Any port in a storm

What is federal Transport Minister John Anderson up to with his planned federal takeover of Australia’s ports? And what does the ACCC know about regulating ports, let alone operating them? It’s the national competition and consumer protection watchdog, for God’s sake.

I started thinking about this the other day when a local community radio station rang and asked me to comment on the constitutional implications of a federal ports takeover. Like UNSW legal academic George Williams, I expressed the view that there wasn’t really very much doubt that the Commonwealth had constitutional power to take over ports, under the trade and commerce power (almost all shipping is engaged in interstate or overseas trade) or the corporations power.

But it isn’t as simple as that.

As Williams observed, it’s unclear from existing High Court doctrine how far back or forward from the actual trading activity itself the Commonwealth can legislate under the trade and commerce power. They probably can’t legislate manufacture, nor anything beyond the first sale after interstate or overseas goods movement.

However, that restriction on power wouldn’t really inhibit Commonwealth regulatory or operational control of the ports themselves. The real problems involve the interplay between constitutional, economic and regulatory issues. In both Sydney and Melbourne, it seems that the main problems with our ports are connected with the glacial speed of state planning, building and environmental laws in holding up needed port expansion. A mere federal takeover of the ports themselves (in either a regulatory or operational sense) would not of itself override state planning, building and environmental laws. The High Court says that even where there is undoubted federal power in an area of activity, the manner of exercise of that power remains subject to ordinary state laws of general application e.g. planning, building and environmental laws.

Nor would it be sufficient simply to pass a law exempting Commonwealth-controlled ports from state laws. High Court doctrine on section 109 inconsistency holds that a Commonwealth law cannot simply validly exclude states from an area of activity where there is concurrent constitutional power. It must actively occupy that field itself. Hence there would need to be detailed federal laws regulating planning, building and environmental aspects of the operation of ports. And that would require expensive, purpose-built federal bureaucracies to administer the whole fiasco.

If exporters actually thought about this for a moment or two, they wouldn’t be jumping for joy. They’re about to be foisted with a doubling of the regulatory compliance burden, as they have to thread their way through duplicated state and federal bureaucratic mazes.

To get an idea how utterly dysfunctional this sort of regulatory duplication and overlap is in practice, exporters only need to look at Australia’s chaotic tertiary education sector. Regional and second-tier urban universities are particularly hard-hit. They have to continuously negotiate the stifling red tape of Brendan Nelson’s bizarrely micro-management-obsessed federal Department of Education Science and Training in relation to higher education, while also satisfying the requirements of state education departments in relation to their TAFE activities (now VET – we must keep abreast of the ever-changing acronyms devised by bureaucrats with too much time on their hands). And they also have to cope with the residual overlay of half-baked neoliberal New Managerialist mumbo jumbo by producing endless corporate plans, mission statements, budgets and performance targets. Even Lewis Carroll couldn’t have imagined something so surreally silly, with feral control-freak bureaucrats demanding that universities perform, compete and do more with less, while simltaneously strangling them in red tape and collection of vast quantities of meaningless statistics.

This, folks, is what John Anderson has in store for Australia’s ports. I wonder how long it will take shipping and stevedoring companies to realise just what a profoundly stupid, productivity and profit-destroying proposal it really is.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Mark Bahnisch
2022 years ago

That was quick, Ken – welcome back!

Ken Parish
Ken Parish
2022 years ago

Mark

Only a passing flutter (no time for more anyway). I said I’d feel free to post when I got a bee in my bonnet, and I certainly have over this ports nonsense (and Howard’s New Federalism in general). Anyway, posts about legal and constitutional issues generally don’t seem to attract the sort of rigid partisan comment box slagging contest as more general political posts. Mind you, I wouldn’t have thought that a question like the legality of torture would have split on left-right lines either.

Mark Bahnisch
2022 years ago

It didn’t entirely, fortunately, Ken.

On Ando – I don’t know if you saw the 7.30 report the night after he made his intervention. The impression I got from watching was that Ando was out on a limb on this one. A number of people said that it was bizarre that he was pre-empting the government’s own taskforce, someone obviously leaked the report which does not recommend the ACCC regulating ports, no-one can figure out why the ACCC would be a good regulator for ports, Corrigan couldn’t work any of it out and Ando was spotted in animated conversation with Max Moore-Wilton who’s on the taskforce.

I suspect it’s just Ando either being a clueless loose cannon, or trying to advance some sort of agenda within the government.

Tony.T
2022 years ago

Have a nice cup of tea, Ken?

Nicholas Gruen
2022 years ago

Glad to see a post from you Ken. Without going to the substance of the issue, I can’t see the problem with the ACCC regulating ports – if its doing competition regulation of ports. That’s what it does elsewhere, and, with its national focus (and larger resources) it can be expected to do, and generally does, a better job than state competition regulators. But obviously the ACCC would not be a good regulator of other aspects of ports. If that’s intended, I agree, its pretty odd.

Jacques Chester
Jacques Chester
2022 years ago

Well said.

I’m becoming increasingly anxious that the current government doesn’t turn into the anti-Fraser: so keen to do something with their Senate majority that they simply do anything.

This centralising sounds very Whitlamite in practice. Vast bureaucracies to run around State obstacles.

One is being more and more put in mind of a perculiarly Australian star wars. Liberals turning to the dark side, as it were.

AlanDownunder
AlanDownunder
2022 years ago

Chris Corrigan is noncommittal.
http://tinyurl.com/8clgv

Ken Parish
Ken Parish
2022 years ago

Nicholas

At least from my own reading of the media coverage, the concerns to which Anderson is reacting have little or nothing to do with allegations of anti-competitive behaviour in port operations. They relate to bottlenecks caused by a combination of regulatory hold-ups with approvals for building new and expanded port facilities, and operational issues/inefficiencies. It isn’t obvious what relevant skills the ACCC could contribute in either of those areas.

Mark Bahnisch
2022 years ago

That’s why I suspect Ando was talking off his head. He’d probably heard something about the alleged problems with the Queensland Competition Council regulation of Dalrymple Bay and jumped to conclusions. The guy’s a nong.

“Farmers don’t grow on trees”.

Hope I’m not being too partisan, Ken! Laurie Ferguson is a nong too.

cs
cs
2022 years ago

yeah, that’s about where I got to on this one too Ken … Ando was not so much talking off the top of his head as blowin’ out his arse.

observa
observa
2022 years ago

I’d be very suspicious there’s money at stake, with the relevant states milking revenue from their ports. The Feds are probably not happy with that, similar to the national electricity market push. Federalism aside, if the states are getting revenues, they’ll fight like hell. Contrast that with SA ‘it’s stuffed’ Health Minister wanting to hand health to the Feds. Talkback radio was not impressed, recalling the old ‘Canberra Octopus’ line again here. They were of the view that if that’s what Lea Stevens wanted, well why not give them the lot and get rid of her and her buddies altogether.

As for following local planning and building guidelines, I have my doubts that would be the case. Take the Adelaide airport now under private admin. Last year they opened a new Harbourtown shopping complex on the western perimeter. There was a major gripe about inadequate parking and egress (driven by nearby Glenelg traders) and the mayor of West Torrens Council stated they had no control over planning on Fed land. The operators merely consulted them out of courtesy. Apparently an old folks home is to be built on the airport too now. I guess the noise insulation fare levy for the benefit of householders on the flight path won’t be drawn upon for obvious reasons.

Can I suggest another legal post for you Ken? Perhaps a synopsis of citizen’s rights to sue their govt for damages. ie Do Alavarez and Rau have this right against DIMIA, or are they restricted to ministerisl ex-gratia payments? I understood victims of the Voyager disaster and Maralinga tests could not sue. Are our 3 tiers of govt and their quangos(really taxpayers) fair game or not?

jen
jen
2022 years ago

observa

Are our 3 tiers of govt and their quangos(really taxpayers) fair game or not?

such a cheerful fellow.

I can answer this one.
Yes.
Governments can be sued.
And the damage payments are taken out of the responsible minister’s wages and super. And out of the taxes of the folks who voted them in.

Ken Parish
Ken Parish
2022 years ago

I knew there was a reason why you weren’t a lawyer, jen. Taking a flippant answer seriously just for a moment, that sort of system might well make politicians much more careful about their actions. The trouble is, it would probably also mean that no-one would ever stand for election and no-one would vote (at least no-one with any property or assets to lose). But then, the latter dilemma (not voting) isn’t likely to worry you, is it?

Ken Parish
Ken Parish
2022 years ago

observa

Strange as it may seem, the first part of jen’s answer was actually correct. Governments CAN be sued. Traditionally in British-based legal systems, the Crown was immune from suit (although that’s a gross generalisation that always needed qualification), but section 64 of the Judiciary Act 1903 (Cth) provides:

“In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.”

There are similar provisions in all states and territories. In other words, crown immunity from suit has been substantially abolished, and governments can be sued in tort (e.g. for negligence) or contract just like a private citizen.

Since wrongful imprisonment is a tort, prima facie Ms Rau and Ms Solon have strong cases. The Voyager and Maralinga cases were problems in large part because the events occurred so long ago and the Statute of Limitations potentially barred civil suits by the time people realised that they had been harmed. Again that’s a gross over-simplification, and there’s a long and complicated story surrounding the Voyager litigation, with successive governments promising not to enforce limitation provisions, then reneging, then High Court challenges etc etc. The bottom line for present purposes, however, is that Cornelia Rau could certainly sue IMO and wouldn’t be statute (of limitations) barred.

observa
observa
2022 years ago

Thanks for that Ken (and Jen I think). With the Maralinga and Voyager cases I was thinking perhaps there was no right of tort for service personnel. Rather, they were covered by special Repat provisions for obvious reasons. I gather false imprisonment tort rights does not include initial guilt by jury and subsequent acquittal on appeal or pardon?(eg Lindy Chamberlain)

I guess in Alavarez and Rau’s cases any lump sum payout would be clawed back under Centrelink assets testing for benefits, so given their medical conditions, the method of compensation may be academic. Might be interesting to see if a lump sum for Alvarez induces her to stay put in the Phillipines as she has joint citizenship and has stated she’s reasonably comfortable there. That might be a minor political coup for the Govt, given the criticism over DIMIA’s actions. Wouldn’t mind betting they’ve thought about it and canvassed the option.