Constitutional Law Assessment Answers

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Assignment Details:

• Words: 3000

 

N.B. The treaty between Australia and Kernistan (itself a fictitious country) and the Commonwealth and Victorian legislation given to you in this question are, along with the facts in this factual scenario, fictitious. I am well aware that beyond the confines of this assessment task there may well be real, extant laws (both State and Commonwealth) which would apply to the set of facts described in this scenario (viz. the construction and operation (etc.) of a nuclear power plant in Victoria). I am NOT asking you to research any of those laws. An assignment in Constitutional Law is different. I am giving you a hypothetical set of facts along with some hypothetical legislation governing that set of facts and asking you to apply (actual) constitutional law to these hypothetical facts and this hypothetical legislation. For the purposes of this assessment item the relevant laws (both State and Federal) on the construction and operation (etc.) of a nuclear power plant in Victoria are fully contained within this question. You are to apply (actual) constitutional law to the (hypothetical) facts and (hypothetical) legislation as described below.

 

Between May 1979 and January 2021 Australia had entered into 25 bilateral treaties on nuclear cooperation.¹ Such agreements are intended to ensure that all of Australia’s uranium is exported for exclusively peaceful purposes, and only to countries and parties with which Australia has a bilateral nuclear cooperation (safeguards) agreement. These agreements ensure that Australia’s nuclear exports are handled in a manner consistent with Australia’s uranium export policy.

 

For many years Australia has been a major producer and exporter of uranium but has had no domestic nuclear electricity industry. Kernistan, a country in Central Asia, on the other hand is heavily reliant on nuclear power generation — and has in fact become something of a world leader in the development of nuclear technology for electricity generation — but has no uranium reserves of its own and is wholly reliant on imported uranium to meet its needs. Kernistan (like Australia) is a signatory to the multilateral Treaty on the Non-Proliferation of Nuclear Weapons and is designated as a non-nuclear weapons state under that treaty.

 

The Government of Kernistan had long been keen to import uranium from Australia for use in electricity generation but the firm policy of successive Australian governments was to export uranium only to such countries covered by a bilateral nuclear cooperation treaty with Australia. Until recently, no such treaty between Australia and Kernistan existed, a major sticking point being the insistence of Kernistani officials on inserting into any treaty a provision whereby Australia undertakes to develop a domestic nuclear power industry using Kernistani technology in exchange for the Kernistani Government agreeing to import at least 80% of its required uranium from Australia. These were terms that no Australian Government was willing to accept.

 

Even though the treaty in this question is fictitious (which means you won’t find it outside the confines of this question) if you are interested in finding out more in general about treaties of this kind the following webpage may be of interest: https://www.dfat.gov.au/international-relations/security/non-proliferation-disarmamentarms-control/policies-agreements-treaties/nuclear-cooperation-agreements/australias-network-of-nuclearcooperation-agreements.

 

In light of increased difficulty in ensuring an adequate uranium supply from other markets, together with the longstanding Australian Government policy of a moratorium on domestic nuclear power generation, in September 2017 the Government of Kernistan dropped its policy of insisting that Australia agree to develop a domestic nuclear industry using Kernistani technology in exchange for Kernistan agreeing to import the bulk of its uranium from Australia. Following this, negotiations between Australia and Kernistan on a nuclear cooperation treaty began in October 2017.

 

In June 2020, at the last federal election, the then Opposition Advance Victoriously Party (AVP) went to the polls with a campaign promise to end Australia’s moratorium on domestic nuclear power generation (the legislative basis of which is contained in s 140A(b) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)) and to develop a nuclear power industry in Australia to replace (over the next several decades) Australia’s fleet of coal-fired power stations. The Advance Victoriously Party was elected with a small parliamentary majority. Not long after the election, in July of 2020 the newly elected Federal Government established a commission of inquiry to investigate and report on “the necessary steps to replace Australia’s reliance on coalfired power with nuclear power over the next three decades”. The commission of inquiry was due to deliver an interim report in February 2021 and its final report in October 2021.

 

In its interim report the commission of inquiry noted, inter alia, the respective constitutional positions of the Commonwealth and the States in Australia — in particular that there was considerable debate about the extent to which the Commonwealth Parliament, as a parliament of enumerated powers, had the constitutional power to legislate to achieve the policy aim of establishing a domestic nuclear power industry without the cooperation of the States.

 

On 1 April 2021 Australia and Kernistan finalised their agreement on nuclear cooperation and entered into a bilateral treaty. The treaty provides relevantly as follows:

 

AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF KERNISTAN ON COOPERATION IN THE PEACEFUL USES OF NUCLEAR ENERGY

 

The Government of Australia and the Government of Kernistan (hereinafter referred to as the “Parties” and each a “Party”) have agreed as follows:

 

Article 1 – Scope of Cooperation

 

• The intent of the Parties is to cooperate in the use of nuclear energy for peaceful purposes in accordance with this Agreement and applicable international agreements and arrangements, and national laws and regulations in force in Australia and in Kernistan.
• Cooperation under this Agreement may be undertaken directly between the Parties or through authorised legal entities of the Parties. Such cooperation shall be subject to this Agreement and to any additional terms and conditions as may be determined by the Parties or their authorised legal entities.
• The cooperation envisaged between the Parties under this Agreement may include, inter alia:

(a) basic and applied research;
(b) scientific, technical and industrial research and development;
(c) development, design, construction, operation and decommissioning of research reactors, nuclear power plants and other nuclear fuel cycle facilities;
(d) utilisation of nuclear reactors for electric power production, sea water desalination and heat production;
(e) management of spent nuclear fuel and radioactive waste;
(f) nuclear safety, radiation protection and protection of the environment;
(g) safeguards, and physical protection of nuclear material and facilities;
(h) use of radioisotopes and radiation in agriculture, industry, medicine and environmental research;
(i) geological and geophysical exploration, development, production, further processing and use of uranium resources;
(j) regulatory aspects of the peaceful uses of nuclear energy;
(k) transfer of nuclear materials; and
(l) other areas of cooperation as may be mutually determined by the Parties in writing through diplomatic channels.

 

• The cooperation referred to in paragraph 3 of this Article may be undertaken in the following forms:

(a) transfer of nuclear material, non-nuclear material, equipment, components and technology;
(b) exchange of information and personnel;
(c) training of personnel, including professional and advanced training for administrative, scientific and technical personnel;
(d) organisation of symposia and seminars;
(e) organisation of joint projects and establishment of joint ventures;
(f) establishment of bilateral working groups for implementation of joint projects;
(g) trade and commercial cooperation relating to the nuclear fuel cycle; and
(h) other forms of cooperation as may be mutually determined by the Parties in writing through diplomatic channels.

 

Article 2 – Explosive or Military Application

 

The Parties undertake that nuclear material, non-nuclear material, equipment, components and technology subject to this Agreement shall only be used for peaceful purposes and shall not be used for the manufacture of nuclear weapons or other nuclear explosive devices, for research on or development of nuclear weapons or any other nuclear explosive device, or be used in any way to further any military purpose.

 

Article 3 – Peaceful Application

 

The Parties affirm their ongoing commitment to promoting and fostering the peaceful development, deployment and use of nuclear energy both in their respective territories and elsewhere in the world with particular emphasis on the development of safe nuclear technology for electricity generation.

 

Article 4 – Joint Ministerial Committee

 

The Parties undertake to establish a Joint Ministerial Committee to meet at least twice annually to review all aspects of Australian–Kernistani nuclear cooperation, and to make recommendations to the respective governments about furthering the aims of this treaty.

 

Articles 1 and 2 of the treaty are not dissimilar to provisions of other nuclear cooperation treaties to which Australia is a party. Articles 3 and 4, however, have no counterpart in any other nuclear cooperation treaty to which Australia is a party.

 

The issue of nuclear power was a major issue at the last Victorian state election with strong opinions being held on both sides of the debate. In July 2021 the Social Unity Party (SUP) was re-elected with an increased parliamentary majority on the back of a campaign to “keep Victoria nuclear free”. The first major business of the Victorian Parliament after the July 2021 Victorian election was to enact the Nuclear Free Victoria Act 2021 (Vic) which provides relevantly as follows:

 

Nuclear-Free Victoria Act 2021 No. 27 of 2021

 

AN ACT to declare, affirm and uphold the status of Victoria as a nuclear-free state; and for related purposes.

 

• Short Title

This Act may be cited as the Nuclear-Free Victoria Act 2021.

 

• Commencement

This Act commences on the day on which it receives the Royal Assent.

 

• Nuclear-Free Victoria

The entirety of the State of Victoria is hereby declared to be a nuclear-free zone.

 

• Nuclear Power Generation

It shall be unlawful to build, construct or operate a nuclear power generation facility in Victoria.

PENALTY: 10 years’ imprisonment and/or a fine of $20 million.

 

The Nuclear-Free Victoria Act 2021 (Vic) received the Royal Assent on 6 September 2021.

 

On 4 October 2021 the Commonwealth commission of inquiry released its final report. It recommended that any policy of the Commonwealth to promote a domestic nuclear power industry should be implemented with the consent and cooperation of the states and territories.

 

The day after the release of the Commonwealth commission of inquiry’s final report, all of the State premiers and Territory chief ministers convened a meeting to discuss the issue of nuclear power generation in light of the recommendations in the Commonwealth report. The outcome of that meeting was that all of the State and Territory governments remained opposed to hosting a nuclear power plant. Following the meeting a joint press conference was held at which the premiers and chief ministers re-expressed their opposition to nuclear power generation (with the Victorian Premier voicing the strongest opposition) and at which they indicated that no State or Territory Government would authorise the construction or use of any nuclear power plant.

 

A meeting of the Joint Ministerial Committee under Article 4 of the Treaty was convened on 18 October 2021. Following the meeting the Joint Ministerial Committee issued the following recommendation:

 

WHEREAS on the Eighteenth Day of October 2021 the Joint Ministerial Committee on Australian–Kernistani Nuclear Cooperation met, the Committee recommends that the Government of Australia undertake measures to develop and promote a domestic nuclear power industry in Australia and that the Government of Kernistan undertake to provide technological and technical assistance in pursuit thereof.

 

A Bill was introduced by the Government into Parliament the following day. Thanks to its majority in both houses the Government was able to secure the passage of the Bill through Parliament in quick time and the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) was enacted. The Act provides relevantly as follows:

 

NUCLEAR MATERIALS (COOPERATION WITH KERNISTAN) ACT 2021 No. 143 of 2021

 

AN ACT to promote nuclear cooperation with Kernistan; and for related purposes.

 

• Short Title

This Act may be cited as the Nuclear Materials (Cooperation with Kernistan) Act 2021.

 

• Commencement

This Act commences on the day on which it receives the Royal Assent.

 

• Object

The object of this Act is to promote and enhance nuclear cooperation with Kernistan under the auspices, and in the spirit, of the Agreement between the Government of Australia and the Government of Kernistan on Cooperation in the Peaceful Use of Nuclear Energy entered into on 1 April 2021.

 

• Repeal

The legislative provisions set out in the Schedule to this Act are hereby repealed.

 

• Electricity Generation

1. The Minister shall have the power to authorise the construction, and license the use, of nuclear power generators in Australia using Kernistani technology on such terms and conditions as the Minister shall prescribe.
2. Subsection 1 of this section shall take effect notwithstanding any State or Territory law to the contrary.

 

SCHEDULE

 

1. Section 140A(b) of the Environment Protection and Biodiversity Conservation Act 1999.

 

The Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) received the Royal Assent on 3 December 2021.

 

Urangen Ltd has been authorised and licensed by the Commonwealth Minister under s 5(1) of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) to construct and operate a nuclear power plant using Kernistani technology in the Latrobe Valley, Victoria. Urangen Ltd commenced preparatory earthmoving work to prepare a site for the construction of a new nuclear power plant on 21 March 2022. The AttorneyGeneral for the State of Victoria is seeking an injunction against Urangen Ltd with a view to preventing any further work on the construction of a nuclear power plant at the site in contravention of s 7 of the Nuclear Free Victoria Act 2021 (Vic) and commenced proceedings in the Supreme Court of Victoria. Urangen is of the view that it has a right to construct and operate a nuclear power plant under the terms of its Commonwealth licence and that the Victorian Act is inconsistent with the Commonwealth Act.

 

You are a barrister who has been asked to provide written constitutional law advice to Urangen Ltd in respect of whether it can oppose the issuance of an injunction on the basis that neither s 6 nor s 7 of the Nuclear-Free Victoria Act 2021 (Vic) validly applies to Urangen Ltd. Although originally commenced in the Supreme Court of Victoria, the matter has been removed into the High Court of Australia on the application of the Attorney-General for the Commonwealth (intervening) pursuant to s 40(1) of the Judiciary Act 1903 (Cth). The matter is yet to be heard in the High Court. In your written advice to Urangen Ltd you are to address the following two issues:

 

1. the validity of s 5 of the Nuclear Materials (Cooperation with Kernistan) Act 2021 (Cth) as a law with respect to s 51(xxix) of the Constitution (external affairs), in particular as it applies to Urangen Ltd; and
2. the validity of each of ss 6 and 7 of the of the Nuclear-Free Victoria Act 2021 (Vic), in particular as they apply to Urangen Ltd.

 

NOTES

 

1. As an exercise in providing written legal advice your focus should be more on primary sources (eg case law) than on secondary sources (eg scholarly articles and academic commentary). That said, however, you are still welcome to refer to relevant secondary literature. In fact, you may find the secondary literature listed in your LAWS6006 Reading Guide (e.g. ZINES) helpful in elucidating some of the relevant issues of constitutional interpretation and characterisation relevant to solving this legal problem (especially where there is no authority directly on point or where there is some controversy about the state of the authorities). Further research on secondary literature other than that referred to in the Reading Guide is not necessary (although is by no means prohibited).
2. The word limit for this assignment is 3,000 words. In accordance with the University’s Course Management and Assessment Procedure Manual (as currently in force) the course coordinator will allow students 10% leeway with respect to the stated word limit. Note that the word limit includes headings and discursive footnotes but excludes citational footnotes. You MAY also write less than the stated word limit; there is no formal minimum word count for this assignment (although it goes without saying that very short responses are unlikely to address the points of law in the level of depth required to achieve a passing grade; as a rule of thumb it’s generally a good idea to aim to write at least 80% of the stated word limit).
3. Your assignment will be marked against the assessment criteria listed above.

 

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