous “to interstate trade in crayfish as to raise a protective barrier around Tasmanian trade in crayfish.” It held that prohibitions against the sale and possession of undersized crayfish had no discriminatory protectionist purpose and the object of the prohibitions was “to assist in the protection and conservation of an important and valuable resource, the stock of Tasmanian crayfish.”


The case recognised that laws protecting natural resources may impact on trade between states. Such laws are nevertheless vital to the long-term maintenance of natural resources.

This case also exemplifies the predominance of profitability in the context of trade in animal products. That possession of undersized sea animals was prohibited to preserve the stock of the “resource” rather than for the purpose of protecting young animals highlights how animal interests are often only upheld incidentally in commerce.

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