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Wednesday, 8 December 1976


Mr LIONEL BOWEN (Kingsford) (Smith) - This is a piece of amending legislation and it, too, has some sense of urgency about it. The House will recall that the original Bill was introduced as a matter of urgency on the evening of Thursday,18 November last, because of certain proceedings instituted in the Supreme Court of New South Wales by Westinghouse Electric Corporation in respect of uranium contract litigation. I understand that the AttorneyGeneral (Mr Ellicott), pursuant to the earlier legislation, was obliged to make an order which would prevent evidence being given, as requested. That evidence would have been used by a foreign tribunal, namely a United States District Court. Obviously that order was made on the basis that the evidence would perhaps be used to declare that Westinghouse need not comply with contracts which it had already entered into over a period of years for the supply of uranium. In the context of what I am saying about urgency, the fact that it is uranium creates a climate as to whether the legislation has been effectively drawn. The doubt becomes heightened by the fact that there has to be some amendment to the legislation within a matter of days. No personal criticism is intended here. The House will recall that in the course of the debate we were doubtful about the validity of certain provisions of the Bill as introduced on the evening of18 November, in particular sub-clause (2) of clause 4 which stated:

The validity of any exercise, or refusal of the exercise, of any power of the Attorney-General under this Act is not affected by, and shall not be subject to challenge in any court . . .

At the time we said that that was outside the constitutional power of the Government. Firstly it could not be maintained. Secondly, and more importantly if the Government were to adhere to that concept it ran a great risk of the whole Bill being declared invalid. We were relying on the dicta of Fullagar, J., in what is known as the Communist Party dissolution Bill. As a practical example, we were talking about the mere fact that somebody such as an Attorney-General might deem something to be a lighthouse, an example expressed by Mr Justice Fullagar, does not necessarily mean that it has the judicial characteristics of a lighthouse; therefore it cannot be deemed to be a lighthouse simply because the Attorney-General thought it ought to be. It was in that context that we were saying that while we recognised and supported the legislation there could be many difficulties. I again refer to this case of the Communist Party Dissolution Bill in which it is eloquently expressed that the validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law maker or the person who is to do the act that the law or the consequence of the act is within the constitutional power upon which the law itself depends for its validity. In this amending legislation the Attorney-General has deleted sub-clause (2) of clause 4.

In the course of the previous debate it was properly said that there should be some parliamentary knowledge of orders made under this type of legislation. The honourable member for Grayndler (Mr Antony Whitlam) raised this matter. He was referring to an English Act which was passed in similar emergency circumstances but which clearly had a provision that any order made would be subject to disallowance by the Parliament. The Attorney has agreed with that proposition in this amending legislation by providing that any decision made would be the subject of investigation by the Parliament in the sense that it would be laid before both Houses of Parliament and they would have a chance to disallow it if they objected to the decision. We concur with that amendment.

The point that is overriding the position at the moment is the predicament of Westinghouse itself. Because of this I shall be moving an amendment in Committee. The Labor Party has considered this matter. The amendment is to amend the principal Act by providing that this Act shall cease to be in operation after 30 June 1977 and shall thereupon be deemed to have been repealed by an Act other than this Act. We are saying that this is still emergency legislation. The Labor Party is not at all convinced that it is now properly drawn. We would like to see the efficacy of it tested by time, even if the time is relatively short, bearing in mind that the matters involved relate to certain difficulties that Westinghouse is experiencing. It is a very high powered company in the United States. Obviously it decided to make a substantial sum by selling nuclear reactors, which it did, with great skill. Iri the process it promised the people who bought the reactors a supply of uranium at a price which was in the vicinity of $6 to $8 per lb. It did not have enough business acumen to know that the price might rise, as it has now done, to some $40 per lb. Therefore it is unable financially to comply with the terms of the contract. As the AttorneyGeneral said, it is facing financial ruin to the extent of about $7 billion.

It has adopted the exercise of filing action in the United States on the basis that these contracts now can be avoided by what is deemed to be anti-trust legislation. It has taken proceedings against 29 uranium producers, of which we understand four could be Australian companies. It is in that context that we want to make certain that justice still prevails. Simply because Westinghouse has done the wrong thing all the way through, we do not want it thought that it must be penalised simply because it is an American multi-national. If we look at the history of the matter, it has certainly created a rod for its own back. In 1972, with the United States Government's blessing obviously, the United States Atomic Energy Commission authorised the release of SO 000 tons of stockpiled uranium. Westinghouse would be part and parcel of that action. That immediately depressed the market everywhere else. The Government of the United States certainly must be put on notice that Westinghouse must have gained immensely from the fact that a climate was created in which this uranium could be obtained relatively cheaply. That helped to sell all the reactors which Westinghouse wished to sell.

The United States decided to protect its own market. It prevented anybody else from selling uranium to the United States domestic market. It placed an embargo on any penetration of that market. It still has that embargo. Is it any wonder that uranium producers such as Canada and others said that something had to be done to give an orderly marketing concept? In that position we are entitled to say that that orderly concept should be maintained. From the Labor Party's point of view it is a question of judgment and assessment over a short period as to whether we are maintaining a fair and reasonable price. That is the purpose of the amendment. We want this matter reviewed and perhaps the legislation amended again but certainly reintroduced.

In the Senate there was discussion on the original Bill. The Government amendment to section 3 flows from that discussion. Personally-I say personally' because I do not necessarily think others will agree with me- I think the amendment to section 3 in which the definition of a foreign tribunal is deemed not to include the Judicial Committee of the Privy Council is opening up the opportunity for a tribunal in America to obtain the evidence. I know that the AttorneyGeneral added this amendment to the legislation because the matter was raised by Senator Steele Hall.

Surely the logic of the situation would be as I shall outline. Although the Attorney-General might feel it important to prevent evidence from being obtained by a foreign tribunal from a State court, bearing in mind that the Judicial Committee of the Privy Council could only be dealing with the same evidence one would think that the Attorney-General would deem it to apply also to that particular tribunal. I fail to see how this legislation would be able to prevent such ridiculous situations occurring as would occur if this legislation did apply to a State court and an appeal were made from that State court; if a new hearing were conducted before the Judicial Committee of the Privy Council, as could occur; if new evidence were then taken before the Judicial Committee of the Privy Council, as can happen; and if that evidence were certified as being the evidence and then introduced into the United States of America.

I think that this legislation opens up a problem by placing no embargo upon the Privy Council. It is difficult to legislate in this field. The constitutional difficulties are immense. Basically we are relying upon executive power. We have no specific power to control State courts, nor do we want it. But one does look a little askance at what has been happening in State courts, when they have been insisting all the time that these appeals to the Privy Council and that they should maintain their rights. We could well now find that in what is deemed to be in the national interest a form of appeal could be made to the Privy Council which could well create evidence which would destroy Australian companies operating in the uranium field. I say that only in the semantic sense. It clearly follows that if the Attorney-General has been unable to make decisions in State proceedings, by way of this legislation he would disbar himself from making any decision if those proceedings were taken to the Judicial Committee of the Privy Council. I should like to think that he will have another look at that.

Again, I am not at all convinced that this legislation will achieve what the Australian Government has in mind and what the Opposition supportsthat is, the concept of orderly marketing. I am convinced that Westinghouse may well start an action in a State Supreme Court on any issue which could be deemed to be a breach of contract, could subpoena all the people in Australia from whom it wished to obtain evidence, could arrange for the production of documents, and that could then be deemed to be the evidence that it wants and they could perhaps in some way or other get that evidence over to the United States and use it to negate contracts. We do not applaud that action, but it does highlight the problems that Australia faces in the hara world of international trade. We cannot afford to have weaknesses in our judicial or constitutional system. Yet we have that very problem.

We have the stupidity of premiers saying that they are autonomous in their own fields, that the Commonwealth is not to interfere, that any interference by the Commonwealth is deemed to be a centralist bogy. This should not apply when dealing with international matters. I think every State premier will be saying to the AttorneyGeneral after the introduction of this legislation: Save our industry and save our companies. If this sort of thing can happen we could be destroyed in the international market'. It leaves one with the clear impression that the sooner we get more constitutional powers in the judicial sense the better. This would be in the best interests of the nation and would enable Australia to protect its interests, in the same way that the United States protects its interests. Australia would not then have the weakness of being deemed to be a composite of 6 foreign little States, all trying to do their own thing, with an appeal court situated some 12 000 miles away. Without more constitutional powers being vested in the Federal Government, this situation will always exist.

The other point I wish to make in relation to this legislation relates to clause 4 of the Bill, which states:

Section 4 of the Principal Act is amended-

(a)   by inserting in paragraph (a) of sub-section ( 1 ), after the word 'relate', the words, 'being the only proceedings of a foreign tribunal . . .

It has been suggested to me that the word only' in that context means one or the singular. The Attorney-General might wish to alter that word. It is suggested it might be far preferable to delete the word 'only'; in other words, to have the clause relate to any proceedings. It could well be that Westinghouse could have some litigation in progress, as it does now in the Richmond Division of the Courts of Virginia, and that it might start another action and seek to obtain similar evidence, in which event there would be 2 proceedings rather than only one. I question whether it is appropriate for the word 'only' to be used or whether it would not be better if it were removed.

I have canvassed the various aspects of the earlier debate concerning the urgency of the legislation. We support the concept. We are concerned about whether it has been drafted effectively. Because the emotional issue of uranium is involved, naturally there are opinions which question whether this legislation will affect cartels or orderly marketing by supporting certain companies in this field. We are well aware of the fact that certain evidence could well have been stolen in Australia and transmitted to the United States. What we are trying to say is that we accept that at times there has to be emergency legislation. This legislation certainly falls within that category because litigation is already pending in the New South Wales court and we do not want to see Australian producers and Australian industry affected adversely. We want to see the industry maintained on a viable basis. What the industry had to do to protect itself against the United States in earlier years is perfectly understandable and perfectly entitled to support. The difficulty is to decide the methods and words that we should adopt in emergency legislation to give effective legal support. Obviously, State courts cannot provide this support. We are now put in the difficult situation of trying to do it for them.

In summary, we certainly applaud the fact that section 4 (2) has been deleted and that the Attorney- General will enable any order to be disallowed by the Parliament. Again, overriding the whole concept of this legislation is the fact that we feel that the Parliament of Australia ought to be entitled at the next parliamentary session to look at developments which might have taken place in the courts between now and then. This would provide a better understanding of the legal issues involved, and the Parliament could then either renew the legislation or pass it in an amended form. Basically we support the Bill with the sanctions that I have mentioned. We shall be moving an amendment at the Committee stage in the terms which I have outlined.







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