This test was adopted and applied by the High Court until 1988, where in the case of Cole v Whitfield the section was reinterpreted as a prohibition on protectionist legislation.

The case rendered a key pillar of Labor's economic policy unworkable and possibly was influential in the eventual defeat of the government in 1949.

Labor remained in opposition for 23 years and with nationalisation no longer an option, the party moved towards less direct methods to achieve its social and economic goals.

The Board noted that the question of whether a law was merely regulatory or unduly discriminatory "will often be not so much legal as political, social or economic.

[15] At the 1949 federal election the Chifley government lost power, ostensibly due to the problems regarding this legislation and the Court case.

[16] This particular understanding of s 92 would remain highly influential, until it was overturned in favour a free trade interpretation in Cole v Whitfield.