The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union

in Global Journal of Comparative Law
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Together with matters of multilateral and bilateral regulation, domestic regulation affects the law and policy of economic relations between the European Union (eu) and Australia. This article discusses the constitutional determinants of the Australian single market and the significance to its development of the free trade jurisprudence of the Court of Justice of the European Union. When Australia was federated, free trade between the States and the removal of barriers at the borders were at the forefront of constitutional objectives. They find expression in Section 92 of the Australian Constitution. It took some time for the jurisprudence to develop by reference to principles of competition. Recent decisions of the High Court of Australia highlight the need to prove that a law or measure may have anti-competitive effects within a market to hold it invalid. Application of this (unacknowledged) test of proportionality invites comparison with eu law and opens to question the usefulness of protectionism as a criterion of constitutional invalidity for trade without borders in the ‘new economy’.

The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union

in Global Journal of Comparative Law

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5

 See for exampleO Gilpin Ltd v. Commissioner for Road Transport and Tramways (nsw) (1935) 52 clr 189.

17

 See for exampleProcureur du Roi v. Dassonville (Dassonville) Case No. 8/74 [1974] ECR 837.

18

 See for examplePike v. Bruce Church Inc 397 us 137 (1970).

21

 See for exampleJersey Produce Marketing Organisation Ltd v. States of Jersey and Jersey Potato Export Marketing Board Case No. C-293/02 [2005] ECR I-9543.

23

 See in particular Susan Kiefel‘Section 92: Markets, Protectionism and Proportionality: Australian and European Perspectives’Monash University Law Review 36(2) (2010) 1. See also Susan Kiefel ‘Lessons From a “Conversation” About Restitution’ Australian Law Journal 88(3) (2014) 176 and Susan Kiefel ‘English European and Australian Law: Convergence or Divergence?’ Australian Law Journal 79(4) (2005) 220.

27

 See also Gonzalo Villalta Puig‘Trade and Investment Relations between the European Union and Australia: For a Bilateral Economic Integration Agreement’European Foreign Affairs Review 17(2) (2012) 213.

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