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The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union1

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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’.

Affiliations: 1: Justice of the High Court of Australia vkoroglu@hcourt.gov.au; 2: Professor of Law and Associate Dean (Development and External Affairs), Faculty of Law, The Chinese University of Hong Kong, g.villalta.puig@cuhk.edu.hk

10.1163/2211906X-00301002
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/content/journals/10.1163/2211906x-00301002
2014-05-29
2017-11-22

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