Can a Protectionist Measure be Non-Discriminatory? Comparative Federal Markets and a Proposal for a Definition of Discrimination Under s 92 of the Australian Constitution

Abstract

Three decades ago, in Cole v Whitfield, the High Court of Australia opted for a discrimination-based standard with the argument that s 92 of the Australian Constitution targets solely protectionist measures. This article demonstrates, with the use of comparative law analysis, that, in contrast with this teleology, the High Court has built a lacunose definition of discrimination that is incapable of covering the whole spectrum of protectionist measures. It argues that measures having an asymmetric impact should be considered discriminatory and countenanced only if they are justified by a local legitimate end and are proportionate, even if they rely on distinctions that are not based on out-of-state origin.