Free trade federalism in Australia and the European Union: Judicial delimitation of legislative competence

Thesis

The Commonwealth of Australia and the European Union were each formed, in large part, with the goal of creating an internal market spanning the territory of all the constituent States, but with the intention that those constituent States should continue to enjoy a considerable measure of legislative autonomy to pass diverse laws for their own polities. In each case, this was to be achieved by the establishment of a federal (or federal-like) structure with a constitutional document adopted by the constituent States, which established this internal market of free trade between the States, and entrusted the task of adjudicating the compliance with these provisions to a central, union-level court.

The High Court of Australia and the Court of Justice of the European Union have grappled with this task of how to balance the internal market against State legislative autonomy by evolving a strikingly similar jurisprudence – all the more noteworthy given the relatively limited judicial and scholarly exchange between the two systems. Both courts first ask whether the impugned law is such as to come within the scope of the free movement provisions, and then, if the law is within that scope, whether the law is nevertheless justified by reference to some legitimate purpose being pursued in a proportionate manner by the legislating State.

Over the decades, both Australia and the EU have seen contention as to the proper definition of the scope of free movement provisions, with discrimination analysis and trade restriction analysis struggling for dominance. In Australia, discrimination analysis now dominates; in the EU, the jurisprudence has been cleft into several parts, some under discrimination analysis, others under trade restriction analysis. On the question of justification, Australia and the EU have evolved a considerable jurisprudential similarity both in form and in content, with this element being less controversial than the question of scope.

In developing their jurisprudence of both scope and justification, the courts have played a significant role in determining the balance between the internal market and the preservation of State legislative autonomy in each system.

Authors: Townsend, D

• DOI: 10.5287/ora-00xa8qvd0
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Legal History; Australian Law; Federalism; Free Movement of Goods; Free Movement of Services; Comparative Law; European Union Law; Treaty on the Functioning of the European Union (TFEU); Section 92 of Australian Constitution
• Subjects: Australian Law; Single Market; Comparative Law; Law; Internal Market; European Union Law; Interstate Trade