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Section 92 of the Constitution and the European Court of Justice

Published online by Cambridge University Press:  24 January 2025

Christopher Staker
Christopher Staker*
Affiliation:
Attorney-General's Department, Canberra (on leave as a Menzies Scholar in Law, Oxford University)
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Extract

Section 92 of the Australian Constitution contains a terse statement that “trade, commerce, and intercourse among the States ... shall be absolutely free”. The High Court's troubled search since Federation to give that statement a clear and certain interpretation is well known and requires no reiteration here. Michael Coper has identified 32 different phases in the history of the interpretation of s 92 between 1909 and 1980. When the latest phase was ushered in with the High Court's 1988 decision in Cole v Whitfield, it was accompanied by predictions by some commentators that it would be the last Professor Lane, for instance, said that “The decision descended as a deus ex machina, providing an uncomplicated solution for those who write and advise on the kind of freedom of interstate trade and commerce that is now guaranteed by s 92 of the Constitution”. The more pessimistic might wonder whether the Cole v Whitfield interpretation will in fact prove more durable than any of its predecessors.

Type
Research Article
Information
Federal Law Review , Volume 19 , Issue 4 , December 1990 , pp. 322 - 351
Copyright
Copyright © 1990 The Australian National University

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Footnotes

The views expressed in this article are the personal views of the author and not necessarily those of any Commonwealth Department. authority or officer. The author gratefully acknowledges the comments of Professor Bernard Rudden and Mr Derrick Wyatt of Oxford University. Professor Leslie Zines and Mr Joshua Getzler. Responsibility for any errors or omissions remains. of course. with the author.

References

1 See M Coper, Freedom of Interstate Trade under the Australian Constitution (1983) and the literature cited at 371-380; L Zincs, , The High Court and the Constitution (2nd ed 1987) Chs 6-8Google Scholar; PH Lane, , Lane's Commentary on the Australian Constitution (1986) 501-543Google Scholar; C Howard, , Australian Federal Constitutional Law (3rd ed 1985) Ch 5Google Scholar; M I Detmold, , The Australian Commonwealth: A Fundamental Analysis of its Constitution (1985) Ch 3Google Scholar.

2 M Coper, supra n l, Chs 2-33. The firsts 92 case was Fox v Robbins (1909) 8 CLR 115. The last case considered in Coper's study was Bernard & Co Pty Ltd v Langley (1980) 32 ALR 57.

3 (1988) 165 CLR 360, 78 ALR 42, 62 ALJR 303. (Subsequent page references are to the CLR report.)

4 P H Lane, , “The Present Test for Invalidity under Section 92 of the Constitution” (1988) 62 AU 604, 614Google Scholar.

5 (1988) 165 CLR 411, 78 ALR 669, 62 AUR 363. (Subsequent page references are to the CLR report.)

6 (1990) 169 CLR 436, 90 ALR 371, 64 ALJR 145. (Hereafter “Castlemaine Tooheys”) (subsequent page references are to the CLR report.)

7 Indeed, the High Court itself acknowledged that “Inevitably the adoption of a new principle of law, though facilitating the resolution of old problems, brings a new array of questions in its wake”: Cole v Whitfield, supra n 3, 408)

8 Ibid 405.9 n 6, 468-471, 475.

10 Ibid 471.

11 There is abundant literature. On the structure and institutions of the EEC (that is, its “constitutional” and “administrative” law) see: T C Hanley, , The Foundations of European Community Law: An Introduction to the Constitutional and Administrative Law of the European Community (2nd ed 1988)Google Scholar; DA C Freestone and JS Davidson, The Institutional Framework of the European Communities (1988); D Lasok, J W Bridge, , Law and Institutions of the European Communities (4th ed 1987)Google Scholar. On the “economic” law of the EEC (including the law relating to the free movement of goods) see especially D Wyatt and A Dashwood, The Substantive Law of the EEC (2nd ed 1987), and also J Steiner, Textbook on EEC Law (1988); D Lasok, The Law of the Economy in the European Communities (1980). A comprehensive treatment of all aspects of European Community law can be found in Halsbury's Laws of England (4th ed) Vols 51-52 (1986).

12 Currently Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom.

13 Which was signed by the six original members in 1957. The text of the Treaty and related instruments can be found in B Rudden, D Wyatt, (eds), Basic Community Laws (2nd ed 1986)Google Scholar.

14 In the United Kingdom, for instance, the European Communities Act 1972 has the effect that “Any rights or obligations created by the Treaty are to be given legal effect in England without more ado”:HP Bulmer Ltd v J Bollinger SA (1974) l Ch 401, 419 per Lord Denning MR. See also Stoke-on-Trent City Council v B & Q pie (1990) 3 CMLR 31, 34 (United Kingdom, Chancery Division, per Hoffmann J): “The Treaty of Rome is the supreme law of this country, taking precedence over Acts of Parliament.”

15 Some of these organs are common to the European Coal and Steel Community and the European Atomic Energy Community (“Euratom”).

16 “Regulations” are of general application and are directly applicable in all member States. “Directives” impose on member States an obligation to achieve a particular result in national law. “Decisions” are addressed to particular member States or individuals, and are directly binding on the addressee. The EEC may also issue non-binding “recommendations” and “opinions”.

17 The Court consists of a judge from each member State, a President and six Advocates General. The Advocates General have no equivalent in the common law system. It is the function of an Advocate General to give an impartial and reasoned opinion on a case in open court at the end of the oral proceedings in order to assist the Court in preparing its judgment (EEC Treaty, Art 166). This opinion is not binding on the Court, but it is influential, and is printed with the Court's judgment in the law reports. See further, TC Hartley, supra n 11, 52; Halsbury's Laws of England, supra n 11, Vol 51, 316-317. The Court's judgments are published in English by the Court itself in an official series of reports, the European Court Reports (ECR), and unofficial reports, such as the Common Market Law Reports (CMLR), published by the European Law Centre in London, and the European Community Cases (CEC), published by CCH. A useful casebook is B Rudden, Basic Community Cases (1987).

18 The jurisdiction of the ECJ is dealt with in Arts 169-188 of the EEC Treaty. It is not possible to discuss the details of these provisions in this article. See T C Hartley, supra n 11, 56-59, 246-315; Halsbury's Laws of England, supra n 11, Vol 51, Ch 2. The Commission (Art 169) or a member State (Art 170) which considers that another member State has failed to fulfil an obligation under the Treaty may bring the matter directly before the ECJ. If the Court finds that the member State has failed to fulfil the obligation, the member State is required to take the necessary measures to comply with the Court's judgment (Art 171). Where a national court of a member State considers that a question of Community law is relevant to a matter before it, it may (or in some cases, must) request the ECJ to give a preliminary ruling on that question (Art 177). The national court will then give judgment in the matter before it, taking account of the ruling given by the ECJ.

19 Art 2: The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.

20 Eg the banking cases, such as Bank of New Soulh Wales v Commonwealth (1948) 76 CLR 1, Commonwealth v Bank of New Soulh Wales (1949) 79 CLR 497; and the transport cases, such as Hughes and Vale Pty Ltd v New South Wales (No I) (1953) 87 CLR 49, Finemores Transport Pty Ltd v New South Wales (1978) 139 CLR 338.

21 R v Smithers; Ex parte Benson (1912) 16 CLR 99;Gratwick v Johnson (1945) 70 CLR l; Cole v Whitfield, supra n 3, 393.

22 Halsbury's Laws of England, supra n 11, Vol 52, 91, para 12.49 nl.

23 Article 95 provides in part: No Member State shall impose, directly or indirectly, on the products of other Member States, any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.

24 Under s 90, if not under s 92: Cole v Whitfield, supra n 3, 407. See also Commonwealth and Commonwealth Oil Refineries Ltd v South Australia (1926) 38 CLR 408.

25 Bath v Alston Holdings supra n 5, is a case in point.

26 Art 36: The provu1ons of Arts 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

27 See also the literature cited supra n 11; P Oliver, , Free Movement of Goods in the EEC Under Articles 30 to 36 of the Rome Treaty (2nd edn, 1988)Google Scholar; F Burrows, , Free Movement in European Community Law (1987)Google Scholar; L W Gormley, , Prohibiting Restrictions on Trade Within the EEC: The Theory and Application of Articles 30-36 of the EEC Treaty (The Hague 1985)Google Scholar. On the development of the present interpretation of Art 30, see also Meij, A W H Winter, J A, “Measures Having an Effect Equivalent to Quantitative Restrictions” (1976) 13 Common Market Law Review 19CrossRefGoogle Scholar.

28 Eg Salgoil SpA v Italian Ministry for Foreign Trade (Case 13/68) [1968] ECR 453, [1969] CMLR 181.

29 Eg EEC Commission v Italy (Re Ban on Pork Imports) (Case 7/61) [1961] ECR 317, [1962] CMLR 39.

30 (Case 8ll4) [1974] ECR 837, [1974] 2 CMLR 436, para 5.

31 Officier van Justitie v Van de Haar (Joined cases 177-178/82) [1984] ECR 1797, [1985] 2 CMLR 566;Prantl (Case 16/83) [1984] ECR 1299, [1985] 2 CMLR 238.

32 International Fruit Co NV v ProdukJschap voor Groenten en Fruit (Joined cases 51- 54nl) (1971) ECR 1107, para 9; EC Commission v United Kingdom (Re U/-IT Milk) (Case 124/81) (1983) ECR 203, [1983) 2 CMLR 1, para 9.

33 (Case 192/84) [1985) ECR 3967.

34 EC Commission v Ireland (Re “Buy Irish” Campaign) (Case 249/81) [1982) ECR 4005, [1983) 2 CMLR 104; Apple and Pear Development Council v K J Lewis Ltd (Case 222/82) [1983] ECR 4083, [1984) 3 CMLR 733.

35 (Case 50/83) [1984] ECR 1633, [1985] 1 CMLR 777.

36 Italian State v Gilli and Andres (Case 788n9) [1980] ECR 2071, [1981) 1 CMLR 146.

37 See also EC Commission v United Kingdom (Re Origin Marking of Retail Goods) (Case 207/83) [1985) ECR 1201, [1985) 2 CMLR 259: a United Kingdom law requiring both domestic and imported goods to be labelled with country of origin was inconsistent with the EEC Treaty, as it enabled the consumer “to give his preference to national products” (at para 20).

38 (Case 104n5) [1976] ECR 613, [1976] 2 CMLR 271.

39 Supra n 30.

40 Oosthoe/c's Uitgeversmaatschappij BV (Case 286/81) [1982] ECR 4575, [1983] 3 CMLR 428.

41 Rewe-Zentral AG v Blllldesmonopolverwaltung fur Branntwein (Case 120n8) [1979] ECR 649, [1979] 3 CMLR 494.

42 Ibid para 8 (emphasis added).

43 Steiner, supra n 11, 65; Halsbury's Laws of England, supra n 11, Vol 52, 119, para 12.83; L W Gormley, supra n 27, 51ff.

44 The legitimate purposes referred to supra n 42 are not exhaustive. “The interests or values which are capable of benefiting from the rule of reason are not a closed class, although certain interests or values have been specifically recognised by the Court of Justice”: Halsbury's Laws of England, supra n 11, Vol 52, 121, para 12.84. These are commonly categorised as consumer protection, prevention of unfair commercial practices, protection of public health, environmental protection, improvement of working conditions, effectiveness of fiscal supervision (ibid 121-125, paras 12.85-12.90), and, possibly, protection of cultural interests (ibid 121, para 12.84 n 2).

45 Walter Rau Lebensmittelwerk.e v De Smedt PvbA (Case 261/81) [1982) ECR 3961, [1983) 2 CMLR 496, para 12.

46 Supra n 41, para 14. See also the Communication of the Commission of 3 October 1980, quoted in D Wyatt and A Dashwood, supra n 11, 136.

47 Supra n 45.

48 Ibid para 17.

49 (Case 178/84) [1988) 1 CMLR 780.

50 Supra n 41.

51 Ibid para 10.

52 Ibid para 14.

53 Supra n 40.

54 Ibid para 18.

55 Cinitheque SA v Federation Nationale des Cinemas Franfais (Joined cases 60-61/84) [1985) ECR 2605, (1986) 1 CMLR 365.

56 Ibid para 22.

57 Officier van Justitie v Koninlclijke Kaasfabrulc Eyssen BV (Case 53/80) [1981) ECR 409, (1982) 2 CMLR 20.

58 D Wyatt and A Dashwood, supra n 11, 142. See also Halsbury's Laws of England, supra n 11, Vol 52, 119, para 12.83. But see W H Smith Do-It-All Ltd v Peterborough City Council (United Kingdom, Queen's Bench Division) [1990] 2 CMLR 577, 603-604.

59 Supra n 26. It is not possible to deal here with all aspects of this provision, but see infra text at nn 70-71.

60 EC Commission v Ireland (Case 113/80) [1981) ECR 1625; Theodor Kohl KG v Ringelhan and Rennell SA (Case 177/83) [1984] ECR 3651, [1985] 3 CMLR 340; Gilli and Andres, supra n 36; Schutzverband gegen Unwesen in der Wirtschaft v Weinvertriebs-GmbH (Case 59/82) [1983] ECR 1217, [1984] 1 CMLR 319.

61 Supra n 55; infra text at n 114-115.

62 Supra n 4, 604. On the new test, see also J Goldswonhy, H P Lee, , “Constitutional Law”, in R Baxt, G Kewley, (eds) An Annual Survey of Australian Law 1988 1Google Scholar; C Howard, , “Section 92 and the Discrimination Test” (1988) 62 LIJ 644Google Scholar and “Section 92 of the Constitution: the first rift in the new order” (1988) 62 LIJ 760; R Cullen, , “Section 92: Quo Vadis?” (1989) 19 UWAL Rev 90Google Scholar.

63 Supra n 3, 394 (emphasis added).

64 Supra n 4, 612.

65 Supra text at nn 28, 29, 32-34, 60.

66 In Bath v Alston Holdings, supra n S, 424-425, differentiation was equated with discrimination.

67 Mason CJ, Brennan, Deane and Gaudron JJ.

68 Under the same legislation a licence fee including an equivalent ad valorem amount in respect of tobacco supplied to Victorian retailers was imposed on Victorian wholesalen. The minority (Wilson, Dawson and Toohey JJ) held that the law was not protectionist since in effect the same fee was charged in respect of tobacco supplied by interstate or local wholesalers, the only difference being that in the case of the former it was imposed at the retail level and in the case of the latter at the wholesale level.

69 Compare the International Fruit Company NV case, supra n 32, with the pre-Cole v Whitfield cases Ackroyd v McKechnie (1986) 161 CLR 60 and James v Commonwealth (1936) 55 CLR 1. A requirement of a licence to sell (rather than import) both domestic and imported products of a particular kind should not of itself offend against s 92 provided licence fees do not discriminate between the two (see also Fox v Robbins (1910) 8 CLR 115).

70 Supra n 26.

71 Under Art 36 of the EEC Treaty inspection of imported produce for pests and disease is justified (Rewe-Zentralfinanz GmbH (Case 4/5) [1975] ECR 843, [1976] l CMLR 599; Commission v Ireland (Re Protection of Animal Health) (Case 74/82) [1984] ECR 317), but not if checks of a similar standard have already been carried out by the authorities of the State of export (Commission v United Kingdom (Re Ulll Milk), supra n 32). Cf earlier Australian cases on inspections of imported goods such as Bernard & Co Ply Ltd v Langley (1980) 32 ALR 57. In relation to public morality, in the EEC a member State may for instance ban the import of pornographic material defined to include some material not actually illegal in the banning State (R v HeM and Darby (Case 34/9) (1979] ECR 3795, [1980] l CMLR 246, [1981] AC 850), but cannot ban the import of types of material (in this case “love dolls”) that may be freely manufactured and marketed locally: Conegate Ltd v HM Customs and Excise [1987] QB 254. Cf also Literature Board of Review v Transport Publishing Co Ply Ltd (1955] QSR 466 and (1956) 99 CLR 111, and Commonwealth of Australia, Final Report of the Constitutional Commission (Canberra 1988) Vol 2, 808, para 11.178.

72 (1949) 79 CLR 497, 641.

73 Supra n 3, 408; Castlemaine Tooheys, supra n 6, 466-467.

74 Supra n 35.

75 Supra n 36.

76 CFO'Sullivan v Miracle Foods (SA) Pty Ltd (1966) 115 CLR 177, in which a South Australian law requiring the ingredients of all margarine sold in the State to be submitted for inspection by South Australian officials prior to manufacture was held invalid. Although on its face the law applied equally to local and interstate manufacturers, it was obviously impracticable for interstate producers to comply with the requirement. As to cases where the State law applies in practice to interstate trade only for the reason that there is no relevant intrastate trade, see infra Part 5.

77 Compare Samuels v Readers' Digest Association Ply Ltd (1969) 120 CLR 1 with the Oosthoek case, supra n 40; SOS (Mowbray) Ply Ltd v Mead (1972) 124 CLR 529 with the Eyssen case, supra n 57; Castlemaine Tooheys with EC Commission v Denmark (Re Disposable Beer Cans) (Case 302/86) [1989] ECR 4607, [1989] 1 CMLR 619 (infra n 95); and the Miracle Foods case, supra n 76 (in which the High Court upheld a law requiring all margarine sold in South Australia to be in containers bearing the inscription “margarine” in letters of a particular size and style) with the Walter Rau case, supra text at nn 47-48.

78 Supra n 3, 409.

79 Id.

80 Supra n 30.

81 Supra n 42.

82 Supra n 45.

83 Supra n 3, 409.

84 Id.

85 Ibid 409-410.

86 Ibid 409 (emphasis added).

87 Ibid 408 (emphasis added).

88 Id.

89 Joint judgment of Mason CJ, Brennan, Deane, Dawson and Toohey JJ. In a joint judgment, Gaudron and McHugh JJ concurred.

90 Supra n 6, 472.

91 Id.

92 Ibid 477.

93 Ibid 473; 480 per Gaudron and McHugh JI.

94 Id.

95 It is interesting to compare this case with EC Commission v Denmark (Re Disposable Beer Cans), supra n 77, in which both the facts and the outcome were similar to Castlemaine Tooheys. In that case, a Danish law had established a compulsory deposit-and-return scheme for soft drink and beer containers. The law further prohibited more than 3000 hl of drinks per producer per annum being sold in containers that had not been approved by the Danish Government. The Government's policy was to keep to a minimum the number of types of approved containers in order to facilitate the handling of containers that had been returned to retailers. It was therefore difficult for foreign producers to obtain approval for their containers where similar Danish containers had already been approved. If they were to sell more than 3000 hl per annum in Denmark, they had, at some expense to themselves, to conven to the use of approved Danish containers. The ECJ found: (I) That the Danish law imposed restrictions on the free movement of goods between member States: para 12;(II) That the “protection of the environment is a mandatory requirement which may limit the application of An 30 of the Treaty”: para 9; (III) That the deposit and return scheme was necessary to attain the objectives of the disputed law: para 13, but that Denmark had failed to fulfil its obligations under An 30 in so far as it limited to 3000 hl the amount of beer and soft drinks that could be imponed in non-approved containers. In this respect the objectives of the law could have been attained by more proponionate measures: para 21.

96 Supra text at n 86.

97 Supra text at n 93.

98 Supra text at n 94.

99 The test of reasonableness developed by the High Coun in these two cases is not entirely novel. In some of the earlier s 92 cases the Coun applied a concept of “reasonable regulation”. See L Zines, supra n 1, 115-118, 127-136; P H Lane, , The Australian Federal System(2nd ed 1979) 766Google Scholar; Uebergang v Australian Wheat Board (1980) 145 CLR 266, 306 (per Stephen and Mason JJ); Bernard & Co Pty Ltd v Langley (1980) 32 ALR 57. In the Miracle Foods case, supra nn 76-77, Windeyer J said of the margarine labelling requirement “To insist on this is not to impose an impediment on honest trade and commerce ... No honest trader can object to a requirement that his wares be marked by their proper name and sold under that description” (at 196). This is precisely the type of regulation the ECJ envisaged would be consistent with An 30 of the EEC Treaty in the Walter Rau case (esupra text at n 48).

100 Supra text at n 42 (“necessary”, “mandatory requirements”); supra text at n 48 (''the requirements of the objective”).

101 Supra n 6, 473.

102 The “appropriate and adapted” formula was borrowed from the “analogous field” of the implementation of treaty obligations by the Commonwealth: at 473, referring to Commonwealth v Tasmania (fasmanian Dam case) (1983) 158 CLR 1, Richardson v Forestry Comission (1988) 164 CLR 261.

103 Halsbury's Laws of England, supra n 11, Vol 52, 120, para 12.83 n 10. See also supra text at n 45, EC Commission v Denmark (Re Disposable Beer Cans), supra n 77, paras 13 and 21, and EC Commission v France (Rellalian Table Wine) (Case 42/82) (1983] ECR 1013, (1984] 1 CMLR 160, para 54: “the measures ... carried out must be necessary for attainment of the desired objectives and must not create obstacles to trade which are disproportionate to those objectives.”

104 Supra n 3, 409. See also Castlemaine Tooheys, 472.

105 Supra n 44.

106 Supra n 6, 470-471. On this ground, the Court expressly distinguished the American cases on the commerce clause, such as Pike v Bruce Church Inc 391 US 137, 142 (1970): “IT a legitimate local purpose is found, then the question becomes one of degree.”

107 Supra n 44.

108 EC Commission v Italy (Re Customs Agents) (Case 159n8) (1979] ECR 3247, 3259, (1980] 3 CMLR 446, 459.

109 Castlemaine Tooheys, supra n 6, 472.

110 Supra n 44.

111 Supra n 6, 472: “ff the South Australian legislation were not anempting to provide a solution to these problems, the burden on interstate trade would be discriminatory in a protectionist sense...”

112 Id (emphasis added).

113 Ibid 461.

114 Supra n 55, 2611.

115 Ibid paras 21-22. See also Torfaen Borough Council v B & Q pie (Case 145/88) (1990) 1 CMLR 337, [1990) 1 All ER 129 in which the ECJ held that a United Kingdom law banning Sunday trading would be inconsistent with Art 30 unless it satisfied the rule of reason, notwithstanding that it affected sales of domestically produced goods to the same extent as sales of imported goods.

116 In Cole v Whitfield the Court referred to, but did not adopt, opinions expressed in earlier cases that a law could contravene s 92 while placing equal burdens on interstate and intrastate trade: at 404-405, quoting New South Wales v Commonwealth (1915) 20 CLR 54, 68 (per Griffith CJ); Bank of New South Wales v Commonwealth (the Banking case) (1948) 76 CLR 1, 386-387 (per Dixon J, quoting Frankfurter Jin Freeman v Hewit 329 US 249, 252 (1947)).

117 Supra n 3, 393-394, citing Duncan v Queensland (1916) 22 CLR 556, 573; Freightlines & Construction Holding Ltd v New South Wales (1967) 116 CLR 1, 4-5, [1968] AC 625, 667.

118 Ibid 394: “... the failure of the section to define expressly what interstate trade and commerce was to be immune from is to be explained by reference to the dictates of political expediency, not by reference to a purpose of prohibiting all legal burdens, restrictions, controls or standards.”

119 Supra n 1, 297.

120 Supra n 3, 392-393.

121 Ibid 393.

122 Ibid 408-409.

123 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 81 (per Dixon J). Thus, while the nineteenth century concepts may constitute the 'centre' of s 92, they do not necessarily constitute the 'circumference': cf Attorney -General (NSW) v Brewery Employees Union of NSW (the Union Label case) (1908) 6 CLR 469, 610 (per Higgins J).

124 North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559.

125 Ibid 615. Also New South Wales v Commonwealth (the Incorporation case) (1990) 169 CLR 482, 511 (per Deane J (dissenting)): “... it is not permissible to constrict the effect of the words which were adopted by the people as the compact of a nation by reference to the intentions or understanding of those who participated in or observed the Convention Debates” (citing Breavington v Godleman (1988) 169 CLR 41, 131-133).

126 Supra n 3, 385. See also the Incorporation case,supra n 125 at 501 (per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ), citing Cole v Whitfield and Port MacDonne1 Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340, 375-377.

127 MJ Detmold, supra n 1, 32.

128 P H Lane, supra n 99, 756.

129 Barller's Farms Pty Ltd v Todd (1978) 139 CLR 499, 523 (per Jacobs J); Samuels v Readers' Digest Association Pty Ltd (1969) 120 CLR 1, 14-15 (per Barwick CJ); L Zines, supra n 1, 90, 120, 140-145; Commonwealth of Australia, Final Report of the Constitutional Commission (Canberra 1988) Vol 2, 774; M Coper, supra n 1, 3. M J Detmold, supra n l, 34.

131 Cole v Whilfield, supra n 3, 391.

132 Cf L Zines, supra n l, 141. The view that s 92 is intended to guarantee the right of the individual trader to pursue his or her business across State boundaries has generally been discredited: see L Zines, ibid 90-91, 100-105, 116-117, 145; MCoper, supra n 1, 305-307.

133 Cole v Whitfield, supra n 3, 386, 391. Cf the opinion of Advocate General Van Gerven in Torfaen Borough Council v B &Q p/c (supra n 115, para 18): “... the relevant comparison is not between imported and domestic products but between national markets. The prohibition of quantitative restrictions laid down in art 30, which is one of the mainstays of the unity of the Common Market, implies, of course, that all national markets in the Community should remain sufficiently accessible to undertakings from other member States.”

134 Cf PH Lane, supra n 99, 757, who points out that since federation, the States cannot act as foreign countries towards eachother, and must be aware that everything they do “though seemingly within [their] own boundaries, is done in a federal milieu ... and can have an effect on the other partners in the Federation and on national commerce and movement”.

135 Supra text at n 46.

136 The DePeijper and Dassonville cases (supra nn 38-39) establish that such measures would not be consistent with Art 30 of the EEC Treaty.

137 Similarly, suppose that a State had no domestic beer industry, but introduced a system of quotas for beer imported from other States. One would have thought that the drafters of the Constitution would definitely have intended such a measure to be invalid (Cole v Whitfield, supra n 3, 393), even though it gives no advantage to a domestic product.

138 Supra text at n 113.

139 Although in Bath v Alston Holdings there was disagreement on the question of whether there was in fact an advantage to intrastate traders.

140 In Cole v Whitfield the Court said that s 92 prevented a State from imposing burdens on interstate trade in order to protect intrastate trade “of the same kind” (at 394). Given that the test of invalidity under s 92 is intended to reflect social and economic realities (ibid 408), a domestic and an imported product are presumably “of the same kind” in any case where the two products are capable of competing in the same market. In order to be protectionist, a State law should not have to discriminate against imported goods in favour of identical domestic goods. In Cole v Whitfield the Court spoke in more general terms of laws which discriminate against interstate trade or commerce in favour of intrastate trade (at 408) and in Castlemaine Tooheys of laws which “give the domestic product ... a competitive or market advantage over the imported product ...” (at 467). Cf also the definition of “market” in s 46 of the Trade Practices Act 1974, discussed in Queensland Wire Industries Ply Ltd v The Broken Hill Pty Co Ltd (1988) 167 CLR 177, 188 (per Mason CJ and Wilson J, quoting Hoffmann-La Roche & Co v EC Commission (Case 85n6) (1979] 1 ECR 461, 516, (1979] 3 CMLR 211, 272). (But see Professor Lane (supra n 4, 612), who appears to disagree, saying that the High Court would have to “revise its understanding” of the Cole v Whitfield test if it were to invalidate a State law which protected domestic buuer against imported margarine ).

141 Cf L Zines, supra n 1, 141, citing D J Rose, “Federal Principles for the Interpretation of Section 92 of the Constitution” (1972) 46 AU 371, 375.

142 An expression used in Part XVA of the Customs Act 1901 in relation to Commercial Tariff Concession Orders: see s 269B (4) of that Act.

143 On the provisions of the Customs Act referred to in n 142 above, see Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs (1989) 86 ALR 387, Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221, Davies Craig Pty Ltd v Comptroller-General of Customs (1986) 68 ALR 105.

144 See below, text at nn 147-148.

145 Supra n 3, 400, citing Bartter's Farms Ply Lid v Todd (1978) 139 CLR 499, 510.

146 Ibid 408.

147 Supra n 6, 476.

148 Supra n 5, 426 (emphasis added).

149 Supra n 6, 475: “Discrimination in the relevant sense against interstate trade is inconsistent with s 92, regardless of whether the discrimination is directed at, or sustained by, all, some or only one of the relevant interstate traders.”

150 See also supra text at n 140.

151 Suppose a State in which no margarine was produced enacted the law described supra n 76 expressly for the purpose of encouraging the establishment of a local margarine industry. Would the law be invalid under s 92 per se, or would it be valid until such time as a local industry did in fact establish itself?

152 Supra n 115.

153 Ibid para 26.

154 Ibid para 21.

155 Ibid paras 23-24.

156 Thus the rule of reason in Art 30 would be applicable to any law of a member State which prohibited or made more difficult the sale of a particular product (such as margarine packed in ropnd tubs, liqueurs with less than a specified alcohol content, crayfish under a certain size, or beer in non-refillable bottles), in so far as the law applied to goods imported from other member States. The law would “screen off' the domestic market from the Community market in that product. It would be irrelevant that the law gave no advantage to domestic producers of that product, or that there were no domestic producers of the product.

157 Ibid para 23. Thus a law which prohibited particular marketing techniques (such as canvassing) would be subject to the Art 30 rule of reason if it deprived traders from other member States of an essential means of penetrating the local market, even if domestic traders were equally affected by the law. However, on this view Art 30 would not apply to measures such as local planning laws restricting the establishment of retail outlets in a member State. Such laws may have the effect of reducing the total number of retail outlets in that country, and hence the total amount of retail sales, including sales of goods imported from other member States. However, such laws, if applied generally and without discrimination, do not make penetration of the domestic market much more difficult for manufacturers of goods in other member States. Advocate General Van Gerven gave as other examples of such measures laws regulating shopping hours, laws providing for the confiscation of goods for the non-payment of taxes, and laws imposing speed limits (at para 26).

158 In the Torfaen Borough Council case, the ECJ declined to follow the Advocate General's view that Art 30 was inapplicable to the United Kingdom Shops Act 1950, which imposed bans on Sunday trading. However, this decision must be reconciled with the judgment in the subsequent case Quietlynn Ltd v Southend-on-Sea Borough Council (Case C-23/89) (1990) 3 All ER 207, in which the ECJ held the Art 30 rule of reason to be inapplicable to a United Kingdom law which required sex shops to be licensed by local councils. (Because Art 30 was considered inapplicable, it was unnecessary in this case to consider the “public morality” exception in Art 36). The precise scope of Art 30 following these cases is the subject of some argument: see W H Smith Do-it-All Ltd v Peterborough City Council (QBD) (1990) 2 CMLR 577, 599ff. Commentators predict that in future, the ECJ will formulate some test to limit the potential application of Art 30.

159 Cole v Whitfield, supra n 3, 409: “... acquisition of a commodity may still involve the potential for conflict with s 92. That problem does not now arise.” Cf Field Peas Marketing Board (fas) v Clements and Marshall Ply Ltd (1948) 76 CLR 414; Fish Board v Paradiso (1956) 95 CLR 443.

160 Eg W & A McArthur Ltd v Queensland (1920) 28 CLR 530;Wragg v New South Wales (1953) 88 CLR 353

161 Eg Buck v Bavone (1976) 135 CLR 110;Grannall v Marrickville Margarine Pty Lid (1955) 93 CLR 55; Lachley Meats Pty Ltd v New South Wales Meat Industry Authority (1987) 92 FLR 48.

162 Cole v Whitfield reaffirmed that s 92 binds the Commonwealth, but the Court was “reluctant to attempt to express an exhaustive opinion upon that topic, even if it were possible to do so” (at 398). It indicated though that a Commonwealth law would not necessarily breach s 92 by virtue of the fact that its application was not uniform throughout Australia.

163 Price fixing: Tasca (Case 65/5) (1976) ECR 291, (1977) 2 CMLR 183; Openbaar Ministerie (Public Prosecutor) v Van Tiggele (Case 82/7) (1978] ECR 25, (1978) 2 CMLR 528;EC Commission v Italy (Re Fixing of Trading Margins) (Case 78/82) (1983) ECR 1955; Association des Centres Distributeurs Edouard Leclerc v “Au BU Vert” Sari (Case 229/83) [1985] ECR 1, (1985] 2 CMLR 286. Laws burdening exports: Jongeneel Kaas BV v Netherlands (Case 237/82) (1984] ECR 483, (1985] 2 CMLR 53. Article 30 has been held applicable to the legislation of the EEC itself: Societe les Commissionnaires Reunis Sari v Receveur des Douanes (Joined cases 80 and 81n7) (1978] ECR 927, 946-947, Halsbury's Laws of England, supra n 11, Vol 52, 126-127, para 12.92. See also EEC Treaty Art 37 (State monopolies of a commercial character).

164 For instance, Art 12 of the EEC Treaty provides that “Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect”. This article, in conjunction with other provisions for the phasing out of existing customs duties, is similar to s 90 of the Australian Constitution. In EC Commission v Belgium (Case 314/82) [1984] ECR 1543, the ECJ considered whether a fee in respect of health inspections carried out on meat at the time of importation was a fee for services to the importer, or a tax in the nature of a customs duty. Cf Harper v Victoria (1966) 114 CLR 361; Parton v Milk Board (1949) 80 CLR 229 and (outside the context of s 90) Air CaUdonie International v Commonwealth (1988) 165 CLR 462. Compare also EEC Treaty Arts 92-94 (restrictions on State aids) with ss 90-91 of the Australian Constitution (restrictions on State aids and bounties).

165 See eg the foreword by Justice Stewart of the United States Supreme Court to T Sandalow and E Stein (eds), Courts and Free Markets: Perspectives from the United Stales and Europe (1982) Vol I, vii: A “comparative study of [the US Constitution and the EEC Treaty) ... can be a stimulating and enriching undertaking. For despite their great differences, there are important similarities in the goals and institutional characteristics of the two systems.”; H Smit and P Herzog (eds), The Law of the EEC: A Commentary on the EEC Treaty (1976) viii: “From its very beginning the EEC has enjoyed a great deal of interest in the United States ... Articles in American periodicals on European antitrust laws are almost as numerous as those that have appeared in European publications.... [ECJ decisions] have also been treated frequently and elaborately.”

166 But see eg L Zines, “The Balancing of Community and National Interests by the European Court” (1973) 5 FL Rev 171 and D D Knoll, “From the Inside Looking Out: Comparing the External Capacities, Powers and Functions of the Commonwealth of Australia and the European Communities” (1985) 15 FL Rev 253.

167 K Zweigert and H Kotz, An Introduction to Comparative Law (1977) Vol I, 3. One difficulty with comparative legal studies extending beyond the Anglo-American system has always been the language barrier. One of the advantages of EEC law is that it embodies legal traditions of numerous non-English speaking countries in a wealth of primary material published in English.