Section 92: Markets, Protectionism and Proportionality — Australian and European Perspectives

Recent cases involving s 92 of the Constitution refer to economic considerations and principles relating to competition. The application of provisions of the Treaty Establishing the European Community (the ‘EC Treaty’) having similar effect, by the European Court of Justice, has led to a broader consideration of the effects of state regulation on the ideal of a common market and a lessening of the relevance of domestic protection. It has tested what is permissible state regulation by the doctrine of proportionality. This paper will compare the current Australian perspective.