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External Affairs Power and Treaty Implementation

    The relevant facts of the case are that Urangen Ltd was licensed and authorized by the Commonwealth Minister for the construction and operation of the nuclear plant in Latrobe Valley.[1] The Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) was enacted on 3 December 2021 in accordance with the recommendation of the Joint Ministerial Committee’s meeting. The meeting was held as per the bilateral treaty between Kernistan and Australia. [2]

    While the Parliament is entitled to create policies in relation to the exercise of its external powers under the Constitution,[3] a treaty cannot be considered to be the law of the land as soon as it comes into force. This was established by Dixon J. in the Chow Hung Ching case (1948), wherein the court stated that treaties only create a commitment for the Crown externally and do not create an impact on the duties and rights of the Crown’s subjects.[4]

    Establishing the validity of the treaty is crucial as the concerned legislation of Nuclear Materials (Cooperation with Kernistan) Act 2021 was enacted in accordance with the treaty between Australia and Kernistan. In relation to this, the High Court of Australia has confirmed that the ‘external authorities’ power of the Parliament allows it to create legislations for giving effect to the Conventions and international agreements that Australia is a part of. [5] The regulations of such legislation must give effect to the treaty and should not in any way depart from the terms of the treaty as this would lead to the legislation not being bona fide in nature. [6]

    Lathan CJ had also held that treaties and international agreements aimed at the preservation of friendly relations with other nations are also an aspect of the external affairs powers granted under section 51 (xxix) of the Constitution.[7]  In this regard, the treaty was also helpful in preserving the diplomatic relations between Australia and Kernistan and resulted in mutual cooperation between the two countries after a lot of discussion regarding the trade of uranium.

    As per the R v Sharkey (1949) case, the law should be related to Australia’s relationship with another country or a number of countries. [8]Gummow and Crennan J have noted that the pursuit of comity and advancement of foreign relations is a significant subject matter in relation to the power of external affairs granted to the Federal Parliament.[9] Accordingly, the court has confirmed in several instances how the creation of a treaty may be considered valid if it is undertaken for the purpose of preserving friendly relations and formed in accordance with the doctrine of comity. In this regard, the treaty was in alignment with the precedence set under the Australian legal regime.

    In accordance with the treaty, the Joint Ministerial Committee meeting was held on 18 October 2021.[10]

    The legislation concerned with the legal issue of the case was created in accordance with the recommendations that were derived through the meeting of the Joint Committee. The development of legislation under section 51(xxix) of the Constitution is supported if it is based on recommendations that can be considered to be “appropriate” implying they are reasonable and related to the Convention associated with the recommendations.[11] Such recommendations that are of an international nature also give rise to an obligation, and this serves as the basis of the enforcement of the domestic legislation.[12]

    Subject Matter of External Affairs Power

    In the current scenario, the recommendations were of an international nature because the diplomats from Kernistan were also involved in the Joint Ministerial Committee meeting, and the recommendations provided by them on 18 October 2021 gave rise to the obligation of promoting a nuclear power industry in Australia along with the technological assistance from the Government of Kernistan. The Nuclear Materials (Cooperation with Kernistan) Act 2021 was developed in accordance with these recommendations and can be considered to be a valid Act of the Commonwealth.

    The validity of the legislation also makes the sections and provisions of the legislation constitutionally valid. Furthermore, the provisions of the legislation that is enacted as per the recommendations must be capable of adopting the recommendations “fully and exactly”.[13] In the current scenario, the recommendations of the Joint Ministerial Committee required taking measures for developing a nuclear power industry in Australia. The “dual conformity” principle must apply when the legislation is based on the recommendation. This implies that the provisions of the Act should comply with the recommendations, and the recommendations should be compliant with the treaty or international Convention in concern. [14]

    In accordance with the recommendations, section 5(1) of the Act allows the Minister to license and authorize the use of nuclear power generators with the aid of Kernistani technology.[15] Thus, a significant treaty obligation is being met through the implementation of the legislation as the provision enables the development of a nuclear industry in Australia through the means of the licenses granted by the Minister. Section 5(1) helps give effect to the obligations under the Treaty between Australia and Kernistan while also giving effect to the recommendations that were derived from the Joint Ministerial Committee’s meetings.

    The legislation must “confirm” to the treaty and must not be for the purpose of enforcing anything beyond the treaty. [16] In the context of section 5(1), the matter was directly in relation to the regulations within the treaty.[17] The second part of section 5 states that subsection 1 would be considered effective irrespective of any Territory or State based legislation.[18] This allows the legislation to override any State or Territory based laws that are in contravention to section 5(1) of the Act.[19]The matter being an ‘international concern’ is a crucial criterion when considering the legal validity of legislation or provision passed by the Parliament under their external authority powers.[20] While the subject matter of section 5(2) of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) is not directly of international concern or in relation to the obligations of the Australian Government with regards to the treaty between Australia and Kernistan, the subsection is crucial for giving full effect to the development of a nuclear industry in Australia. In the Richardson case (1988), the Commonwealth could legislate under the external powers granted through section 51(xxix) of the Constitution with regards to matters related to treaty obligations as well as any matters that are reasonably “incidental” to such obligations.[21]

    While treaty obligations which are known to exist must be capable of being discharged through the law, any obligations that were reasonably apprehended to exist could also be discharged through the external affairs powers.[22] In the current scenario, section 5(1) of the Act helps discharge the known obligations under the treaty between Australia and Kernistan, the enforcement of section 5(2) could be considered necessary for the enforcement of matters incidental to such obligations. [23]

    Validity of Provisions

    Without the legislative effects of section 5(2) of the Act, the development of the nuclear power industry in Australia would not be possible due to the opposition from various states in relation to the development of the nuclear industry and restrictive legislative frameworks, such as Nuclear-Free Victoria Act 2021 (Vic). In this regard, section 5(2)  acts as a form of overriding provision that disables any State or Territory based policies not allowing for the development of the nuclear power industry in the State. The application and enforcement of section 5(2) of the Act is extremely important for the purpose of giving an operational effect to section 5(1). Without the application of section 5(2), the obligations of the Australian government under the Treaty between Australia and Kernistan cannot be fulfilled as the State policies were not supportive of the idea of the development of a nuclear power industry in Australia. Thus, section 5(2) helps resolve this issue and is necessary for giving effect to section 5(1) and for the purpose of promoting a nuclear power industry in Australia. In this regard, the legislation also repealed the provisions of a legislative framework of the Commonwealth so that the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) could be given full effect.[24] The relevant provision of the Environment Protection and Biodiversity Conservation Act 1999 was in contravention of section 5(1) and was thus repealed.[25] Section 5(2) of the Act also serves a similar purpose and helps give a full legal effect to section 5(1).[26] Thus, section 5(2) can be considered to be fulfilling the purpose of the incidental obligations relating to the treaty, as confirmed in the Richardson case (1988).[27]

    Conclusion

    In conclusion, section 5 of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) is valid as it helps give legal effect to the treaty obligations of Australia under the nuclear energy treaty between Australia and Kernistan. It also fulfils the obligations of the recommendations that were given in accordance with Article 4 of the treaty. While section 5(1) directly fulfils Australia’s obligations in accordance with the recommendations of the Joint Ministerial Committee, section 5 (2) is necessary for giving full legal effect to section 5(1). Thus, section 5 is valid, and Urangen Ltd.’s activities are legal in accordance with the framework of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth).

    The second issue is with regards to the validity of sections 6 and 7 as they are applicable to Urangen Ltd.

    Constitution of Australia 1901, s. 5

    Constitution of Australia 1901, s. 109

    Nuclear Free Victoria Act 2021, s. 6

    Nuclear Free Victoria Act 2021, s. 7

    Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth), s. 5(2)

    The relevant facts of the case are that Urangen Ltd. was engaging in the construction and operation of a nuclear power plant with the aid of Kernistani technology in Victoria in accordance with section 5(1) of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth). While the construction and operation were valid and legal under the Commonwealth legislation, it was forbidden under the state level legislation of Victoria, namely the Nuclear Free Victoria Act 2021. Section 6 of the Act declares Victoria to be a nuclear free zone, while section 7 of the Act makes the construction, generation and building of nuclear power generators in Victoria to be unlawful.[28] This is in direct contravention to the Nuclear Materials (Cooperation with Kernistan) Act 2021.[29] This reflects inconsistency between the Commonwealth laws and State laws of Victoria in relation to the development and operation of nuclear power generators.

    Conformity Principle

    In relation to the above facts, section 109 of the Constitution would be applicable. The section allows a commonwealth law to prevail and override state laws in case the state law is inconsistent with the commonwealth law. This is allowed to the extent of the inconsistency of the invalidity. [30] This section is further read with section 5 of the Constitution, which makes all laws of the Parliament of the Commonwealth legally applicable to the people of the States as well as the courts of Australia. Section 5 further states that the laws of the Parliament of the Commonwealth would be legally applicable regardless of the laws of the States. Due to such provisions, section 5 and section 109 are often read together by the courts when deciding cases related to the inconsistency of state laws with regard to Commonwealth laws.[31]

    With the application of section 109 and section 5 of the Constitution, the state law would become invalidated. However, this does not imply that the State Parliament did not have the power to pass such legislation but simply implies that the operative force of the State law would not be valid due to the overriding effect of the legislation of the Commonwealth Parliament.[32] This implies that in case the overriding law was to be repealed, the State law would come into force again as it would not be inconsistent with any of the legislation passed by the Commonwealth Parliament.[33] The High Court of Australia has also applied the doctrine of “implied intergovernmental immunities” in cases related to contradicting laws of the State and the Parliament.[34] This reflects how the laws of the Commonwealth, as well as the State, are fully operational upon their respective subjects on which the Constitution has given them the power to legislate.[35] The Engineers’ case has further established that this doctrine of implied intergovernmental immunities would be applicable subject to the provisions of section 109 of the Constitution.[36] This also reflects how the ‘federal government’ system operates in Australia and how overlapping laws of the State and Commonwealth are to be treated.[37] Since the provisions of sections 6 and 7 of the Victorian Act are inconsistent with section 5 of the Commonwealth Act, section 109, read with section 5 of the Constitution, would become operational in the case.

    An important consideration for section 109 to be applicable in case of overlapping and inconsistent State and Commonwealth laws is that both the legislative frameworks should be constitutionally valid. The law should not be unconstitutional or ultra vires and must be validly enacted with respect to the provisions of the Constitution.[38] In the current scenario, section 5 of the Commonwealth Act was constitutionally valid and was enacted with regard to giving effect to the treaty provisions between Australia and Kernistan. The State government has ‘residual powers’ to make laws for matters that are not listed under sections 51 and 52 of the Constitution and for the purpose of ensuring good governance.[39] Since nuclear powers are not listed as a subject matter under sections 51 and 52 of the Constitution, Victoria had not acted unconstitutionally by creating the Nuclear-Free Victoria Act 2021. However, sections 6 and 7 of the Act are directly inconsistent with section 5 of the Commonwealth legislation as there is a logical impossibility for an entity to be in obedience to both laws at the same time.

     The test of logical impossibility is applicable when one legislation commands what the other legislation forbids.[40] Since there is no way of complying with both the legislations at the same time, the laws are directly inconsistent, and section 109 of the Constitution can be successfully applied in the current scenario.

    Conclusion

    In the current scenario, section 109 of the Constitution would be applicable. This implies that the provisions of the Victorian legislation that forbid Urangen Ltd. from operating and constructing a nuclear generator, namely sections 6 and 7, would not be valid. Section 5 of the Commonwealth legislation would override the Victorian legislation, and thus, the injunction of the Attorney General for the State of Victoria cannot be applicable to Urangen Ltd. In conclusion, Urangen Ltd. has the legal right to construct and operate a nuclear power generator in Victoria.

    Therefore, it is advisable to present these arguments to the court in relation to Urangen Ltd.’s legal rights under the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth), which has been created as per a valid treaty under the external affairs powers of the Parliament as per section 51 (xxix) of the Constitution. The provisions of the Nuclear-Free Victoria Act 2021 (Vic) are directly inconsistent with the provisions of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth), and with the application of section 109 of the Constitution, Urangen Ltd. is acting in accordance with its legal rights. Please feel free to contact me for any further advice and legal assistance on the matter.

    Elise Edson, ‘Section 51(xxix) Of The Australian Constitution And ‘Matters Of International Concern’: Is There Anything To Be Concerned About?’ (2008) 29 Adelaide Law Review  269

    Kathleen E. Foley, ‘Australian judicial review’ (2007) 6(2) Washington University Global Studies Law Review 281

    Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129

    Carter v Egg & Egg Pulp Marketing Board [1942] HCA 30

    Chow Hung Ching v The King (1948) HCA 37

    Commonwealth v Tasmania (1983) 158 CLR 1

    D'Emden v Pedder (1903) 2 Tas LR 146

    Industrial Relations Act Case (1996) 187 CLR 416

    Koowarta v Bjelke-Petersen [1982] HCA 27

    McBain v Victoria (2000) 99 FCR 116

    Pape v Commissioner of Taxation (2009) 238 CLR 1

    R v Burgess; Ex parte Henry [1936] HCA 52

    R v Sharkey (1949) 79 CLR 121

    Richardson v Forestry Commission (1988) HCA 10

    University of Wollongong v Metwally (1984) 158 CLR 447

    Constitution of Australia 1901

    Environment Protection and Biodiversity Conservation Act 1999

    Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth)

    Nuclear-Free Victoria Act 2021 (Vi

    Agreement between the Government of Australia and the Government of Kernistan on Cooperation in the Peaceful Uses of Nuclear Energy (signed and entered into force 1 April 2021)

    Parliamentary Education Office, ‘Three levels of government: governing Australia’, PEO (Webpage, 2022) < https://peo.gov.au/understand-our-parliament/how-parliament-works/three-levels-of-government/three-levels-of-government-governing-australia/> accessed 20 May 2022

    Cite This Work

    To export a reference to this article please select a referencing stye below:

    My Assignment Help. (2022). Legal Validity Of Nuclear Materials (Cooperation With Kernistan) Act 2021. Retrieved from https://myassignmenthelp.com/free-samples/laws6006-constitutional-law/power-and-treaty-implementation-file-A1E712A.html.

    "Legal Validity Of Nuclear Materials (Cooperation With Kernistan) Act 2021." My Assignment Help, 2022, https://myassignmenthelp.com/free-samples/laws6006-constitutional-law/power-and-treaty-implementation-file-A1E712A.html.

    My Assignment Help (2022) Legal Validity Of Nuclear Materials (Cooperation With Kernistan) Act 2021 [Online]. Available from: https://myassignmenthelp.com/free-samples/laws6006-constitutional-law/power-and-treaty-implementation-file-A1E712A.html
    [Accessed 25 February 2024].

    My Assignment Help. 'Legal Validity Of Nuclear Materials (Cooperation With Kernistan) Act 2021' (My Assignment Help, 2022) <https://myassignmenthelp.com/free-samples/laws6006-constitutional-law/power-and-treaty-implementation-file-A1E712A.html> accessed 25 February 2024.

    My Assignment Help. Legal Validity Of Nuclear Materials (Cooperation With Kernistan) Act 2021 [Internet]. My Assignment Help. 2022 [cited 25 February 2024]. Available from: https://myassignmenthelp.com/free-samples/laws6006-constitutional-law/power-and-treaty-implementation-file-A1E712A.html.

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