Unearthing the Last Resort Power: The Bedrock Implications for the National Interest

1. Introduction

The extent of government intervention in financial markets is a polarising issue, having effectuated the rise and fall of nations, engendered heated political discourse, and even been used as the justification for international conflict. The complex and multifaceted nature of government intervention is not relegated to the macroscopic spheres of society – instead these interventions impact the experience of the citizen, their financial welfare, rights, and wellbeing. An intricate web of economic interconnectivity has transcended the traditional geographic and political boundaries. The ease of human mobility across borders is supplemented by the fluidity of capital flow, giving rise to a new set of legal considerations pertaining to geopolitical stability.

The influx of foreign capital, whilst providing a catalyst for sustained economic growth, presents nuanced challenges relating to the intricate balance struck between economic globalisation and State sovereignty. The inception of the last resort power into the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) reflects a judicious and strategic legislative update, effectively balancing Australia's national interests with the globalisation of investment.[i] The provisions demonstrate foresight in establishing robust control over critical national resources, a particularly vital measure amidst escalating international tensions. At its core, the paper will delve into Administrative Law’s role in the control of government action, beginning by exploring the historical background of the Foreign Investment Review Board (FIRB, the Board) regime, providing a foundation for examining the justification for the last resort power. The analysis will shift toward the philosophical underpinnings of national interests and their interplay with the principles of procedural fairness. Ascertaining the fundamental principles of Australian Administrative Law will encourage reflection on the extent to which the FIRB framework complies, allowing a conclusion to be made as to whether it constitutes good law.

Trends in hydrogen

The IP Australia Patent Analytics Hub recently published its report called The Power of Hydrogen. The report analyses global patent filings between 2010 and 2020 to identify trends and commercial players in the hydrogen technology globally. The report looks at innovation in hydrogen production, utilisation and storage.

Regulatory action on greenwashing

Greenwashing is an enforcement priority for regulators in Australia, including ASIC and ACCC. 

In the recent case of ASIC v LGSS Pty Ltd [2024] FCA 587 (Active Super case), ASIC was successful against the trustee of Active Super. In this case Active Super was found to have made false or misleading representations that it did not invest in certain sectors or activities. The purpose of these representations was to promote the superannuation fund’s ESG credentials. The court found that Active Super did actually invest in those sectors either directly or indirectly through its investment funds. 

Recent Development: Critical Minerals: Developments Globally and in Australia

John Southalan
Barrister (WA Bar Association), Mediator (NMAS), Adjunct Professor (UWA & Murdoch)
john@southalan.net   This note is written in a personal capacity and does not represent the views of any organisation with which the author is associated.
This note examines the legal and policy attention being focused on “critical minerals”, and implications for mineral regulation in Australia and particularly Western Australia. The note was written for a 21 February 2024 seminar held by ER Law at the Perth office of Norton Rose Fulbright.

The last year has seen great focus on “critical minerals”. There is broad consensus that, to meet the 2050 energy transition for the Paris Agreement, much more critical minerals are required (and that means mined, given that recycling supply cannot meet expected demand [i]). Many governments have adopted incentives to encourage and support the mining and processing of these minerals. And, just in the last few months, significant price volatility has seen some critical mineral operations in Western Australia close, and increasing consideration of government incentives.

Future Gas Strategy

The Future Gas Strategy was released on 9 May. Gas continues to be important to Australia through the energy transition with natural gas currently meeting 27% of our energy needs and nearly 20% of export income. The Minister for Resources, Madeleine King, highlights in the document that gas is a transition fuel that is required until renewable alternatives are viable. She also highlights the need for greenhouse gas emissions associated with gas to decline, abated or offset. In line with this the Strategy anticipates that demand for gas may increase until alternative energy sources are available but by 2050 demand is expected to be significantly reduced. 

The Federal Budget: A Future Made in Australia

On Tuesday May 14, Dr Chalmers delivered the Federal Budget for 2025. A central part of the budget was the Future Made in Australia initiative which committed $22.7 billion over the next decade to attract investment and propel Australia as a renewable energy superpower globally. This is aimed at accelerating investment in priority industries that include critical minerals processing, renewable hydrogen, low carbon liquid fuels, green metals (which include some commodities produced using low-carbon technologies) and the manufacturing of clean energy technologies.

Rehabilitation of the Latrobe Valley Coal Mines: Integrating Regulation of Mine Rehabilitaion and Planning for Land and Water Use

Professor Alex Gardner, University of Western Australia Law School
Elda Poletti, Mining Law Consultant
Lauren Downes, Research Associate, University of Western Australia Law School
Laura Hamblin, Research Associate, University of Western Australia Law School

The research presented in this article was supported by CRC TiME. The content of the article is a revised version of a case study undertaken for the project “Mapping the regulatory framework of mine closure”. The support of the Australian Government through the Cooperative Research Centre Program is acknowledged. The article is current to March 2024.

This case study considers the challenges of implementing effective regulatory processes for rehabilitation of open cut coal mines in one of the world’s largest brown coal reserves, the Latrobe Valley, Victoria. The Latrobe Valley coal fired energy industry is experiencing a transition hastened by a serious coal mine fire in 2014 and climate change. The Latrobe Valley mines and their associated power stations either have closed (Hazelwood 2017) or are scheduled to close (Yallourn 2028 and Loy Yang 2035) with final rehabilitation to follow. The case study demonstrates the leading role of the Mineral Resources (Sustainable Development) Act 1990 (Vic) in mine rehabilitation regulation. The MRSD Act was significantly reformed in 2019 to introduce important mine rehabilitation reforms and integrate mine rehabilitation regulation with land use and water use planning, all operating in the context of the Climate Change Act 2017 (Vic). The principal integrative instrument is the Latrobe Valley Regional Rehabilitation Strategy (2020, amended in October 2023). We suggest further research to improve the regulatory outcomes.

How Good is Queensland's Law Reform Commission Inquiry into Mining Lease Objections?

John Southalan
Barrister (WA Bar Association), Mediator (NMAS), Adjunct / Clinical Professor (UWA, Murdoch, Curtin)

This article is written in personal capacity and does not represent the views of any organisation with which the author is associated. Grateful thanks for comments and feedback on earlier drafts from Prof Deanna Kemp, Julia Keenan, Prof Alex Gardner, Rodger Barnes and others who are not identified. Any errors remain the author’s responsibility.

The Queensland Law Reform Commission is reviewing the processes to decide contested applications for mining leases and associated environmental authorities in Queensland. The Commission has published several background papers, providing material and analysis of much broader use that just Queensland law reform. One paper explores key drivers shaping mining’s future: decarbonisation and critical minerals’ demand; rising focus on environmental, social and governance principles; and increasing recognition and respect for First Nations’ rights. Another paper summarises (and compares) the objections processes for mining leases and associated environmental authorities in six jurisdictions: Queensland, Western Australia, New South Wales, Northern Territory, British Columbia (Canada), and South Africa. The Commission’s papers provide excellent summaries and material for anyone wanting to understand mining law and policy processes – what currently exists in these significant mining jurisdictions, and what the future may hold.

Renewable Energy Guidelines and Accelerated Approvals

The Clean Energy Council, in collaboration with KPMG, has released its Leading Principles: First Nations and Renewable Energy Projects. The document provides detailed guidelines on how to address challenges to effective engagement and sets out best practice principles to engage with First Nations People on renewable energy projects.

Recent updates from Malaysia and Southeast Asia

Acknowledging the need in its country, the Government of Malaysia has recently introduced several new programs that aim to improve low carbon and renewable energy generation in the country.