Justifying trade restrictions under s 92 of the Australian Constitution: a comparative-law-based proposal for a coherent doctrine
Australian Law Journal, vol. 94, no. 11, pp. 874-887 (2020)
15 Pages Posted: 30 Mar 2021
Date Written: March 29, 2021
This paper, by means of comparative analysis of federal markets, proposes a general doctrine for the public interest analysis under s 92. The paper uses the framework established by the jurisprudence of the High Court and carries out comparative law analysis from the perspective of what the Court perceives as the federal purpose of s 92. It demonstrates that an object-based public interest analysis would be incoherent, given that trade restrictions are usually based on both protectionist and legitimate considerations and, hence, the measure’s object should have a supplementary role. It argues that in the Australian federal systems the courts’ mandate is to maximize the “federal surplus” and, hence, they should engage in evaluative balancing, which entails no unsurmountable difficulties.
Keywords: Australian Constitution, EU Internal Market, Free Trade Clause, s 92 of the Australian Constitution
JEL Classification: K10
Suggested Citation: Suggested Citation