Costello plays the Constitution card again

Federal politics hasn’t been this action-packed for constitutional law buffs since the time of the Whitlam government, when I was studying the subject at Sydney Uni. That’s fairlt ironic given that we currently have a “conservative” government which has hitherto paid rather more than lip service to federalism.

No sooner has the Howard government tested the outer limits of the corporations power with its IR legislation than Treasurer Peter Costello flags the probability of another venture into constitutional centralism in relation to uranium sales to China:

Both the WA and Queensland Labor governments oppose uranium mining in their states.

But, with agreements signed with China this week opening the way to Australia supplying uranium, Mr Costello believes there is a way to override the state objections.

“It may be argued that, under our trade and commerce power, and it may be argued under our external affairs power, that the commonwealth has the ability to facilitate the trade and commerce of uranium and the export of uranium,” he told reporters.

In fact, the predominant High Court view of the scope of the trade and commerce power (section 51(i)) is that it doesn’t authorise federal laws regulating the mining or manufacture of a product (as opposed to trade and commerce once the product has been brought into existence). Manufacture is viewed as a concept logically and constitutionally distinct from and prior in time to trade and commerce.

There is, however, at least one High Court decision (O’Sullivan v Noarlunga Meat) which holds that the Commonwealth can in some restricted circumstances regulate production/manufacture. The facts concerned the ablity of the Commonwealth to regulate the export meat industry, and the Court held that it could. However, the Court’s reasoning turned heavily on the fact that there were detailed international rules and regulations concerning quality control and the like in relation to “meat for export”, which could therefore be viewed as a single conception including not only export and sale but also manufacture for that purpose.

Of course, there is also a quite detailed international regulatory regime in relation to nuclear materials, although few aspects of that regime relate to mining (as opposed to power generation and handling of nuclear waste material). I doubt that the O’Sullivan principle would be held to apply to permit regulation of uranium mining under Constitution section 51(i), but it’s at least arguable.

As for the external affairs power, it would depend on the specificity of the agreement Australian and China have just signed. If it clearly requires (either expressly or by implication) Australia to take steps to open new mines to meet Chinese demand, then there is no doubt that the external affairs power would support a Commonwealth law overriding State objections to them. However, if the agreement is merely a fairly general one one whereby Australia agrees to open its markets to the Chinese in return for guarantees in relation to nuclear proliferation and waste disposal and the like, it would be more doubtful. Nevertheless, even if the current agreement is too vague in its terms for constitutional purposes, there is nothing to prevent Australia later signing a more specific protocol to that agreement, which would be sufficient to support a federal law to override recalcitrant States.

Either way, it looks very much like the ALP’s “no new uranium mines” policy is a dead duck, unless Howard’s IR legislation continues to prove so hugely unpopular that his government gets kicked out next time despite its huge majority. I can’t see it somehow.

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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