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.