A. To what extent, if any, is the Uranium Mining Act a law authorised by the corporations power (Constitution s 51(xx))?

B. To what extent, if any, is the Uranium Mining Act a valid implementation of Article 4 of the Convention for the Protection of the World Cultural and Natural Heritage (extracted below)? Would your advice be otherwise if s 4(c) of the Act did not include the words ‘if prohibited activity undertaken on the property would have the potential to affect World Heritage values under the Convention.’?

C. Another lawyer has commented as follows:
‘The High Court has said that a law may be characterised by its practical operation. Assuming all uranium mined in Australia is exported then the Uranium Mining Act is dealing with overseas trade. The High Court could and would conclude that the Act is a law within the trade and commerce power (Constitution s 51(i)). If the facts change then the characterisation could be reconsidered.’
Is this sound advice?

Question A

That the Corporations Power19 is a plenary one, as Mason CJ, Toohey and McHugh JJ stressed in Tasmanian Dam3, gives rise to two questions. Firstly, how are the corporation typologies defined? And secondly, how does the plenary power act on these corporations?

Foreign corporations refer to a one “formed outside the limits of the Commonwealth” as defined by the Incorporation Case9. The next category, trading, is defined by analysis of the corporation’s current activities. Adamson’s Case13 was reinforced in Tasmanian Dam3 where it held the Commission to be a trading corporation as its activities included trading on a substantial scale. For financial corporations, in Re;Ku-ring-gai7, Deane J referred to activities or services “dealing in finance”. The same ‘substantial activities’ method was also used in State Superannuation Board15 to make out a financial corporation. Also, if a corporation has not undertaken activities yet, Fencott v Muller4 used the purpose of formation of the corporation to define its type. On the second issue, we ask what the scope of powers is. In Workchoices17, the majority approved Gaudron J’s opinion in Re Pacific Coal11 that “power conferred by s51(xx) … extends to the regulation of the activities, functions, relationships and the business of a corporation … and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.” Hence, under s51(xx)19, it is possible to regulate any of the above mentioned aspects of a corporation. Regulation of people according to the above is also possible. Another aspect of s51(xx)19 was decided in the Incorporation Case9 where the regulation of incorporation was restricted.

Now that s51(xx)19 is understood, we look at s7 of the Uranium Act (“The Act”).  S7(1) regulates the activity of an individual. However, according to Workchoices17, this individual’s actions must affect a s51(xx)19 corporation. Therefore s7(1) is invalid under the Corporations Power if there is no referral to how the individual’s activities may affect a corporation. S7(2) involves the three types of corporations explained above. S7(2)(a) regulates activities of a foreign corporations. As The Act refers to a foreign corporation as falling within the meaning of s51(xx)19, Workchoices17 allows for the regulation of its activities, resulting in the validity of s7(2)(a) under the Corporations Power. This is the same for s7(2)(b) which regulates trading and financial corporations. Lastly, the effect of s7(2)(c) is incorporation, which is an exercise not falling under the Corporations Power as seen in the Incorporation Case9 and is therefore invalid.

Question B

Matters concerning geographical externality to Australia and also relations with other countries are held to fall under the External Affairs Power, as seen in Polyukhovich12. In R v Burgess14 it was concluded that an act was valid “for the purpose of carrying out and giving effect to” an international convention. The External Affairs Power20 is therefore a head of power under which Australia may implement legislation to give effect to international treaties.

However, what is the scope of this power regarding the treaty implementation? In Koowarta6, Stephen J used the test of ‘international concern’. This test was used again in Tasmanian Dam3. However, matters of ‘international concern’ may be seen to cover almost any topic, resulting in a limitless head of power. This could not be so, and in the Second Airlines Case1, Barwick CJ limited the power of the Commonwealth to use ‘appropriate’ means. This line of reasoning followed in Tasmanian Dam3 where Deane J held that “the law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs” Furthermore, that the law is subject to the express and implied Constitutional prohibitions and also the treaty it implements must be a genuine one, was held in R v Burgess14.

The aim of the convention here is the protection of the cultural and natural heritage of the world. In order to achieve this aim, property around the world must be identified as worthy of protection because of certain inherent characteristics which are rare and outstanding. Looking at s4(a) of The Act, it refers to property included in the world heritage list provided for in article 11. The Act identifies the properties in this list as properties where the defined activity is prohibited. As long as the prohibited activity is of a harmful nature to the outstanding characteristics of the identified property, s4(a) is a reasonably considered to be appropriate and adapted for the protection of the world’s cultural and natural heritage. The prohibited activity in this case being activity regarding uranium mining, if allowed on certain property, would result in damage of its outstanding characteristics. Therefore, s4(a) is a valid implementation of article 4 of the convention.

With specific regards to the controversy in Kakadu National Park, the prohibition of uranium mining activity in the park would therefore depend on the identification of the park to be included in the world heritage list. The park, for that reason, would need to have characteristics valuable enough for inclusion in that list.

s4(b) identifies any part of a property included in the World Heritage List. The validity of this depends again on the issue of whether the prohibited activity causes harm to the outstanding value of the property. It is also dependant on what is included in the list. If the whole of Kakadu National Park was identified in the list, and only a small proportion of Park was held to be of outstanding value, then s4(b) would be seen to be inappropriate as it would not serve the purpose of the convention. If however, the list identifies only the proportion of the park which exhibits the values to be protected, then s4(b) is validly implements the purpose of the convention.

s4(c) regulates property adjacent or near to that identified in the list. Solely because activity undertaken on the adjacent property may have potential to harm the values of the convention, it does not mean that the activity will be undertaken. However, if The Act does not prevent harm from occurring to the identified property, it would also have failed in its implementation of the aims in the convention. Regulation in adjacent or nearby property is therefore seen to be considered appropriate and adapted to implement the aims of the convention. If however, the words “if prohibited activity undertaken on the property would have the potential to affect World Heritage values under the convention” were taken out of The Act, s4(c) would not be valid as it would not be reasonably proportionate to the aims of the Convention.

Question C)

We first look to see if a law may be characterised by its practical operation. In Bank Nationalisation2, the purpose or subject matter of the law in question is analysed to determine if it can be characterised under a head of power. The High Court, in Grain Pool5, held that both practical and legal operation of a law was crucial in determining a sufficient connection with the head of power. The lawyer in question here missed to mention that the legal operation is also to be looked at.

Trade “with other countries” comes under the Trade and Commerce Power18. Therefore, we look to see if The Act falls under this head. Murphyores v Commonwealth8 held this head to be a non-purposive power, therefore only the subject matter of The Act has to fall within it. In McArthur v QLD16, it was said, “All the commercial arrangements of which transportation is the direct and necessary result form part of trade and commerce.” Therefore, we can see that the topic of export falls under s51(i)18. Thus The Act’s subject matter has to relate to export. Assuming all uranium is exported, The Act’s subject matter regarding the regulation of uranium mining, would affect export and therefore the High Court would conclude that The Act is within s51(i)18. This is akin to O’Sullivan v Noarlunga10 where Fullager J explained that the regulations were valid as implied incidental power was conferred by s51(i)18 to regulate the production of goods to be exported. Fullager J further stated that the Commonwealth power extended to the supervision and control of all acts carried out for export.

Characterisation of The Act requires transportation and movement across a border, as Dixon J identified in Bank Nationalisation2. Therefore The Act does not fall under s51(i)18 with intrastate or no trading.

END NOTES

1. Case Law

Airlines of New South Wales Pty Ltd v New South Wales (No 2) (Second Airlines Case) (1965) 113 CLR 54.
Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1.
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.
Fencott v Muller (1983)152 CLR 570.
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479.
Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 22 ALR 621.
Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1.
New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482.
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565.
Pacific Coal Pty Ltd, Re; Ex parte Construction Forestry, Mining and Energy Union (CFMEU Case) (2000) 203 CLR 346.
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501.
R v Federal Court of Australia: Ex parte WA National Football League (Adamson’s Case) (1979) 143 CLR 190.
R v Burgess; Ex parte Henry (1936) 55 CLR 608.
State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282.
W & A McArthur v Qld (1920) 28 CLR 530.
New South Wales v Commonwealth (Work Choices Case) (2006) 231 ALR 1.

2. Legislation

Australian Constitution s 51 (i).
Australian Constitution s 51 (xx).
Australian Constitution s 51 (xxix).