A European Saving Test for Section 92 of the Australian Constitution

Abstract

This article celebrates the recent decision of the High Court of Australia in Betfair Pty Ltd v Western Australia to revise the uniquely Australian concept of abridged proportionality that frames the Cole v Whitfield saving test for section 92 of the Australian Constitution. The critique that the article makes of abridged proportionality takes the form of a comparison
with the continental European concept of robust proportionality. The comparison reveals that, unlike robust proportionality, abridged proportionality poses a twofold risk: one, that the test might save laws or measures that have a discriminatory effect on interstate trade and commerce if they have a purpose that is not protectionist; and, two, that the
test might not save laws or measures that, in effect, legitimately regulate interstate trade and commerce if they have a purpose that is indeed protectionist. Thus, the article argues that abridged proportionality cannot preserve the Australian common market with the same level of strength that robust proportionality has. In conclusion, the article celebrates the fact that, since Betfair Pty Ltd v Western Australia, the High Court of Australia is now free to analyse not only the purpose but also the effect of any law or measure under challenge when it considers future cases on section 92.