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Published online by Cambridge University Press: 24 January 2025
On the evening of 18 November 1976 the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 passed through both Houses of Federal Parliament in less than three hours. The Federal Government claimed that the Act was urgently needed to protect the Australian national interest, which was said generally to be threatened by attempts being made to gather evidence in Australia for use in large-scale litigation in the United States of America arising put of an international uranium cartel The Parliamentary debate did little credit either to the Government or the Opposition. It is necessary to go beyond the Parliamentary Debates to make an informed assessment of the Act. When the facts are examined it becomes clear that the Government's claim that the situation was urgent was unfounded, that the appeal to the national interest was at best highly questionable and that, because of the availability of appropriate judicial process, legislative action was unnecessary. The Act is alarmingly vague and reposes wide discretionary powers in the Attorney-General. Its passage and operation have quite disturbing implications for parliamentary democracy and the principle of open government. Where uranium is concerned the Federal Government is showing an increasing tendency to use the Parliament as a cipher.
The author wishes to record his appreciation for the assistance and comments he received in the preparation of this article from various people including Charles Maechling Jr, G. A. Mackay, James A. Goold, Dr O. J. C. Runnalls, R. K. Gardiner, Thomas D. Walker and C. Forrest Bannan. The author alone is responsible for the views expressed.
1 H.R. Deb. 1976, Vol. 102, 2917.
2 S. Deb. 1976, Vol. 70, 2197.
3 Ibid.
4 Note, (1976) 50 A.L.J. 607.
5 Joskow, , “Commercial Impossibility, the Uranium Market and the Westing-house Case” (1977) 6 Journal of Legal Studies 119.CrossRefGoogle Scholar
6 Ranger Uranium Environmental Inquiry: First Report (1976) 57.
7 The most convincing repositories of evidence establishing the existence of a cartel are International Uranium Supply and Demand, Hearings Before the Subcommittee on Oversight and Investigations of the U.S. House of Representatives Committee on Interstate and Foreign Commerce, Serial No. 94-150 (Washington, 1977) (hereinafter “Uranium Supply and Demand”) and International Uranium Cartel, Hearings Before the Subcommittee on Oversight and Investigations of the U.S. House of Representatives Committee on Interstate and Foreign Commerce, Serial No. 95-39 (Washington, 1977) (hereinafter “Uranium Cartel Hearings”). In contrast to the almost coy attitude of the Australian Government concerning the existence of the cartel and the Government’s involvement (if any) in it, the Canadian Government has been very candid about its promotion of and participation in the cartel. See Statement By Hon. Alastair Gillespie, Minister of Energy, Mines and Resources, 22 September 1976 and accompanying Background Paper on the Canadian Uranium Industry’s Activities in International Uranium Mining, 22 September 1976 (hereinafter “First Canadian Statement”) and Press Release by the Hon. Alastair Gillespie, 14 October 1977 (hereinafter “Second Canadian Statement”). See also Goralksi, “The Uranium Pricing Puzzle” (1977) 23 The Orange Disc (published by Gulf Oil Corporation) 28Google Scholar, for an assessment of the uranium price rise which discounts the role of the cartel.
8 New York Times, 9 September 1975, 53.
9 Business Week, 26 September 1977, 125.
10 Duquesne Light Company v. Westinghouse Electric Corporation, Court of Common Pleas of Allegheny County, Pennsylvania—Civil Division, No. GD 75—23978 in Equity. This action has since been settled.
11 In re Westinghouse Electric Corporation Uranium Contracts Litigation, United States District Court for the Eastern District of Virginia, M.D.L. No. 235. This is multidistrict litigation resulting from the consolidation of 13 separate suits brought against Westinghouse in various U.S. District Courts. See (1975) 405 F. Supp. 316 and Tennessee Valley Authority v. Westinghouse Electric Corporation (1977) 429 F. Supp. 940. On 29 October 1978, a short time prior to publication of this issue of the Review, the District Court in the Richmond suit rejected Westing-house’s defence (see n. 28 infra) and upheld the electric utilities’ claims. New York Times, 30 October 1978.
12 Westinghouse Electric Corporation v. Rio Algom Ltd, United States District Court for the Northern District of Illinois, Eastern Division, No. 76 C38330. Westinghouse apparently chose to bring its suit in Illinois in part because, in the terms of its Complaint, Count One, para. A.2(b) (copy in author’s possession) “the largest uranium conversion facility in the world is located in Metropolis, Illinois; the conversion of uranium concentrate (U3Os) to uranium hexafloride (UF5) is an essential step in the processing of uranium for fabricated fuel assemblies to be used in nuclear reactors; and a large majority of all uranium sold by defendants in furtherance of the combinations and conspiracies alleged herein has come to rest and been processed in Illinois”. This action has not yet come to trial.
13 At the time of writing the United States Department of Justice was still conducting a Grand Jury investigation but no indictments had been returned. Under Rule 6(e) of the Federal Rules of Criminal Procedure (18 U.S.C.A.), that investigation is conducted in secret.
14 For example, at the time of writing other suits were pending in State or Federal Courts in Santa Fe, Alberquerque and Knoxville. Parisi, “Critical Court Ruling in U.S. Soon on Uranium”, Australian Financial eview, 3 January 1978, 12. In some instances the proceedings have gone as far as the Supreme Court of the United States. See General Atomic Co. v. Felter 54 L. Ed. 2d 199 and 56 L. Ed. 2d 480.
15 Rio Tinto Zinc Corporation Ltd v. Westinghouse Electric Corporation [1978] 2 W.L.R. 81. Westinghouse also failed to have Letters Rogatory enforced in proceedings in the Ontario High Court of Justice: Re Westinghouse Electric Corporation and Duquesne Light Co. (1977) 78 D.L.R. (3d) 3.
16 Conzinc Riotinto of Australia Ltd, Mary Kathleen Uranium Ltd, Pancontinental Mining Ltd, Queensland Mines Ltd.
17 E.g. Conzinc Riotinto of Australia Ltd, Annual Report (1977) 8, 27.
18 Recitals in Orders promulgated pursuant to the Act on 29 November 1976, 23 and 24 December 1976 and copy of Pittsburgh suit Letters Rogatory in possession of author.
19 Questions Nos. 1051 and 1507 had been placed on the House of Representatives Notice Paper on 8 September 1976 but were not answered until 9 December 1976. See also Nation Review, 17 September 1976, 1185, 1187. On the morning of 18 November 1976 the Attorney-General, in answer to a question without notice, said that he understood a letter of request had been filed in the Supreme Court of New South Wales (as to which see text at nn. 35 and 36 infra) seeking documents of oral evidence, and went on to inform the House that “the matter of whether such evidence should be produced is under consideration at the moment”. H. R. Deb. 1976, Vol. 102, 2841-2842,
20 Australian Government Gazette, No. S214, 29 November 1976.
21 Australian Government Gazette, Nos. S237, 23 December 1976 and S239, 24 December 1976.
22 H.R. Deb. 1976, Vol. 102, 3704. Answer to Question on Notice No. 1507. However, in a letter dated 8 July 1977, the Chairman of the Australian Uranium Producers’ Forum informed the author that he did not “know what motivated the Federal Government to introduce this legislation into Parliament”.
23 S. 48 of the Acts Interpretation Act 1901 provides that regulations must be laid on the table of each House of the Commonwealth Parliament within fifteen sittings days of their making, and enables the disallowance of regulations in defined situations. See generally, Pearce, , Delegated Legislation in Australia and New Zealand (1977).Google Scholar
24 For the debates see H.R. Deb. 1976, Vol. 102, 2909-2917, 3384, 3486-3497. S. Deb. 1976, Vol. 70, 2186-2198, 2934-2935, 3070-3071.
25 Shipping Contracts and Commercial Documents Act 1964. Mann, , “Anglo-American Conflict of International Jurisdiction” (1964) 13 International and Comparative Law Quarterly 1460.CrossRefGoogle Scholar For a general statement on the official United Kingdom position see “Aide-Memoire” re-produced in full in Brownlie, , Principles of Public International Law (2nd ed. 1973) 303-306.Google Scholar
26 This was meant to refer to the Uranium Information Security Regulations made on 22 September 1976 pursuant to the Canadian Atomic Energy Control Act, R.S.C. 1970, Ch. A-19. See text at n. 59.
27 H.R. Deb. 1976, Vol. 102, 2910 (italics added).
28 Ibid. (Mr L. Bowen, M.P.). The shadow Attorney-General’s description is a considerable over-simplification. In making its announcement on 8 September 1975, and in the Pittsburgh and Richmond suits, Westinghouse relied on s. 2-615 of the Uniform Commercial Code which provides as follows: “Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:
(a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
(b) Where the causes mentioned in paragraph (a) affect only a part of the seller’s capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.
(c) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under paragraph (b), of the estimated quota thus made available to the buyer.”
In its announcement Westinghouse stated that pursuant to s. 2-615 it had established a programme to allocate uranium in its inventory, or on order, fairly and equitably ong its customers. Under the allocation plan each customer would have received ightly less than 19% of its anticipated uranium needs as those needs were scribed in the allocation plan. See In re Westinghouse Electric Corporation anium Contracts Litigation (1975) 405 F. Supp. 316.
29 First Canadian Statement.
30 S. Deb. 1976, Vol. 70, 2187.
31 “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 by reason of, any failure to comply with the provisions ’ this section.”
32 S. Deb. 1976, Vol. 70, 2193.
33 This particular amendment can be traced to Senator Steele Hall’s cont to the debate on the original Bill. S. Deb. 1976, Vol. 70, 2192.
34 See generally Odgers, , Australian Senate Practice (5th ed. 1976) 352-358Google Scholar.
35 Letter dated 10 March 1977 and subsequent undated letter to author from Prothonotary of the Supreme Court of New South Wales.
36 Letter dated 11 August 1977 to author from James A. Goold, Esq. of Kirkland & Ellis, Attorneys of Chicago, Illinois who act on behalf of the Westinghouse Electric Corporation.
37 H.R. Deb. 1977, Vol. 103, 503.
38 (Italics added). Supreme Court Rules 1970 Part 58. For the largely uniform provisions in the other States; Qld: The Rules of the Supreme Court, 0.40, r. 43; S.A.: Supreme Court Rules, 0.37, r. 39; Tas.: Rules of Court, 0.49, Div. VII; Vic.: Rules of the Supreme Court, 0.37, r. 54; see Ukley v. Ukley [1977] V.R. 121; W.A.: Rules of Supreme Court, 0.39. For a comprehensive Canadian view see Re Westinghouse Electric Corporation and Duquesne Light Co. (1977) 78 D.L.R. (3d) 3.
39 Letters Rogatory issued by Judge Wekselman on 21 October 1976 (italics added). Copy in author’s possession.
40 See British Nylon Spinners Ltd v. Imperial Chemical Industries Ltd [1953] 1 Ch. 19: Shipping Contracts and Commercial Documents Act 1964. Seen. 25 supra.
41 [1978] 2 W.L.R. 81. See Isaacs, , “The Westinghouse Case” (1978) 75 Law Society Gazette 101.Google Scholar
42 In re Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 [1977] 3 W.L.R. 430; In re Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 (No. 2) [1977] 3 W.L.R. 492.
43 Federal Rules of Civil Procedure, 28 U.S.C.A. rules 26-37.
44 [1956] 1 Q.B. 618.
45 Id. 643-644. See Penn-Texas Corporation v. Murat Anstalt [1964] 1 Q.B. 40; Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647; Panthalu v. Ramnord Research Laboratories Ltd [1966] 2 Q.B. 173; American Express Warehousing Ltd v. Doe [1967] 1 Lloyd’s Rep. 222; Lucas Industries Ltd v. Chloride Batteries Australia Ltd (1978) 18 A.L.R. 579.
46 Federal Rules of Civil Procedure, 28 U.S.C.A. rule 12(b).
47 Second Canadian Statement, n. 7. Annexed to that Statement is a copy of a protest note which Canadian officials delivered to the United States authorities on 15 August 1977. On 9 December 1976 the Australian Minister for Business and Consumer Affairs, Mr Howard, in answer to a question on notice, stated that no note of protest in relation to the Act had been delivered by the United States Department of State. He also stated that the Australian Government had decided not to enter into negotiations with the United States Government with a view to effecting a treaty of mutual co-operation relating to trade practices and anti-trust activities. H.R. Deb. 1976, Vol. 102, 3708.
48 [1978] 2 W.L.R. 81, 94 per Lord Wilberforce; 107 per Viscount Dilhorne (implicitly); 125 per Lord Fraser of Tullybelton, relying on The Fagernes [1927] P. 311.
49 [1963] V.R. 3.
50 [1968] A.C. 910.
51 The former Attorney-General and his successor have refused to be drawn on a request by the author for further information generally in relation to the circumstances prompting the Australian Government’s policy. It is significant to note, however, that the Government made representations to the United Kingdom Government desiring to associate itself with the United Kingdom Attorney-General’s intervention in the House of Lords argument in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation in opposition to the U.S. anti-trust inquiries. See Financial Times, 25 October 1977, 7. The author requested confirmation of this from the Australian Foreign Affairs Minister but, as in the case of his ministerial colleague, that request had, at the date of writing, been ignored. See also Re Westinghouse Electric Corporation and Duquesne Light Co. (1977) 78 D.L.R. (3d) 3 at 21.
52 In Kathleen Investments (Australia) Ltd v. Australian Atomic Energy Commission (1977) 16 A.L.R. 535 the High Court of Australia, by a majority, rejected a challenge to the legality of that shareholding.
53 S. 17(1)(d) of the Atomic Energy Act 1953 (Cth) provides that, subject to the Act, one of the functions of the Commission is “to negotiate on behalf of the Commonwealth, or enter into, agreements for the purchase and sale of uranium and minerals found in association with uranium”. S. 17(2) provides that “The Commission may act as agent of the Commonwealth in relation to any matter within the functions of the Commission.”
54 It appears that there was official Australian representation. On 14 February 1972 the Canadian Embassy informed the United States Atomic Energy Commission that “Canada took the initiative in calling a meeting on February 2 [1972] in Paris of government officials from Australia, France, South Africa and Canada, to explore all facets of present uranium market problems. The prime motivation behind the meeting resulted from Canada’s concern that the chaotic price situation could reduce exploration for uranium to a point endangering the adequacy of supplies in latter part of this decade. The meeting was organised to complement one of major producers which had been called by Uranex of France for February 3-4. Representatives from Australia, France and Canada attended Governmental Meeting, but there was no representation from South Africa.” (italics added). A report of the Paris talks had appeared in Wall Street Journal, 8 February 1972. Those Paris talks mark the commencement of the cartel. Other meetings took place throughout 1972-1974 at various locations including Canberra, Sydney, Johannesburg, Toronto, London and Las Palmas: see Uranium Cartel Hearings 455-678.
55 In the case of Conzinc Riotinto of Australia Ltd (“CRA”) 72.6% of its share capital is owned by Rio Tinto-Zinc Corporation Limited. Mary Kathleen -Uranium Limited is owned as to 51% by Conzinc Riotinto of Australia Ltd and as to 41.6% by the Australian Atomic Energy Commission. Conzinc Riotinto of Australia Ltd, Facts About CRA (1977) 2, 35.
56 The documents were made public by Friends of the Earth and are assembled in Uranium Supply and Demand and Uranium Cartel Hearings.
57 SOR/76-644; Canada Gazette Part II, Vol. ll0, No. 19.
58 In Clark v. Attorney-General of Canada (1977) 81 D.L.R. (3d) 33, Evans CJ. of the Supreme Court of Ontario, in an action brought by members of the Federal Opposition in the Canadian Parliament, declared that reg. 2(a) (ii) was ultra vires the Atomic Energy Control Board and the Governor in Council under s. 9 of the Atomic Energy Control Act 1970. See also Re Westinghouse Electric Corporation and Duquesne Light Co. (1977) 78 D.L.R. (3d) 3.
59 First Canadian Statement.
60 In the debate on the amending Bill the Attorney-General did, however, offer the following comment: “This legislation is concerned with the rights of Australia in relation to this matter and the intrusion of anti-trust laws in the United States of America into what basically is Australia’s concern, namely, the price at which we will fix our uranium. We are acting in our national interests.” H.R. Deb. 1976, Vol. 102, 3496.
61 The address is reprinted in Bell, , “International Comity and the Extraterritorial Application of Anti-Trust Laws” (1977) 51 A.L.J. 801-803.Google Scholar
62 In its nationalist haste and zeal the Government overlooked mentioning at least one strong supporting piece of evidence, namely the fact that so far as Queensland Mines Ltd was concerned Australian ownership and control had been preserved by special legislation. See Companies (Uranium Mining Companies) Ordinance 1970 (A.C.T.). Somewhat irol.lically, s. 7 of the Ordinance gives the Ordinance extra-territorial operation in the following terms: “This Ordinance extends to acts done or omitted to be done outside the Territory, whether in Australia or not.”
63 The literature is vast. The non-U.S. commentators are disinclined to accept the validity of the widest applications of extra-territorial anti-trust jurisdiction such as that in United States v. Aluminium Co. of America (1945) 148 F. 2d. 416 (2nd Cir.). The U.S. commentators, reflecting the fundamental position which the anti-trust laws have in the U.S. economic system, tend to be convinced that the wide jurisdictional claim is necessary to protect vital national interests. But the U.S. commentators are not always unanimous. See for example, the debate between Timberg and Haight (1956) 11 Record of Association of the Bar of New York 101 ff. See generally Neale, , The Antitrust Laws of the U.S.A. (2nd ed. 1970) 360-372Google Scholar; Jennings, , “Extraterritorial Jurisdiction and the United States Antitrust Laws” (1957) British Yearbook of International Law 146Google Scholar; Akehurst, , “Jurisdiction in International Law” (1972-1973) 46 British Yearbook of International Law 145Google Scholar; Brownlie, , Principles of Public International Law (2nd ed. 1973) Ch. XIVGoogle Scholar; Mann, , Studies in International Law (1973) Ch. IGoogle Scholar; Brewster, , Antitrust and American Business Abroad (1958)Google Scholar; Fugate, , Foreign Commerce and the Antitrust Laws (2nd ed. 1973)Google Scholar; United States Department of Justice, , Antitrust Guide for International Operations (1977)Google Scholar; Report of Attorney-General’s National Committee to Study the Antitrust Laws (1955) 66-77. Of the periodical literature the following is a very brief random sampling: Note, “Application of the Anti-trust Laws to Extraterritorial Conspiracies” (1940) 49 Yale Law Journal 1312; Hale, , “Monopoly Abroad: The Antitrust Laws and Commerce in Foreign Areas” (1953) 31 Texas Law Review 493Google Scholar; Timberg, , “Antitrust and Foreign Trade” (1953) 48 Northwestern University Law Review 411Google Scholar; Haight, , “International Law and Extraterritorial Application of the Antitrust Laws” (1954) 63 Yale Law Journal 639CrossRefGoogle Scholar; Whitney, , “Sources of Conflict Between International Law and the Antitrust Laws” (1954) 63 Yale Law Journal 655CrossRefGoogle Scholar; Maechling, , “Uncle Sam’s Long Arm” (1977) 63 American Bar Association Journal 372Google Scholar; Jones, , “Extraterritoriality in U.S. Antitrust: An International ’Hot Potato’” (1977) 11 International Lawyer 415Google Scholar; Ryan, “The International Application of United States Anti-Trust Legislation”, paper delivered to Fifth International Trade Law Seminar in Canberra on 25 June 1978.
64 E.g. Akehurst, op. cit. 193.
65 County Council of Fermanagh v. Farrendon [1923] 2 I.R. 180 (malicious discharging of firearm in County Donegal with bullet passing border with Northern Ireland and striking victim in County Fermanagh); D.P.P. v. Stonehouse [1977] 3 W.L.R. 143 (fabricated appearance of death in United States, with a view to securing for spouse proceeds of life assurance policy effected in England, sufficient to sustain charge in England of attempting to obtain property by deception).
66 Op. cit. 192.
67 Timberg, op. cit. 103.
68 Submission of H.M. Attorney-General to House of Lords in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] 2 W.L.R. 81. Copy in author’s possession.
69 United States v. Aluminium Co. of America (1941) 44 F. Supp. 97; on appeal (1945) 148 F. 2d. 416 (2nd Cir.).
70 Campbell, Wilberforce and Elles, , Restrictive Trade Practices and Monopolies (2nd ed. 1966) 669-672.Google Scholar
71 H.R. Deb. 1976, Vol. 102, 2910.
72 United States v. Aluminium Company of America (1945) 148 F. 2d. 416 (2nd Cir.); United States v. Timken Roller Bearing Co. (1949) 83 F. Supp. 284, affirmed (1951) 341 U.S. 593; United States v. General Electric Co. (1949) 82 F. Supp. 753, (1953) 115 F. Supp. 835.
73 For example, the testimony of the officials of the Tennessee Valley Authority in Uranium Cartel Hearings, 346-411.
74 United States v. Aluminium Co. of America (1945) 148 F. 2d. 416, 443.
75 United States Department of Justice, Antitrust Guide for International Operations (1977) 7-8.
76 American Banana Co. v. United Fruit Co. (1909) 213 U.S. 347; United States v. Sisal Sales Corp. (1927) 274 U.S. 268; Continental Ore Co. v. Union Carbide & Carbon Corp. (1962) 370 U.S. 690. See also Triggs, “Sovereign Immunity: A New Rule of International Law”, paper delivered to Fifth International Trade Law Seminar in Canberra on 25 June 1978.
77 Interamerican Refining Corp. v. Texas Maracaibo, Inc. (1970) 307 F. Supp. 1291. See also Triggs, op. cit.
78 United States Department of Justice, Antitrust Guide for International Operations (1917) 8.
79 (1976) 50 A.L.J. 607, 609 and the cases cited there.
80 H.R. Deb. 1976, Vol. 102, 2914.
81 The Foreign Tribunals Evidence Act 1856 (Imp.), which forms the basis of Australian law enabling the giving of effect to requests for evidence from foreign tribunals, was repealed in the United Kingdom by the Evidence (Proceedings in Other Jurisdictions) Act 1975, which was passed to give effect to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970 (see Cmnd 3991), which the United Kingdom ratified in 1976. See also Ukley v. Ukley [1977] V.R. 121.
82 Constitution, s. 51(:xxix).
83 New South Wales v. Commonwealth (1975) 50 A.L.J.R. 218. See generally Goldsworthy, , “Ownership of the Territorial Sea and Continental Shelf of Australia: An Analysis of the Seas and Submerged Lands Act Case (State of New South Wales and Ors v. The Commonwealth of Australia)” (1976) 50 A.L.J. 175.Google Scholar
84 (1976) 50 A.L.J. 607, 609.
85 The original Bill was still not available for purchase by the author from the Australian Government Publishing Service bookshop in Melbourne at the time the amending Bill was being debated. To be fair to the former Attorney-General, it needs to be stated that he asserted in a letter to the author dated 17 March 1977 that the Act was available. This contradicts the author’s actual experience.