Section 92 2023

"PROTECTIONISM"

Export analysis

- Bath v Alston Holdings (1988)

- the conferral of a competitive advantage on intrastate industry viz interstate industry

- the removal of a competitive advantage from interstate industries

Betfair #2 (2012): - discrimination without protectionist effect is not enough

- effect on profits does not mean there is a protectionist effect

PROPORTIONALITY

Beverage Container Act 1975(SA)

15c refund on non-refillable bottles

4 c on refillable bottles

Retailers had to accept returns of non-refillable bottles

Effect/purpose of regulations?

Was there a burden on interstate trade?

Was the law discriminatory?

Was law protectionist?

Did law constitute proportionate regulation?

1. Is there a burden on interstate trade?

2. Is the burden discriminatory on its face or in its practical effect against interstate trade?

3. Does the law have a protectionist effect?

4. Is that protectionist effect incidental to a non-protectionist purpose? Is the law appropriate and adapted to achieving that purpose?

Law failed because it was not appropriate and adapted to its apparent purposes

Gaudron, McHugh – look to see if measures which had less of a protectionist effect would work

Combat the litter problem

Promote energy conservation in South Australia

Section 92

trade and commerce ... among the States ... shall be absolute free

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

Sea Fisheries Regs 1962 (Tas)

- specified minimum size for crayfish

- min size larger than that allowed in SA

Reg challenged by SA importer

"trade and commerce" =

ordinary commercial meaning

Court took the unusual step of examining Convention debates to elucidate meaning

Meaning had been obfuscated by decades of inconsistent precedents

Creation of a ‘free trade’ area was envisaged by the drafters

Betfair 2, Sportsbet (2012)

- compare trade not traders

- casts doubt on Castlemaine

methodology

Section 92 prohibits discriminatory burdens on trade of a protectionist kind

Discrimination includes discrimination in law or in fact

Discrimination allowed if law had a legitimate non-discriminatory purpose (it was proportionate regulation) - what was purpose of Tas law?

S. 27D(1) - could not publish WA racefield without government approval

Cole v Whitfield still good law as it was not explicitly departed from

reinforced in later cases

- possible diminution of importance of discrimination

- perhaps now aimed at idiosyncratic State legislation in a national economy

- did it discriminate?

- against one interstate trader (cf Castlemaine)

- favoured existing WA traders, who were not betting exchanges

- but hindered establishment of future betting exchanges in WA

- does this hinder States in being able to regulate new industries?

- WA law hindered Betfair in national marketplace compared to WA competitors

S. 24(1aa) banned betting exchanges in WA

Befair 2, Sportsbet

- reinforced need for discrimination against interstate trade in general

PROPORTIONATE REGULATION

- betting exchanges did not contribute to the industry

- WA traders contributed greatly to the industry

- betting exchanges could corrupt the integrity of the betting industry

PRE-COLE APPROACHES

- none of those reasons justified the measures

- Court did not overturn Castlemaine Tooheys but were sceptical about it

- indicated that the exception would rarely apply

"Free trade approach" - focus on protectionism between States - eg. Fox v Robbins (1909)

"Individual rights approach" - focus on individual rights to trade across borders - eg. Bank Nationalisation case (1948)