Saturday, February 29, 2020

Who is responsible for energy policy

Last week has seen the interesting prospect of the Victorian Government introducing derogations from the National Electricity Law in relation to transmission investment and instead providing quite broad planning powers to the Minister directly.

This raises two different sets of issues - the first is about constitutional responsibility for energy and the second is about the appropriate role of independent regulatory and market bodies and that of Ministers. This post is exclusively about the former.

In discussions of the move it is not uncommon to see variants of the claim that 'energy is constitutionally a state responsibility' as claimed in the Australian Energy Council's analysis.

It is important that we unpack this and realise that the correct expression is 'there is no explicit constitutional power for the Federal government over energy.' Then by default it remains with the States. Put simply State constitutions have very few limitations on what thy can make laws in relation to, but the Federal constitution specifies the things over which the Federal Parliament may legislate. These are mostly listed in section 51 of the constitution.

How items got included or not included in that list is an interesting part of history. For example subsection (v) gives the Comonwealt the power over 'postal, telegraphic, telephonic, and other like services.' Earlier drafting included only the internatioonal dimensions of those services, though they also had interstate trade characteristics.

Railways famously were not included - there was no international dimension and interstate trade was by coastal shipping (covered by subsection (vii)). Energy services were not included because they virtually didn't exist. The NSW Parliament only legislated after Federation to provide the power for municipal councils to generally provide electricity and gas services (earlier operations having been authorised by specific Acts).

So it is important to realise there wasn't a decision made that energy was a State constitutional responsibility, there just was no decision made.

We have seen recently however that the Commonwealth has been able to use other heads of power to unilaterally legislate. The decision to repeal Limited Merits Review, the imposition of the Default Market Offer and the Market Misconduct Bill were all achieved through the Competition and Consumer Act. That in turn depends on the corporations power.

While the States have all adopted net zero carbon targets, the practical rality is that Australia's emissions reduction obligations occur through a treaty. Were the Commonwealth to legislate in relation to this treaty and a state law was in conflict with it, federal law would prevail.

The interesting question is how other areas that weren't considered in the constitution have been subsequently dealt with. The radiofrequency spectrum is one such case. The Commonwealth has legislated for it, and initially did so for the purposes of managing the spectrum for defence purposes. But I believe the generic right is claimed through 51(v) on the basis that in 1901 the only use of radio was the telegraph, and so frequency is a like service.

This could be said of electricity - because the bulk of electricity being carried over wites in 1901 was telephony and telegraphs. Indeed, when the first Posts and Telegraph Act was debated it had a provision that gave the PMG complete rights over electric wires because of the interference they could cause to telphone and telegraph services.

While it is hard to argue that the Commonwealth has demonstrated it would manage energy well, there appears to be a very strong case that the Commonwealth could legislate the complete regulation of the energy sector under the corporations and external affairs powers with more than a nod to 51(v).

We might be better off with one Government and empowered regulators rather than nine Ministers all of whom want to be seen to be doing something.

Life is what happens while you are busy making other plans JWL