B. Ejemplos
B.3. Problemas de Preferencias con Restricciones en las Dependencias
To be supported by the external affairs power, Commonwealth legislation must be reasonably appropriate and adapted to implementing a treaty.45 However, if part of the EPBC Act were considered disproportionate to a treaty it sought to implement, then it could potentially be supported by another head of power (for example, the corporations power).46
This is so due to two constitutional considerations. Firstly, there is no constitutional requirement preventing a Commonwealth Act finding support from heads of power other than that intended by Parliament:
A law enacted by a Parliament with power to enact it, cannot be unlawful. The question is not one of intention but of power, from whatever source devised. … [A provision of a statute] can be justified, in my opinion, if it is competent under any of the powers vested in Parliament, whatever the title of the Act, and whatever indications there are in the Act as to the precise power under which it may be suggested that Parliament purported to act.47
Secondly, the High Court’s expansive interpretation of the external affairs power is consistent with its approach to the Australian Parliament’s other head of power most readily able to be used for environmental regulation, namely that with respect to corporations. Its potential utility derives from:
• the fact that most of the ‘actions’ the EPBC Act regulates (ie those significantly impacting MNES) are undertaken, in whole or in part, by corporations; and
• the constitutional law summarised below.
45 Tasmanian Dam Case (1983) 158 CLR 1 per Mason J.
46Australian Constitution s 51(xx). 47
Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36, 135 (Starke J).
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The Constitution empowers the Australian Parliament to legislate regarding ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.’48 The High Court used this ‘corporations power’, in addition to the external affairs power, to find for the Commonwealth in the Tasmanian Dam Case (the State-owned Hydro-Electric Commission (HEC) being a ‘constitutional corporation’).49However, it was the Howard Government’s successful defence50 of its Work Choices industrial relations legislation which saw interpretation of the corporations power specifically, and (through the Court’s reasons), Commonwealth power generally, reach a new high water mark.51
In the wake of such High Court decisions since passage of the EPBC Act, the corporations power, in particular, could now be used to take the Act much further – if Parliament so desired – as has occurred through national work health and safety law:
The view of the corporations power which was taken in the Work Choices Case left no doubt that a new era of federal legislative authority had begun. Use of that authority may be seen in the decision by the Federal government to deal nationally with occupational health and safety, a field traditionally the province of the States. The [Bill which is now the Work Health and Safety Act 2011 (Cth) provides] model work health and safety laws throughout Australia. The initiative has the support of the States.52
Justice Buchanan added that analysis in the Work Choices Case:
confirmed an ample source of constitutional authority to regulate very many aspects concerning and touching corporations in a way which will doubtless see s 51(xx) used as a dominant source of power hereafter in a way never envisaged in 1900.53
48Australian Constitution s 51(xx). 49 (1983) 158 CLR 1.
50
New South Wales v Commonwealth ('Work Choices Case') (2006) 229 CLR 1.
51 See eg Justice Robert J Buchanan, above n 42, 31-4 explaining the case and its constitutional
implications. 52 Ibid 34. 53 Ibid 34. 67
The corporations power could, therefore, be used to both:
• reinforce the EPBC Act should questions arise as to its constitutional validity; and
• potentially (were Parliament willing) to strengthen/extend the EPBC Act’s environmental ambit so as to overcome some of its limitations which this thesis will identify.
The Work Choices legislation and consequent Work Choices Case54 were driven by Prime Minister Howard, a conservative lawyer long-committed to such an industrial relations system. In industrial relations, Prime Minister Howard’s Work Choices legislation ‘replaced more than a century of legislation … in a way which has radically overhauled the earlier arrangements.’55 He thus achieved his industrial relations legislation through radical – at least in constitutional terms – Commonwealth centralisation at the expense of State industrial relations law.
By contrast, in natural resource management Prime Minister Howard was strongly committed to ‘State’s rights’. In particular, he opposed, from Opposition, Prime Minister Hawke’s 1980s World Heritage cases; then his government pursued co- operative federalism through the EPBC Act, RFAs and the RFA Act. Howard’s commitment to industrial relations reform clearly outweighed his general federalist tendencies – or perhaps he saw the end justifying the constitutional means. On natural resources, Prime Minister Howard oversaw a consistently ‘States rights’/federalist approach to drafting both the EPBC Act and, as explained in Chapter 3, the RFA Act. The EPBC Act enabled delegation to the States, while the RFA Act entrenched and sought to ‘future-proof’ their ‘resource security’ under the RFA regime.
54 (2006) 229 CLR 1. 55
Justice Robert J Buchanan, above n 41, 30.
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