Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

Free Movement of Goods in the EEC and Australia: A Comparative Study*

CHRISTOPHER STAKER


I. Introduction

Section 92 of the Australian Constitution states that 'trade, commerce and intercourse among the States . . . shall be absolutely free'.1 In its application to laws and measures of the Australian States which burden the interstate trade in goods, the section invites comparison with the provisions of the EEC Treaty dealing with the free movement of goods, in particular with Article 30. Such a comparison is particularly topical, in that the case-law on both section 92 and Article 30 presently appears to be undergoing a process of development, in which the precise scope of the application of both provisions is not entirely certain. The High Court of Australia formulated a new test for invalidity under section 92 in its landmark 1988 decision in Cole v Whitfield.2 The judgments in the subsequent cases Bath v Alston Holdings Pty Ltd3 and Castlemaine Tooheys Ltd v South Australia4 have shown, however, that the new test cannot be relied upon to produce a clear result in any fact situation, and that it may require further refinement in future cases. As regards Article 30 of the EEC Treaty, an element of uncertainty as to its potential ambit was introduced this year with two difficult to reconcile decisions of the Court of Justice in Torfaen Borough Council v B & Q plc5 and Quietlynn Ltd v Southend-on-Sea Borough Council.6

The purpose of this article is to compare the new interpretation of section 92 with the way Article 30 has been applied by the Court of Justice. It

____________________
*
© Christopher Staker, 1990, Attorney-General's Department, Canberra (on leave as a Menzies Scholar in Law, Oxford University).

The views expressed in this article are personal. The author gratefully acknowledges the comments by Mr Derrick Wyatt and Professor Bernard Rudden of Oxford University, and Professor Leslie Zines of the Australian National University.

1
In full the section reads: 'On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.' The section contains an additional transitional provision which is no longer operative. The Australian Constitution, which united the previously separate Australian colonies 'in one indissoluble Federal Commonwealth' was enacted by the British Parliament in 1900 (63 and 64 Victoria, Chap 12), at the request of the colonies. It came into effect on 1 Jan 1901.
2
( 1988) 165 CLR 360 (hereafter 'Cole v Whitfield').
3
( 1988) 165 CLR 411 (hereafter 'Bath v Alston Holdings').
4
( 1990) 169 CLR 436 (hereafter 'Castlemaine Tooheys').
5
Case 145/88 Torfaen Borough Council v B & Q plc [ 1989] ECR 3851 (hereafter 'Torfaen BC').
6
Case C-23/89 Quietlynn Ltd v Southend-on-Sea Borough Council [ 1990] 3 CMLR 55, [ 1990] 3 All ER 207 (hereafter 'Quietlynn').

-209-

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