Comparing Apples with Oranges? Drawing Lessons from the Australian Constitutional Experience with the Anti-Monopoly Law of the People's Republic of China

This article examines China's recently enacted Anti-Monopoly Law focusing on the potential effects of Article 8 and Chapter V's absolute restrictions on administrative monopolies. If enforced, public administrators at lower levels of government will face a predicament: how to manage the necessary or legitimate functions of government that incidentally have an anti-competitive effect. Without the National People's Congress or State Council enacting exceptions, it is likely that the current approach will hamstring fl exible and responsive public administration. In light of the likely legal conundrum arising in China, this article suggests possible lessons drawn from Australian jurisprudence concerning section 92 of the Constitution. The principles developed by the High Court of Australia, after almost a century of case law, overcame a similar quandary to that confronting the Chinese. That is, an apparently absolute statement of law seeking to stamp out internal protectionism which provided the text, but not the test. This comparative study concludes that adopting lessons from the Australian constitutional experience of section 92 to improve the effi cacy of the Anti-Monopoly Law is not simply comparing apples with oranges. Applying an Australian legal solution to a Chinese law conundrum provides an elegant and feasible solution to a universal problem.