Commonwealth v PHB Tiliton (2022) HCA

The government of Buzzibique has made a number of official complaints to the Commonwealth Government of Australia alleging human rights abuses by Australian-owned and Australian-registered mining company PHB Tiliton whilst mining rare earth minerals, including cadmium and cobalt. These abuses, include forced child labour, extreme working conditions (greater than 12 hours per day) and squalid living conditions.

Although Australia has no treaty agreements with Buzzibique with respect to trade, mining or human rights, the Commonwealth enacted the Conduct of Australian Companies Abroad Act 2022(Cth). Inter alia, this act has the following sections:

S2: The object of this Act is to ensure that the conduct of Australian Companies do not breach international human rights laws to which Australia is a signatory to;

S4: Australian companies operating abroad are required to comply with all laws in the country of operation;

S15: Australian companies operating abroad are required to implement Australian standards of operation in relation to health and safety, and worker conditions; and

S16: Australian mining companies operating abroad shall not engage in activiti9rs that breach Australia's international law obligations.

PHB Tiliton challenged the validity of the Conduct of Australian Companies Abroad Act 2022(Cth) in the Federal Court, with the Full Federal Court holding in PHB Tiliton v Commonwealth(2022) FCA 22 that the Act was invalid.

The commonwealth has appealed the decision in PHB Tiliton v Commonwealth(2022) FCA 46 on the following three grounds:

1. The Commonwealth has the Legislative power to make laws under the external affairs power (s51(xxix)) with respect to activities outside Australia;
2. The Commonwealth has the Legislative power to make laws under the external affairs power (s51(xxix)) to make laws with respect to Australia's international law obligations; and
3. As a signatory to the International Covenant on Civil and Political Rights,the International Covenant on Economic, Social, and cultural rights,and the Convention on the Rights of the Child,the Commonwealth has the power to legislate with respect to human rights abuses by Australian Companies in foreign nations.

Your task

Utilising applicable case law, you are required to advise your client about the likely outcome of the High Court Challenge by the Commonwealth.