Commonwealth v Tasmania (The Tasmanian Dam Case)

158 CLR 1
46 ALR 625

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(Judgment by: GIBBS CJ)

COMMONWEALTH v. TASMANIA (The Tasmanian Dam Case)

Court:

Judges: Gibbs C.J.
Mason J.
Murphy J.
Wilson J.
Brennan J.
Deane J.
Dawson J.

Subject References:
Constitutional Law (Cth)
International Law

Hearing date: 31 May 1983, 1 June 1983, 2 June 1983, 3 June 1983, 7 June 1983, 8 June 1983, 9 June 1983, 10 June 1983
Judgment date: 1 July 1983

BRISBANE

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Judgment by:
GIBBS CJ

Introduction

The question of immediate practical importance which falls for decision in these three cases is whether it is lawful for the Hydro-Electric Commission of Tasmania (the Commission) to construct a dam on the Gordon River, downstream of its junction with the Franklin River, in south-western Tasmania. The construction of the dam, and of associated works, including a power station, is authorized by the Gordon River Hydro-Electric Power Development Act 1982 (Tas.), a law of Tasmania which came into force on 12th July, 1982. The construction work commenced on 14th July, 1982. The dam proposed to be constructed will dam the waters of the Gordon River to a maximum depth, at the toe of the dam, of approximately 84 metres, will raise the levels of the Franklin River and other tributaries and will have a storage capacity of about 2,700 million cubic metres. The power station will add about 180 megawatts on average to the capacity of the Tasmanian electricity generating system and will have an installed generator capacity of about 300 megawatts. The Government of Tasmania wishes to proceed with the Gordon below Franklin Scheme (as it is called) since it considers that the ability to generate electricity at low cost by this means is necessary to enable the State to achieve economic growth and to increase the opportunities for employment. However, the Government of the Commonwealth wishes to stop the construction of the dam, which it considers will inundate significant Aboriginal archaeological sites, and will cause damage to a wilderness area which is of great natural significance, and which satisfies the criteria for listing on the World Heritage List maintained under the Convention for the Protection of the World Cultural and Natural Heritage (the Convention). In conformity with the policy of the Government to stop the construction of the dam, the Governor-General, acting in intended exercise of the power conferred by National Parks and Wildlife Conservation Act 1975 (Cth), has made the World Heritage (Western Tasmania Wilderness) Regulations (S.R. Nos. 31 and 66 of 1983) and the Parliament has enacted the World Heritage Properties Conservation Act 1983 (Cth) (the Act). Either the Regulations or the Act, if valid, will render it unlawful to construct the dam, except with the consent of a Commonwealth Minister. The important legal question that now falls for decision is whether the Regulations and the Act are valid.

No lawyer will need to be told that in these proceedings the Court is not called upon to decide whether the Gordon below Franklin Scheme ought to proceed. It is not for the Court to weigh the economic needs of Tasmania against the possible damage that will be caused to the archaeological sites and the wilderness area if the construction of the dam proceeds. The wisdom and expediency of the two competing courses are matters of policy for the Governments to consider, and not for the Court. We are concerned with a strictly legal question - whether the Commonwealth regulations and the Commonwealth statute are within constitutional power.

History

In the west and south-west of Tasmania are three large national parks, now proclaimed as such under the National Parks and Wildlife Act (1970) (Tas.), although originally constituted under earlier legislation. They are the Cradle Mountain-Lake St. Clair National Park, the Franklin Lower Gordon Wild Rivers National Park and the Southwest National Park. The area occupied by the three parks is now known as the Western Tasmania Wilderness National Parks (the Parks) and until 17th August, 1982, was of a total area of 769,355 hectares, almost the whole of which consisted of Crown land which had not previously been alienated. The Parks are almost wholly surrounded by an area known as the Southwest Conservation Area, proclaimed as such under the National Parks and Wildlife Act 1970 (Tas.) and consisting of 665,645 hectares. On 22nd September, 1981, the then Premier of Tasmania (Mr Lowe) wrote to the then Prime Minister (Mr Fraser) requesting that a nomination of the Parks for listing in the World Heritage List should be forwarded to the World Heritage Committee. A nomination was submitted by the Commonwealth to the World Heritage Committee on 13th November, 1981. The International Union for Conservation of Nature and Natural Resources (IUCN), a body recognized by the Convention and entitled to send a representative to attend meetings of the World Heritage Committee in an advisory capacity (see Art. 8.3 of the Convention), reported to the World Heritage Committee on 15th April, 1982, recommending that the Parks be listed. The report reveals that the question whether the Gordon below Franklin dam should be built was already a controversial issue in Australia. On 28th June, 1982, the Gordon River Hydro-Electric Power Development Act 1982 was assented to and on the same day the Premier of Tasmania (by that time Mr Gray) requested the Prime Minister to withdraw the nomination of the Parks for inclusion in the World Heritage List. The Prime Minister declined to do so, and Mr Gray strongly objected to this rejection of his request.

On 17th August, 1982, by proclamation made under the National Parks and Wildlife Act 1970 (Tas.), an area of 14,125 hectares was excised from the Franklin Lower Gordon Wild Rivers National Park as from 2nd September, 1982, and a further area of 780 hectares is to be excised from that National Park as from 1st July, 1990. By a proclamation made on 7th September, 1982, under the Hydro-Electric Commission Act 1944 (Tas.) the area of 14,125 hectares was vested in the Commission on 16th September, 1982, and the area of 780 hectares is to vest in the Commission on 2nd July, 1990. By further proclamations, two other areas, one within the Southwest Conservation Area and one to the north of the Southwest Conservation Area, were also vested in the Commission on 16th September, 1982, but those areas are not within the Parks and therefore not material for present purposes. The Commission intends to construct the works authorized by the Gordon River Hydro-Electric Power Development Act 1982 on the area of 14,125 hectares already mentioned. The water storage reservoir will have a surface area of 12,000 hectares, of which 9,500 hectares (including the area of 780 hectares already mentioned) will be within the Parks and 2,500 hectares will be outside their boundaries.

In the meantime the Bureau of the World Heritage Committee had met in June 1982, to consider nominations which had been received for the inclusion of a number of properties on the World Heritage List, and in relation to the nomination of the Parks had resolved to request the Australian authorities to provide (inter alia) a statement of intent regarding the construction of dams and the possibility of extending the protected area. On 8th December, 1982, the World Heritage Committee received from the Australian Government a response to this request. The Government stated that the Tasmanian Government is constructing a hydro-electric power scheme in the nominated area, and that the Australian Government has been and is discussing the scheme with the Tasmanian Government. The Government further stated that the possibility of extension of the protected area was considered at the time of the original nomination and that it was decided that it was inappropriate to include further areas. It was added that the nominated area lies mostly within the Southwest Conservation Area which provides an adequate buffer zone. The response concluded:

"The Australian Government considers that the Committee should inscribe the Western Tasmania Wilderness National Parks on the World Heritage List at its current session."

The World Heritage Committee met from 13th to 17th December, 1982, and decided to enter in the World Heritage List a number of properties including the Parks. The Committee made the following comment:

"The Committee is seriously concerned at the likely effect of dam construction in the area on those natural and cultural characteristics which make the property of outstanding universal value. In particular, it considers that flooding of parts of the river valleys would destroy a number of cultural and natural features of great significance, as identified in the ICOMOS and IUCN reports. The Committee therefore recommends that the Australian authorities take all possible measures to protect the integrity of the property. The Committee suggests that the Australian authorities should ask the Committee to place the property on the List of World Heritage in Danger until the question of dam construction is resolved."

ICOMOS is the International Council of Monuments and Sites, a body which, like IUCN, is recognized by Art. 8.3 of the Convention as having an advisory capacity. As the Committee's comment reveals, both ICOMOS and IUCN had submitted reports on the nomination of the Parks. IUCN, in its report, relied both on the fact that the area of the Parks is "one of the world's last great remaining temperate pristine wildernesses" and on the archaeological and anthropological importance of the area. It recommended that the Parks be added to the World Heritage List and that the Committee should express concern about the deleterious impact of the dam on the property. The report by ICOMOS contained only a provisional recommendation in support of the listing of the Parks, and was based on information concerning aboriginal sites within the Parks. However, in April 1983, ICOMOS reaffirmed its support for the listing of the Parks and stated that it was of the opinion "that the integrity of the cultural sites which justified the inscription of these Parks on the World Heritage List (in particular, Fraser Cave, Cave Bay Cave, Beginner's Luck Cave, etc.) must absolutely be maintained, along with the considerable archeological (sic) reserves which are in the process of being prospected". Although it is not material for present purposes, it may be remarked in the interests of accuracy that neither Cave Bay Cave nor Beginner's Luck Cave is within the area of the Parks.

The World Heritage (Western Tasmania Wilderness) Regulations were notified in the Gazette on 31st March, 1983 and amending Regulations were notified in the Gazette on 27th May, 1983. The World Heritage Properties Conservation Act was assented to on 22nd May, 1983. Regulations (S.R. No. 65 of 1983) made under that Act were notified on 25th May, 1983, and amending Regulations (S.R. No. 67 of 1983) were notified on 27th 7ay, 1983. Ten proclamations made under the Act were published in the Gazette on 26th May, 1983. Before I discuss the effect of the Act, Regulations and proclamations, it is convenient to refer to some other facts and allegations some of which are disputed, whose relevance is in question.

Further facts and disputed allegations

In the nomination submitted by the Commonwealth to the World Heritage Committee in November 1981, and in the reports received by the World Heritage Committee from its advisory bodies, it was said that the listing of the Parks in the World Heritage List is justified because the Parks form part of the cultural and natural heritage, and have "outstanding universal value".The Convention draws a distinction between the cultural heritage and the natural heritage. By Art. 1, the following shall be considered as "cultural heritage":

"monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: . . . sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view."

By Art. 2, for the purposes of the Convention, the following shall be considered as "natural heritage":

"natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty."

The Commonwealth contends, as the World Heritage Committee has accepted, that the Parks satisfy the criteria for listing under both heads. So far as the natural heritage is concerned, the Commonwealth contends that the Parks, including the 14,125 hectares which are now vested in the Commission and to which I shall henceforth refer as "the subject area", comprise "most of the last great temperate wilderness remaining in Australia and one of the last remaining in the world". It alleges that the Parks satisfy all the criteria required for nomination to the World Heritage List, and goes into some detail in describing the features which it alleges make the Parks of outstanding universal value.

The State of Tasmania acknowledges the significance and beauty of the area of the Parks as a whole, but points to the fact that of the 769,355 hectares which constitute the total area of the Parks, only 9,500 hectares (1.23 per cent of the total area) will be flooded, whereas the whole of the Parks (11.3 per cent of the total area of Tasmania) is or may be affected by the World Heritage Properties Conservation Act and regulations thereunder. It asserts that the natural features which justify the listing of the Parks are to be found in the Parks as a whole, and that the flooding of the small proportion of the Parks that will be affected by the dam will not destroy or significantly affect the whole. On any view of the law it is unnecessary to go into the details of the dispute as to these facts, or to resolve the dispute. It is not contended that the validity of either the Act or the World Heritage (Western Tasmania Wilderness) Regulations depends on the answer to the question whether the construction of the dam will significantly endanger, or detract from the value of, the area of the Parks as a whole. Evidence directed to the question whether the value and significance of the Parks as a whole will be diminished by the construction of the dam is not relevant to any issue in the case.

The subject area is said to be part of the cultural heritage because it contains significant Aboriginal archaeological sites. It is not clear that there are significant sites within the subject area, although there are certainly significant sites within the Parks. Two caves, Kutikina Cave (formerly known as Fraser Cave) and Deena Reena Cave, which are situated within the area of 780 hectares which is to vest in the Commission in 1990, are alleged to be "two of the seven archaeologically richest limestone cave sites in the Western Pacific region". It is alleged that the former cave is an immensely rich archaeological site and that recent radio carbon dating of deposit at basal levels of the site indicated human occupation dated to beyond 20,000 years ago. Older material is at present being radio-carbon-dated. Carbon samples from hearths in Deena Reena Cave have been dated to about 19,000 years ago. There are other caves in the lower Franklin River valley whose contents have not yet been investigated. It is alleged that investigations suggest that archaeological deposits contained in the limestone caves along the lower Franklin River valley are likely to transform archaeological knowledge of the stone tool technology of Ice Age man in Tasmania. Those cave sites, it is said, contain evidence of the economic and cultural systems of their inhabitants, who, in prehistoric times, were the most southerly-dwelling human beings on earth. It is further alleged that archaeological sites along the river terraces of the Denison and Franklin Rivers, together with the archaeological cave sites, make it highly probable that the subject area is capable of providing archaeologists and scholars generally with a comprehensive picture of settlement of a whole river system by early man and his more recent Aboriginal descendants. A site upon Flat Island, recently radiocarbon-dated to 15,000 years ago, is said to be the only known open archaeological site of such antiquity in Tasmania. The Commonwealth asserts that the proposed inundation would result in the loss and destruction of irreplaceable evidence concerning the occupation and settlement of an entire river system by Ice Age man and his more recent Aboriginal descendants, and that the flooding of the archaeological cave sites of the lower Franklin River valley would destroy their outstanding universal cultural and historical value.

The State of Tasmania on the other hand asserts that there are no significant archaeological sites in the subject area. It says that there are archaeological sites of some significance in the area of 780 hectares already referred to but alleges that there are many sites in Tasmania and elsewhere in Australia of equal or greater significance and that the likelihood of all of these sites ever being exhaustively investigated is remote, having regard to the cost. Deposits in Beginner's Luck Cave have been dated back 20,650 years and those in Cave Bay Cave have been dated back 22,750 years; as has been mentioned, those caves are not within the area of the Parks. It is further alleged by Tasmania that if the sites are to be inundated there will be a period of at least five years before any inundation and eight years before any complete inundation and that in any case inundation will not completely destroy the sites. It is alleged that there are means available to the Commonwealth, should it choose to do so, of salvaging or protecting one or more of the sites from flooding. Finally, it is claimed that no single site is of such importance for future archaeological investigation that it could be described as unique or irreplaceable.

According to the nomination made by the Commonwealth to the World Heritage Committee, although Aborigines frequented the coast during the early years of European contact, and although in 1832 and 1840 evidence of their presence was observed elsewhere in the Parks, they were not observed in the Franklin or Gordon Rivers area or inland in the southwest. No suggestion is made in the case for the Commonwealth that any Aborigines were on the subject land during the period from the earliest days of white occupation until after the construction of the dam commenced. The report made by IUCN to the meeting of the World Heritage Committee in December 1982, to which reference has already been made, suggested that the Tasmanian Aborigines were extinct, but other material before the Court indicates that there are some thousands of people of Aboriginal descent (but of mixed blood) who have been identified as the Aboriginal population of Tasmania.

Evidence which is directed to the archaeological importance of the subject area, the connexion of the Aboriginal people of Tasmania with that area, and the significance of the archaeological sites for members of the Aboriginal people, need be considered only if the validity of the impugned enactments depends on the judicial determination of these disputed questions of fact.

There are further allegations of fact, made by Tasmania, regarding the economic importance to the State of the generation of electricity by means of the Gordon below Franklin scheme, and the large sums of money already spent or committed in the construction of the dam. It does not appear that the validity of the enactments depends on the correctness of these allegations, which therefore need not be considered.

The World Heritage (Western Tasmania Wilderness) Regulations

The National Parks and Wildlife Conservation Act 1975, under which the World Heritage (Western Tasmania Wilderness) Regulations purport to have been made, is in one respect a somewhat unusual statute. Part II of that Act enables the Governor-General to declare an area to be a park or reserve or conservation zone, and provides for the consequences of such a declaration. Part III deals with the powers and functions of the Director of National Parks and Wildlife. Parts IV, V and VI deal with the administration of the National Parks and Wildlife Service and the powers of warders and rangers and with certain matters of finance and with the transfer of certain officers and employees of the public service. Part VII, which deals with certain miscellaneous matters, contains two sections each of which confers a power to make regulations. Section 69 reads as follows:

"(1) The Governor-General may make regulations for and in relation to giving effect to an agreement specified in the Schedule. (2) Regulations made under sub-section (1) in relation to an agreement that has not entered into force for Australia shall not come into operation on a date earlier than the date on which the agreement enters into force for Australia. (3) Sub-sections 71(5),(7) and (8) apply in relation to regulations made under this section in like manner as they apply in relation to regulations made under section 71."

The schedule refers to five agreements, including the Convention and a Convention on International Trade in Endangered Species of Wild Fauna and Flora signed at Washington on 3rd March, 1973. Section 71(1) provides as follows:

"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act."

Section 71(2) provides that without limiting the generality of sub-s.(1), regulations may be made for a number of specified purposes, including "(e) providing for the protection and preservation of parks and reserves and property and things in parks and reserves". Sub-sections(5) and (6) provide as follows:

"(5) The power to make regulations conferred by this Act may be exercised -

(a) in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case;and

(b) so as to make, as respects the cases in relation to which it is exercised, the same provision for all those cases or different provision for different cases or classes of case. (6) The power to make regulations conferred by this Act shall not be taken, by implication, to exclude the power to make provision for or in relation to a matter by reason only of the fact that - (a) a provision is made by this Act in relation to that matter or another matter; or (b) power is expressly conferred by this Act to make provision by regulation for or in relation to another matter."

Subsections (7) and (8) of s 71 are not material for present purposes.

The World Heritage (Western Tasmania Wilderness) Regulations purport to have been made under s 69. They contain a number of recitals, which refer inter alia to the Convention, the obligations of Australia thereunder, the nomination of the Parks and their inclusion in the World Heritage List and the effect of works which are proposed to be carried out, and are being carried out, within parts of the area of the Parks. By Regulation 2, the Regulations apply to the areas therein described, which together form the subject area of 14,125 hectares. Regulation 4 provides inter alia that the Regulations bind the Crown in the right of the Commonwealth or of the State of Tasmania. Regulation 5 in its amended form provides as follows:

"(1) Except with the consent of the Minister, a person shall not, within an area to which these Regulations apply, whether by himself or by his servant or agent-

(a) construct a dam or associated works or do any act in the course of, or for the purpose of, the construction of a dam or associated works;

(b) carry out any excavation works;

(c) erect a building or other substantial structure or do any act in the course of, or for the purpose of, the erection of a building or other substantial structure;

(d) kill, cut down, damage or remove any tree;

(e) construct or establish any road or vehicular track;

(f) use explosives; or

(g) carry out any other works.

Penalty: $5,000.

(2) Except with the consent of the Minister, a person shall not, within an area to which these Regulations apply, whether by himself or by his servant or agent, do any act, not being an act referred to in sub-regulation (1), that is likely adversely to affect the conservation or preservation of that area as part of the world cultural heritage or natural heritage.

Penalty: $5,000.

(3) Where -

(a) within an area to which these Regulations apply, a person does an act referred to in sub-regulation (1) without the consent of the Minister;and

(b) the controller of that area or of the relevant part of that area has failed to take reasonable steps to prevent the doing of the act, the controller of that area or of the relevant part of that area, as the case may be, is guilty of an offence and is punishable upon conviction by a fine not exceeding $5,000.

(4) For the purposes of sub-regulation (3), a person is the controller of an area or of a part of an area if the person is -

(a) the person in whom that area or part is vested; or

(b) if the person in whom that area or part is vested is not the occupier of that area or part - a person who is the occupier of that area or part, as the case may be."

Regulation 7 (which has since ceased to have any operation by reason of s. 19(2) of the Act) provided:

"(1) Where, but for this regulation, the operation of a provision of these Regulations would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by a court of competent jurisdiction.

(2) In sub-regulation (1), 'acquisition of property' and 'just terms' have the same respective meanings as in paragraph 51(xxxi) of the Constitution."

It was submitted on behalf of Tasmania that National Parks and Wildlife Conservation Act 1975, on its proper construction, authorizes the making only of regulations which carry into effect an agreement mentioned in the schedule in relation to parks and reserves which are established under Pt. II of the Act. This submission cannot be accepted. The power which s. 69 confers is to make regulations for and in relation to giving effect to an agreement specified in the schedule, and there is nothing in the section to limit the regulations that may be made to regulations which relate only to parks and reserves established under Pt. II. The section stands in sharp contrast to s 71, which gives a wide power to make regulations necessary or convenient to be prescribed for carrying out or giving effect to the Act, including regulations to protect and preserve parks and reserves. Section 71 would give ample power to carry any of the agreements specified in the schedule into effect in relation to parks and reserves established under the Act. Moreover at least one of the Conventions mentioned in the schedule - the Convention on International Trade in Endangered Species of Wild Fauna and Flora - could not be carried into effect by regulations which relate only to parks and reserves established under Pt. II. Section 69 has for one reason or another been placed in a context to which it is alien. The clear indication of the Parliament in including the section was to give a power additional to the regulation-making power conferred by s. 71 and unrelated to any other provision of the National Parks and Wildlife Conservation Act, except those parts of s. 69(3).

The World Heritage (Western Tasmania Wilderness) Regulations will be valid if s. 51 (xxix) of the Constitution to make laws with respect to "external affairs", and if the regulations themselves were regulations for and in relation to giving effect to the Convention.

The World Heritage Properties Conservation Act 1983

Whereas the World Heritage (Western Tasmania Wilderness) Regulations, and National Parks and Wildlife Conservation Act 1975, if valid, can be sustained only as an exercise of the power conferred by s. 51(xxix) of the Constitution, the Parliament, in enacting the World Heritage Properties Conservation Act 1983, invoked other sources of power as well. There is considerable overlapping not only between the provisions of the Act themselves but also between the regulations and proclamations thereunder. The object of those who framed the Act, regulations and proclamations was apparently to endeavour to ensure that one provision, made under one source of power, might prove effective, even though the others might fail.

By the Act, a reference to identified property is to be read as a reference to:

"(a) property forming part of the cultural heritage or natural heritage, being property that -

(i) the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article; or

(ii) has been declared by the regulations to form part of the cultural heritage or natural heritage;

(b) any part of property referred to in paragraph (a)."

The whole area of the Parks answers the description contained in par.(a)(i), and therefore is "identified property" within the meaning of the Act. In addition, the Regulations have declared certain areas to form part of the cultural heritage or natural heritage, so that those areas come within par. (a)(ii) of the definition. Regulation 2 declares that the following property forms part of the natural heritage:

(a) the whole of the Parks; and

(b) an area which surrounds a stretch of the Franklin River and a small stretch of the Gordon River and includes the dam site; this area forms part of the subject area and of the further area of 780 hectares which will be vested in the Commission and it is convenient to refer to it as "the Franklin natural area".

Regulation 3 declares that the following property forms part of the cultural heritage:

(a) an area adjacent to the Franklin River which is that part of the limestone belt which contains caves and other archaeological sites - it is convenient to refer to it as the "cultural area";

(b) Kutikina Cave and Deena Reena Cave; and

(c) all other archaeological sites within the cultural area.

The operative provisions of the Act are contained in three sections - ss. 9, 10 and 11. However, those sections only become effective when they are applied to particular property by proclamation made by the Governor-General under ss. 6, 7 or 8 as the case may be. A proclamation may be made only in respect of identified property as defined in s. 2, and only if certain other conditions are satisfied. The conditions are such as appear to have been thought by the Parliament to be necessary to render available the different heads of legislative power which have been invoked. Section 6 reads as follows:

"(1) A Proclamation may be made under subsection (3) in relation to identified property that is not in any State.

(2) A Proclamation may also be made under subsection (3) in relation to identified property that is in a State and is property to which one or more of the following paragraphs applies or apply:

(a) the Commonwealth has, pursuant to a request by the State, submitted to the World Heritage Committee under Article 11 of the Convention that the property is suitable for inclusion in the World Heritage List provided for in paragraph 2 of the Article, whether the request by the State was made before or after the commencement of this Act and whether or not the property was identified property at the time when the request was made;

(b) the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise;

(c) the protection or conservation of the property by Australia is necessary or desirable for the purpose of giving effect to a treaty (including the Convention) or for the purpose of obtaining for Australia any advantage or benefit under a treaty (including the Convention);

(d) the protection or conservation of the property by Australia is a matter of international concern (whether or not it is also a matter of domestic concern), whether by reason that a failure by Australia to take proper measures for the protection or conservation of the property would, or would be likely to, prejudice Australia's relations with other countries or for any other reason;

(e) the property is part of the heritage distinctive of the Australian nation -

(i) by reason of its aesthetic, historic, scientific or social significance; or

(ii) by reason of its international or national renown, and, by reason of the lack or inadequacy of any other available means for its protection or conservation, it is peculiarly appropriate that measures for the protection or conservation of the property be taken by the Parliament and Government of the Commonwealth as the national parliament and government of Australia.

(3) Where the Governor-General is satisfied that any property in respect of which a Proclamation may be made under this sub-section is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which section 9 applies."

The section is obviously enacted in reliance on the power conferred by s. 51(xxix) of the Constitution, and also on the implied inherent power resulting from nationhood. In fact five of the proclamations gazetted on 26th May, 1983, were made under s. 9 applies to the following areas:

(1) the Franklin Lower Gordon Wild Rivers National Park;

(2) the part of the Franklin natural area that is within the total area of 14,905 hectares (the excised area) which is made up of the 14,125 hectares and the 780 hectares already mentioned;

(3) the part of the cultural area that is within the excised area;

(4) Kutikina Cave and Deena Reena Cave; and

(5) an open archaeological site within the cultural area.

Section 9 reads as follows:

"(1) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent -

(a) to carry out any excavation works on any property to which this section applies;

(b) to carry out operations for, or exploratory drilling in connection with, the recovery of minerals on any property to which this section applies;

(c) to erect a building or other substantial structure on any property to which this section applies or to do any act in the course of, or for the purpose of, the erection of a building or other substantial structure on any property to which this section applies;

(d) to damage or destroy a building or other substantial structure on any property to which this section applies;

(e) to kill, cut down or damage any tree on any property to which this section applies;

(f) to construct or establish any road or vehicular track on any property to which this section applies;

(g) to use explosives on any property to which this section applies; or

(h) if an act is prescribed for the purposes of this paragraph in relation to particular property to which this section applies, to do that act in relation to that property.

(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent, to do any act, not being an act the doing of which is unlawful by virtue of sub-section (1), that damages or destroys any property to which this section applies.

(3) If an application of sub-sections (1) and (2) of this section in relation to particular property, being property that is relevant property by virtue of a particular paragraph or particular paragraphs of sub-section 6(2), would be within the powers of the Parliament if the property were relevant property by virtue only of that paragraph or those paragraphs, it is intended that sub-sections (1) and (2) of this section should have that application in relation to the property whether or not the property is also relevant property by virtue of another paragraph or other paragraphs of sub-section 6(2).

(4) In sub-section (3), 'relevant property' means property in respect of which a Proclamation may, by virtue of sub-section 6(2), be made under sub-section 6(3)."

Sections 7 and 10 rely on the corporations power conferred by s. 51(xx) of the Constitution. Section 7 provides:

"Where the Governor-General is satisfied that any identified property is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which section 10 applies."

Section 10(1) provides:

"In this section -

'foreign corporation' means a foreign corporation within the meaning of paragraph 51 (xx) of the Constitution;

'trading corporation' means a trading corporation within the meaning of paragraph 51 (xx) of the Constitution."

Section 10(2) commences as follows:

"Except with the consent in writing of the Minister, it is unlawful for a body corporate that -

(a) is a foreign corporation;

(b) is incorporated in a Territory; or

(c) not being incorporated in a Territory, is a trading corporation formed within the limits of the Commonwealth, whether itself or by its servant or agent - . . . "

Then follow pars. (d) to (m) which are identical with pars. (a) to (h) of s. 10 provide as follows:

"(3) Except with the consent in writing of the Minister, it is unlawful for a body corporate of a kind referred to in sub-section (2), whether itself or by its servant or agent, to do any act, not being an act the doing of which is unlawful by virtue of that sub-section, that damages or destroys any property to which this section applies.

(4) Without prejudice to the effect of sub-sections (2) and (3), except with the consent in writing of the Minister, it is unlawful for a body corporate of the kind referred to in paragraph (2) (c), whether itself or by its servant or agent, to do, for the purposes of its trading activities, an act referred to in any of paragraphs (2) (d) to (m) (inclusive) or an act referred to in sub-section (3)."

Three proclamations made under s. 7 and gazetted on 26th May, 1982, declare that s. 10 applies to the following property:

(1) that part of the Franklin natural area that is within the excised area;

(2) that part of the cultural area that is within the excised area; and

(3) Kutikina Cave and Deena Reena Cave.

By Regulation 4 of the World Heritage Properties Conservation Regulations (made under the Act) the relevant property is defined to mean:

(a) that part of the cultural area which is within the excised area;

(b) Kutikina Cave and Deena Reena Cave; and

(c) the open archaeological site.

Regulation 4(2) then provides as follows:

"For the purposes of paragraphs 9(1)(h) and 10(2)(m) of the Act, each of the following acts is prescribed in relation to each relevant property:

(a) carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that relevant property or of any part of that relevant property;

(b) carrying out works preparatory to the construction of such a dam;

(c) carrying out works associated with the construction or continued construction of such a dam."

Sections 8 and 11 are enacted in reliance on s. 51(xxvi) of the Constitution. Section 8 provides:

"(1) It is hereby declared that it is necessary to enact this section, section 11 and sub-sections 13(7) and 14(5) as special laws for the people of the Aboriginal race.

(2) A reference in this section to an Aboriginal site is a reference to a site -

(a) that is, or is situated within, identified property; and

(b) the protection or conservation of which is, whether by reason of the presence on the site of artifacts or relics or otherwise, of particular significance to the people of the Aboriginal race.

(3) Where the Governor-General is satisfied that an Aboriginal site is being or is likely to be damaged or destroyed or that any artifacts or relics situated on an Aboriginal site are being or are likely to be damaged or destroyed, he may, by Proclamation, declare that site to be a site to which section 11 applies.

Section 11(1) commences: "Except with the consent in writing of the Minister, it is unlawful for a person, whether by himself or by his servant or agent - ". Then follow pars. (a) to (c) which are identical with pars. (a) to (c) of s. 9(1). Paragraphs (d) and (e) then provide:

"(d) to damage or destroy any artifacts or relics situated on any site to which this section applies;

(e) to remove any artifacts or relics from any site to which this section applies;".

Then follow pars. (f) to (j) which are identical with pars. (e) to (h) of s. 11 provide as follows:

"(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent, to do any act, not being an act the doing of which is unlawful by virtue of sub-section (1) -

(a) that damages or destroys; or

(b) that is likely to result in damage to or the destruction of, any site to which this section applies or any artifacts or relics on any site to which this section applies. (3) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent, to do any act preparatory to the doing of an act that is unlawful by virtue of sub-section (2)."

Two proclamations gazetted on 26th May, declare the following sites to which the Act applies:

(a) Kutikina Cave and Deena Reena Cave; and

(b) the open archaeological site.

Regulation 5(1) defines the "relevant site" to mean:

(a) Kutikina Cave;

(b) Deena Reena Cave; and

(c) the open archaeological site.

Regulation 5(2) then provides as follows:

"For the purposes of paragraph 11(1)(j) of the Act, each of the following acts is prescribed in relation to each relevant site:

(a) carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that relevant site or of any part of that relevant site;

(b) carrying out works preparatory to the construction of such a dam;

(c) carrying out works associated with the construction or continued construction of such a dam."

Section 13(1), (5) and (7) provide as follows:

"(1) In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property."

"(5) Without limiting any other application of the Administrative Decisions (Judicial Review) Act 1977, for the purposes of the application of that Act in relation to a decision of the Minister to give or refuse to give a consent pursuant to section 9 or 10 in relation to particular property -

(a) a person whose use or enjoyment of any part of the property is, or is likely to be, adversely affected by the decision shall be taken to be a person aggrieved by the decision; and

(b) an organization or association of persons, whether incorporated or not, shall be taken to be a person aggrieved by the decision if the decision relates to a matter which is included in the objects or purposes of the organization or association and to which activities engaged in by the organization or association relate,"

"(7) Without limiting any other application of the Administrative Decisions (Judicial Review) Act 1977, for the purposes of the application of that Act in relation to a decision of the Minister to give or refuse to give a consent pursuant to section 11, any member of the Aboriginal race shall be taken to be a person aggrieved by the decision."

Section 14(1) gives the High Court and the Federal Court power, on the application of the Attorney-General or an interested person (including a member of the Aboriginal race: s. 14(5)), to grant an injunction to restrain acts made unlawful by ss. 9, 10 and 11.

An argument advanced by Tasmania is that in any case the Act is invalid in that it brings about an acquisition of property otherwise than on just terms. Section 17 of the Act, which is relevant to that argument, provides as follows:

"(1) In this section -

'acquisition of property' has the same meaning as in paragraph 51 (xxxi) of the Constitution;

'Regulations' means the World Heritage (Western Tasmania Wilderness) Regulations, as amended and in force from time to time under the National Parks and Wildlife Conservation Act 1975.

(2) The compensation that may be agreed upon, recommended or determined pursuant to this section in respect of an acquisition of property from a person may consist of or include all or any of the following:

(a) the payment of an amount to the person by instalments;

(b) the payment of an amount or part of an amount to the person subject to compliance by the person with specified conditions;

(c) the making of a payment or payments to the person the amount or amounts of which is or are subject to variation in the event of specified circumstances prevailing at a particular time or times.

(3) Where a person considers that the operation of this Act or of the Regulations has resulted in an acquisition of property from the person, the person may, by notice in writing sent by post to the Minister at his office at Parliament House, Canberra (being a notice that specifies an address to which a notice may be sent to the person by the Minister pursuant to sub-section (4)), request the Commonwealth to pay an amount of compensation specified in the notice (in this section referred to as the 'claimed amount') in respect of the acquisition.

(4) If, before the expiration of 3 weeks after the receipt by the Minister of a notice given by a person pursuant to sub-section (3), the Minister sends by post to the person at the address of the person specified in that notice a notice in writing stating that he does not consider that the operation of this Act or of the Regulations has resulted in an acquisition of property from the person, the person may make an application to the High Court requesting the Court to make a declaration that the operation of this Act or of the Regulations has resulted in an acquisition of property from the person.

(5) Where the Minister does not, before the expiration of 3 weeks after the receipt by him of a notice given by a person pursuant to sub-section (3), send a notice to the person pursuant to sub-section (4), the operation of this Act or of the Regulations, as the case requires, shall be taken to have resulted in an acquisition of property from the person.

(6) Where -

(a) by virtue of sub-section (5), the operation of this Act or of the Regulations is taken to have resulted in an acquisition of property from a person; or

(b) the High Court makes a declaration that the operation of this Act or of the Regulations has resulted in an acquisition of property from a person, the Commonwealth is liable to pay to the person such compensation in respect of the acquisition as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined in accordance with the succeeding provisions of this section.

(7) Where -

(a) the Commonwealth is liable, by virtue of sub-section (6), to pay compensation to a person in respect of an acquisition of property from the person, being an acquisition in respect of which the claimed amount is equal to or exceeds $5,000,000; and

(b) the person and the Commonwealth do not, before the expiration of 6 months after -

(i) in a case to which paragraph (6)(a) applies - the expiration of the period of 3 weeks referred to in sub-section (5); or

(ii) in a case to which paragraph (6)(b) applies - the day on which the declaration referred to in that paragraph was made - reach agreement as to the compensation payable in respect of the acquisition, the Governor-General shall, by notice in writing published in the Gazette, state that he intends, after the expiration of 14 days after the publication of the notice, to establish a Commission of Inquiry to inquire into and report to him on the compensation payable in respect of the acquisition.

(8) Where -

(a) the Governor-General has, pursuant to sub-section (7), given notice of his intention to establish a Commission of Inquiry to inquire into the compensation payable in respect of an acquisition of property from a person; and

(b) the person and the Commonwealth have not reached agreement as to the compensation payable, the Governor-General shall, by instrument in writing published in the Gazette, establish the Commission immediately after the expiration of the period of 14 days referred to in that sub-section and shall, by that instrument, appoint 3 persons to be the members of the Commission.

(9) Where -

(a) a Commission of Inquiry is to be established to inquire into the compensation payable in respect of an acquisition of property that is in a State; and

(b) before the expiration of the day before the day on which the Commission is to be established, the Premier of the State, by notice in writing furnished to the Governor-General, nominates a person for appointment as a member of the Commission, one of the persons appointed pursuant to sub-section (8) shall be the person so nominated.

(10) Where a Commission of Inquiry has been established to inquire into and report on the compensation payable in respect of an acquisition of property from a person, the Commission shall, as soon as practicable, commence to conduct an inquiry into that matter and, unless the person and the Commonwealth reach agreement as to the compensation payable, shall, before the expiration of 12 months after the establishment of the Commission, give a report in writing to the Governor-General setting out its recommendation as to the compensation that is fair and just in respect of the acquisition and setting out the reasons for its recommendation.

(11) If, after the establishment of a Commission of Inquiry to inquire into and report on the compensation payable in respect of an acquisition of property from a person and before the Commission has given a report in writing to the Governor-General under subsection (10), the person and the Commonwealth reach agreement as to the compensation payable, the Governor-General shall, by instrument in writing, abolish the Commission and terminate the appointments of the members of the Commission.

(12) Before the expiration of 3 months after the day on which he receives a report of a Commission of Inquiry in relation to the payment of compensation in respect of an acquisition of property from a person, the Governor-General shall, if the person and the Commonwealth have not reached agreement as to the compensation payable, having regard to the report of the Commission and to such other matters as the Governor-General considers relevant, determine the compensation that the Governor-General considers to be fair and just in respect of the acquisition.

(13) Where the Governor-General makes a determination pursuant to sub-section (12) in relation to an acquisition of property from a person, the Minister shall, before the expiration of 14 days after that determination is made, give notice in writing to the person setting out the terms of the determination.

(14) Where the operation of this Act or of the Regulations has resulted in or is taken to have resulted in an acquisition of property from a person and -

(a) the acquisition is an acquisition in respect of which the claimed amount is less than $5,000,000;

(b) a Commission of Inquiry does not give a report in writing to the Governor-General in accordance with sub-section (10) before the expiration of the period of 12 months referred to in that sub-section otherwise than by reason of the person and the Commonwealth having reached agreement as to the compensation payable; or

(c) the person considers that the compensation determined by the Governor-General pursuant to subsection (12) in respect of the acquisition is not fair and just, the Federal Court may, on the application of the person, determine the compensation that is fair and just in respect of the acquisition.

(15) The Royal Commissions Act 1902 applies to, and in relation to, an inquiry by a Commission of Inquiry established under this section as if the Commission of Inquiry were a Commission of Inquiry issued by the Governor-General by Letters Patent pursuant to that Act.

(16) A reference in this section to the operation of this Act shall be read as including a reference to the operation of an act done pursuant to this Act."

Section 20 provides as follows:

"(1) The High Court has jurisdiction with respect to matters arising under section 14 and sub-section 17(4).

(2) The Federal Court has jurisdiction with respect to matters arising under section 14 and sub-section 17(14)."

A regulation-making power is conferred by s. 21.

The Convention

As has already appeared, the Commonwealth, in seeking to uphold the validity of the World Heritage (Western Tasmania Wilderness) Regulations-and of the Act, relies in part upon the external affairs power (s 51(xxix)) and on its obligations under the Convention. On 16th November, 1972, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention, which was ratified by Australia on 22nd August, 1974, and which came into force on 17th December, 1975. At present, seventy-four countries are parties to the Convention.

The preamble to the Convention recites that the General Conference (by):

"Noting that the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction;

"Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world;

"Considering that protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific and technical resources of the country where the property to be protected is situated;

"Recalling that the Constitution of the Organization provides that it will maintain, increase and diffuse knowledge, by assuring the conservation and protection of the world's heritage, and recommending to the nations concerned the necessary international conventions;

"Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong;

"Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole;

"Considering that, in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an effective complement thereto;

"Considering that it is essential for this purpose to adopt new provisions in the form of a convention establishing an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organized on a permanent basis and in accordance with modern scientific methods;

"Having decided, at its sixteenth session, that this question should be made the subject of an international convention,

"Adopts this sixteenth day of November, 1972, this Convention."

The definitions of Arts. 1 and 2 have already been mentioned. Article 3 provides: "it is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above."

Part II of the Convention, which is headed "National Protection and International Protection of the Cultural and Natural Heritage", is of sufficient importance to be set out in full. Its provisions are as follows:

"Article 4

Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

"Article 5

To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:

(a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;

(b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions;

(c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage;

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and

(e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

"Article 6

1. Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.

2. The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and preservation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request.

3. Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

"Article 7

For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage."

Article 8 provides for the establishment of the World Heritage Committee and for the recognition of ICOMOS and IUCN. Article 11 is important. It reads as follows:

"1. Every State Party to this Convention shall, in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the list provided for in paragraph 2 of this Article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance.

2. On the basis of the inventories submitted by States in accordance with paragraph 1, the Committee shall establish, keep up to date and publish, under the title of "World Heritage List", a list of properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years.

3. The inclusion of a property in the World Heritage List requires the consent of the State concerned. The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute.

4. The Committee shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of "List of World Heritage in Danger", a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention. This list shall contain an estimate of the cost of such operations. The list may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large-scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods, and tidal waves. The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately.

5. The Committee shall define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included in either of the lists mentioned in paragraphs 2 and 4 of this article.

6. Before refusing a request for inclusion in one of the two lists mentioned in paragraphs 2 and 4 of this article, the Committee shall consult the State Party in whose territory the cultural or natural property in question is situated.

7. The Committee shall, with the agreement of the States concerned, co-ordinate and encourage the studies and research needed for the drawing up of the lists referred to in paragraphs 2 and 4 of this article."

Article 12 provides that the fact that a property belonging to the cultural or natural heritage has not been included in either of the lists mentioned in Arts. 11.2 and 11.4 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists. Article 13 provides, inter alia, as follows:

"1. The World Heritage Committee shall receive and study requests for international assistance formulated by States Parties to this Convention with respect to property forming part of the cultural or natural heritage, situated in their territories, and included or potentially suitable for inclusion in the lists referred to in paragraphs 2 and 4 of Article 11. The purpose of such requests may be to secure the protection, conservation, presentation or rehabilitation of such property.

2. Requests for international assistance under paragraph 1 of this article may also be concerned with identification of cultural or natural property defined in Articles 1 and 2, when preliminary investigations have shown that further inquiries would be justified.

3. The Committee shall decide on the action to be taken with regard to these requests, determine where appropriate, the nature and extent of its assistance, and authorize the conclusion, on its behalf, of the necessary arrangements with the government concerned.

4. The Committee shall determine an order of priorities for its operations. It shall in so doing bear in mind the respective importance for the world cultural and natural heritage of the property requiring protection, the need to give international assistance to the property most representative of a natural environment or of the genius and the history of the peoples of the world, the urgency of the work to be done, the resources available to the States on whose territory the threatened property is situated and in particular the extent to which they are able to safeguard such property by their own means."

By Art. 15 a trust fund, called the World Heritage Fund, is established. It is provided that its resources shall consist, inter alia, of compulsory and voluntary contributions made by the States Parties to the Convention. Articles 16, 17 and 18 are as follows:

"Article 16

1. Without prejudice to any supplementary voluntary contribution, the States Parties to this Convention undertake to pay regularly, every two years, to the World Heritage Fund, contributions, the amount of which, in the form of a uniform percentage applicable to all States, shall be determined by the General Assembly of States Parties to the Convention, meeting during the sessions of the General Conference of the United Nations Educational, Scientific and Cultural Organization. This decision of the General Assembly requires the majority of the States Parties present and voting, which have not made the declaration referred to in paragraph 2 of this Article. In no case shall the compulsory contribution of States Parties to the Convention exceed 1 per cent of the contribution to the Regular Budget of the United Nations Educational, Scientific and Cultural Organization.

2. However, each State referred to in Article 31 or in Article 32 of this Convention may declare, at the time of the deposit of its instruments of ratification, acceptance or accession, that it shall not be bound by the provisions of paragraph 1 of this Article.

3. A State Party to the Convention which has made the declaration referred to in paragraph 2 of this Article may at any time withdraw the said declaration by notifying the Director-General of the United Nations Educational, Scientific and Cultural Organization. However, the withdrawal of the declaration shall not take effect in regard to the compulsory contribution due by the State until the date of the subsequent General Assembly of State Parties to the Convention.

4. In order that the Committee may be able to plan its operations effectively, the contributions of States Parties to this Convention which have made the declaration referred to in paragraph 2 of this Article, shall be paid on a regular basis, at least every two years, and should not be less than the contributions which they should have paid if they had been bound by the provisions of paragraph 1 of this Article.

5. Any State Party to the Convention which is in arrears with the payment of its compulsory or voluntary contribution for the current year and the calendar year immediately preceding it shall not be eligible as a Member of the World Heritage Committee, although this provision shall not apply to the first election.

The terms of office of any such State which is already a member of the Committee shall terminate at the time of the elections provided for in Article 8, paragraph 1 of this Convention.

"Article 17

The States Parties to this Convention shall consider or encourage the establishment of national, public and private foundations or associations whose purpose is to invite donations for the protection of the cultural and natural heritage as defined in Articles 1 and 2 of this Convention.

"Article 18

The States Parties to this Convention shall give their assistance to international fund-raising campaigns organized for the World Heritage Fund under the auspices of the United Nations Educational, Scientific and Cultural Organization. They shall facilitate collections made by the bodies mentioned in paragraph 3 of Article 15 for this purpose."

Articles 19 and 20 provide as follows:

"Article 19

Any State Party to this Convention may request international assistance for property forming part of the cultural or natural heritage of outstanding universal value situated within its territory. It shall submit with its request such information and documentation provided for in Article 21 as it has in its possession and as will enable the Committee to come to a decision.

"Article 20

Subject to the provisions of paragraph 2 of Article 13, sub-paragraph (c) of Article 22 and Article 23, international assistance provided for by this Convention may be granted only to property forming part of the cultural and natural heritage which the World Heritage Committee has decided, or may decide, to enter in one of the lists mentioned in paragraphs 2 and 4 of Article 11."

Articles 22 and 23 provide:

"Article 22

Assistance granted by the World Heritage Committee may take the following forms:

(a) studies concerning the artistic, scientific and technical problems raised by the protection, conservation, presentation and rehabilitation of the cultural and natural heritage, as defined in paragraphs 2 and 4 of Article 11 of this Convention;

(b) provision of experts, technicians and skilled labour to ensure that the approved work is correctly carried out;

(c) training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage;

(d) supply of equipment which the State concerned does not possess or is not in a position to acquire;

(e) low-interest or interest-free loans which might be repayable on a long-term basis;

(f) the granting, in exceptional cases and for special reasons, of non-repayable subsidies.

"Article 23

The World Heritage Committee may also provide international assistance to national or regional centres for the training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage."

Articles 27 and 28 are as follows:

"Article 27

1. The States Parties to this Convention shall endeavour by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage defined in Articles 1 and 2 of the Convention.

2. They shall undertake to keep the public broadly informed of the dangers threatening this heritage and of activities carried on in pursuance of this Convention.

"Article 28

States Parties to this Convention which receive international assistance under the Convention shall take appropriate measures to make known the importance of the property for which assistance has been received and the role played by such assistance."

By Art. 29, the States Parties to the Convention are obliged, in the reports which they submit to the General Conference of UNESCO, to give information on the legislative and administrative provisions which they have adopted and other action which they have taken for the application of the Convention, together with details of the experience acquired in the field. The reports are to be brought to the attention of the World Heritage Committee which will itself report to the General Conference of UNESCO.

Article 34 is a so-called "federal clause". It provides as follows:

"The following provisions shall apply to those States Parties to this Convention which have a federal or non-unitary constitutional system:

(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States;

(b) with regard to the provisions of this convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption."

The Effect of the Convention

It is convenient at this stage to point out certain material features of the Convention. In the first place, the cultural heritage and natural heritage (which in this summary I shall together describe as "the heritage") comprises only properties "of outstanding universal value". Secondly, the words used in describing the obligations which the States Parties to the Convention assume differ materially from one article to another. By some articles, the States Parties to the Convention "undertake" to do or not to do certain things (see Arts. 6.2, 6.3 and 16.1 and cf. Art. 27.2) and by other articles it is provided, without qualification, that a State Party to the Convention "shall" do certain things; see Arts. 17, 18 and 29.1. At first sight, these obligations might appear to be absolute, although in some cases a further examination of their provisions and of the context in which they appear makes it doubtful whether an absolute obligation is intended to be created. For example, the undertaking given in Art. 6.2 is "in accordance with the provisions of this Convention, to give their help . . .", and the other provisions of the Convention do not make it clear what help one State Party to the Convention is required to give to another. Question of that kind, however, do not need to be decided in the present matter. Other articles, instead of imposing in terms an outright obligation, require a State Party to the Convention to "endeavour" to do something (see Art. 27.1) or to do something "in so far as possible"; see Art. 11. Article 5, which is important for present purposes, combines both these qualifications; it provides that, for the purpose of ensuring that effective and active measures are taken for the protection, conservation and presentation of the heritage situated on its territory, a State Party to the Convention shall endeavour, in so far as possible, and as appropriate for each country, (i) to adopt a general policy, (ii) to set up services, (iii) to develop studies and research and work out operating methods, (iv) to take appropriate legal and other measures necessary for the identification, protection, conservation, presentation and rehabilitation of the heritage, and (v) to foster the establishment or development of national or regional training centres and to encourage scientific research. Another important provision, Art.4, uses yet another formula; it recites that each State Party to the Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the heritage situated on its territory belongs primarily to that State and then provides that each State Party to the Convention will "do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation ... which it may be able to obtain". The meaning and effect of Arts. 4 and 5 will be of great importance in the present matter.

Thirdly, it is made clear by the Convention that the sovereignty of a State Party to the Convention is to be fully respected; see Art.6.1. Property on the territory of a State Party to the Convention may be identified as part of the heritage only by that State: Arts.3 and 4 and see Art.5. No property may be included in the World Heritage List, or the List of World Heritage in Danger, unless the State on whose territory the property is situated has consented to its inclusion in the former list: Art.11.

Fourthly, the recognition which the States Parties to the Convention give to the principle that the heritage is the heritage of the world, for whose protection the international community should cooperate, is not only subject to full respect for the sovereignty of the State on whose territory the heritage is situated, but is also "without prejudice to property rights provided by national legislation": Art.6.1.

Fifthly, the fact that a property is listed on the World Heritage List imposes no duties on the State on whose territory that property is situated. The only obligations which are cast upon a State Party to the Convention by reason of the listing of a property are those set out in Art. 6.2. The undertaking in Art.6.2. is to help in the identification, protection, conservation and preservation of the heritage referred to in pars.2 and 4 of Art. 11 - which seems to mean the properties forming part of the heritage and included in the World Heritage List or the List of World Heritage in Danger - if the States on whose territory it is situated so request. Article 6.2 imposes an obligation on one State to help another, on whose territory a property included in one or other of the lists is situated, if the latter State requests it, and does not impose any obligation on a State to do anything with regard to heritage (listed or otherwise) within its own territory. Article 6.3 imposes an obligation not to take deliberate measures which might damage directly or indirectly the heritage situated on the territory of another State; again the duty is imposed on one State in respect of property situated on the territory of another, although in this case any property forming part of the heritage, whether listed or not, is covered by the paragraph. The practical importance of listing a property on the World Heritage List is that the listing satisfies a condition precedent to the grant of assistance by the World Heritage Committee; see Arts. 13.1 and 20. It is true that assistance may be granted in some other cases - in particular, in relation to the identification of cultural or natural property, or for the training of staff and specialists, or where the property is potentially suitable for listing and the World Heritage Committee may decide to enter it on the list - but the fact that the property is listed makes it clear that the World Heritage Committee must receive and study a request for assistance with respect to that property.

Sixthly, the Convention contains a federal state clause: Art.34. Finally, the Convention contains no provision whereunder a State Party to the Convention which considers that another State Party is not giving effect to the Convention may bring the matter to the attention of the World Heritage Committee, or may otherwise ventilate its grievances, and no provision for the resolution of disputes or complaints as to an alleged failure to observe the Convention - no such provision as, for example, appears in Arts. 11-16 of the International Convention on the Elimination of All Forms of Racial Discrimination.

In the light of this survey of the relevant provisions of the Convention it is now possible to consider the nature of the obligations imposed by Arts.4,5 and 6. It has already been remarked that whereas some other articles use the language of a formal promise ("undertake") or that of command ("shall"), the expressions uses in Arts.4 and 5 appear designed to leave it to the States Parties to the Convention to determine what steps, if any, they will take to achieve its objectives. Although Art.4 recites that each State Party recognizes that the duty of ensuring, inter alia, the protection of the heritage situated on its territory belongs primarily to that State, the operative words of the article provide that each State Party "will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and cooperation ... which it may be able to obtain". Article 5 provides that each State Party "shall endeavour, in so far as possible, and as appropriate for each country" to do the various things specified in the succeeding paragraphs of the article. The words of those paragraphs themselves indicate the width of the discretion left to the States Parties to the Convention. Thus each State Party is required to endeavour, in so far as possible, and as appropriate, to adopt a general policy with the aim described in par. (a). That obligation could hardly be more vaguely expressed. The services to be set up under par. (b) are to have "an appropriate" staff. The legal measures which the State Party is to endeavour, in so far as possible, and as appropriate, to take under par. (d) are "appropriate legal ... measures".

The question that then arises is whether Arts. 4 and 5 impose any legal obligation upon State Parties to the Convention. "Not all treaties are enforceable, this depends upon the intention of the Parties": O'Connell, International Law, (2nd ed., 1970), vol. 1, p. 246. "It is often impossible to distinguish between pronouncements of political intent and declarations giving rise to legal obligations. One instrument might well be a combination of both types of undertaking. Or, indeed, what is apparently a treaty may be devoid of legal content ... The fact that a treaty does not prescribe conduct in a manner enforceable by law is a common enough occurrence for international law to recognise and accept". Greig, International Law, (2nd ed.), pp. 460-1. (See also International Law Being The Collected Papers of Hersch Lauterpacht, vol. 4, at pp. 110-113.) J.E.S. Fawcett, the learned author of an article, "The Legal Character of International Agreements" (1953), B.Y.B.I.L. vol. 30 381, has said, at p. 390: "Certain provisions in international agreements appear to negative any intention to create legal relations. These are provisions which in one way or another leave it to the parties themselves to determine the extent of the obligations they have assumed and the mode of performance." He went on, at p. 391, to say: "Similarly, it is doubtful whether undertakings 'to use best endeavours' or 'to take all possible measures' can in most cases amount to more than declarations of policy, or of good will towards the objects of the agreement."

It is unnecessary to consider whether if the words of Arts. 4 and 5 which purport to impose an obligation had appeared in, for example, a commercial contract, they would, in an appropriate context have imposed a duty to do what was reasonably possible and fitting in the circumstances. It is however impossible to conclude that Arts. 4 and 5 were intended to impose a legal duty of that kind on the States Parties to the Convention. If the conduct which those articles purport to prescribe was intended to be legally enforceable, the obligations thereby created would be of the most onerous and far reaching kind. The obligations would extend to any property which might reasonably be regarded as cultural or natural heritage within the meaning of Arts. 1 and 2 of the Convention, whether or not it was included on the World Heritage List, and would require a State Party to the Convention to take all legal measures within its constitutional power that might reasonably be regarded as appropriate for the identification and protection of such property, and to apply all of its financial resources that it could possibly make available for the same purpose; there would of course be further obligations, but what I have said suffices to indicate the nature of the burden which the articles would impose. The very nature of these obligations is such as to indicate that the States Parties to the Convention did not intend to assume a legal obligation to perform them.

On the proper construction of the articles, the questions what a State Party can do, how far its resources extend, what is possible and what is appropriate are clearly left to the State Party itself to decide. This conclusion is strongly supported by the contrast already mentioned between the language of Arts. 4 and 5 and that used in other articles which appear to express an intention to create a strictly binding obligation. It is true that some of those other articles which use language of that kind present difficulties of their own. In addition to Art. 6.2, to which I have already referred, it is sufficient to mention Art. 16, under which, it has been said, "obligatory contributions become voluntary and voluntary ones become obligatory and even attract a penalty": Goy, "The International Protection of the Cultural and Natural Heritage" (1973), Neth. Y.B.I.L., 4 117, at p. 135. Nevertheless the change in terminology between the various articles indicates that Arts. 4 and 5 were not intended to give rise to an undertaking. Indeed, any binding obligation to perform Arts, 4 and 5 would be inconsistent with the emphatic recognition of the respect for the sovereignty of each State Party, and with the recognition of the undoubted right of each State Party to decide, for itself, in the first instance, whether or not any property on its territory should be listed on the World Heritage List, or whether any international assistance should be provided for the identification and protection of any such property.

Whether or not the undertakings in pars. 2 and 3 of Art. 6 (which are not relevant for present purposes) are enforceable, it seems clear that Art. 6.1 does not oblige a State Party to the Convention to take any particular individual action for the protection of the heritage. Article 6.1 recognizes the duty of the international community as a whole to cooperate for the protection of the heritage, although at the same time it reveals an intention to respect national sovereignty and not to prejudice property rights. Article 6.1, like Art. 7, appears designed to further the securing of international cooperation which is an important aim of the Convention. The importance of that objective is shown by the preamble to the Convention, since the purpose for which, according to the last paragraph of the preamble, the Convention is adopted is the purpose mentioned in the penultimate paragraph, namely that "the international community as a whole" should "participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an effective complement thereto".

The conclusion which I have reached is that although the Convention imposes on the States Parties to the Convention certain obligations, Arts. 4, 5 and 6 do not impose on any State Party an obligation to take any specific action, and there is no other provision of the Convention which imposes any legal obligation on Australia to take action to protect the Parks from possible or actual damage. In my opinion the relevant articles of the Convention leave it to each State Party "to determine the extent of the obligations ... and the mode of performance", or in other words to decide whether it shall take any action at all to carry out what purport to be the obligations imposed by the relevant articles. In the language of domestic law, the words of the Convention show that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise and in those circumstances the promise is illusory and no binding obligation is created: see Loftus v. Roberts (1902), 18 T.L.R. 532 ; Thorby v. Goldberg (1964), 112 CLR 597 , at p. 605; and Placer Development Ltd. v. The Commonwealth (1969), 121 CLR 353 , at pp. 356, 360-1. The obligations imposed by the Convention are political or moral, but not legally binding.

Finally, it is necessary to refer to the effect of Art. 34, the federal clause. Paragraphs (a) and (b) of that article are not necessarily mutually exclusive. It is of course possible that in a federal state the implementation of the provisions of the Convention may come under the legal jurisdiction of both the federal legislative power and that of individual constituent states. In the present case, assuming that any legal obligations were created, there is no doubt that their implementation would come within the legal jurisdiction of Tasmania. It would be a question whether they would also come within the legal jurisdiction of the Commonwealth. Further reference will be made to that question.

The significance of these conclusions in relation to the questions which arise under the Constitution remains to be considered.

Travaux preparatories

The question arises whether it is permissible to consider the preparatory work (travaux preparatoires) of the Convention as an aid to its interpretation. The interpretation of treaties is now governed by the Vienna Convention on the Law of Treaties. The general rule of interpretation is laid down in Art. 31 of that Convention, pars. 1 and 2 of which are as follows:

"1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty."

Article 32, which is headed "Supplementary means of interpretation" provides as follows:

"Article 32

"Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable."

The Vienna Convention had not come into force on 16th November, 1972, when UNESCO adopted the Convention, or for that matter on 22nd August, 1974, when Australia deposited its instrument of ratification, or on 17th December, 1975, when the Convention entered into force; it therefore did not apply to the Convention (see Art. 4 of the Vienna Convention). However, it has been said that the Vienna Convention, in this respect, did no more than endorse or confirm the existing practice: see Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251 , at pp. 276 and 282, and see the references in an article by J.G. Merrills, "Two Approaches to Treaty Interpretation", (1968-9) A.Y.B.I.L. 55,American Year Book of International Law at p. 57. The actual question decided in Fothergill v. Monarch Airlines Ltd., whether in considering a Convention which had been given the force of law by an English statute, it was right to use the travaux preparatoires, is different from that which arises in the present case, whether it is necessary to consider the effect of the Convention, not as part of the law of Australia, but as an international agreement which is said to assist in making available the power conferred by s. 51(xxix). There has been some controversy as to the exact part to be played by travaux preparatories in the process of construction - it is discussed in many places, including McNair, Law of Treaties (1961), at pp. 411- 423; Elias, The Modern Law of Treaties (1974), at pp. 79-84 and Sinclair, The Vienna Convention on the Law of Treaties (1973), at pp. 71-6 - but it is a controversy which I need not join. If there is an ambiguity, the travaux preparatoires may help to resolve it. Even if there is no ambiguity, it appears that the travaux preparatoires may be used as a supplementary means of interpretation, to confirm the meaning which appears from the treaty itself.

During the course of the preparatory work in connexion with the Convention, the strength of the obligations which the original draft sought to impose was considerably diminished. In the preliminary draft, Art. 4 (then numbered Art. 3) read as follows:

"The States Parties to this Convention recognize that the duty of ensuring the protection, development and transmission to future generations of the property referred to in Article 2 situated on their territory is primarily theirs. To this end, they undertake to work to the utmost of their own resources and with any international assistance and co-operation, in particular financial, artistic, scientific and technical, which they may be able to obtain."

The introductory words of Art. 5 (numbered 4 in the preliminary draft) read:

"To ensure as effective a protection and as active a development as possible of all monuments, groups of buildings and sites on their territory, as appropriate for each country and in conformity with the relevant provisions of existing international conventions and recommendations, they undertake in particular..."

Paragraph (d) of that article then read:

"to take all legal, scientific, technical, administrative and financial measures necessary for the upkeep, restoration and rehabilitation of this heritage."

The preliminary report prepared for UNESCO stated that Art.3 (as it then was) "places States on whose territory the immovable cultural property is situated under a formal obligation to ensure its protection". The report went on to say: "Under the terms of Article 4 the States Parties to the Convention undertake a certain number of commitments to provide the most effective protection possible. . . " However, a number of nations proposed amendments to these articles; in particular, Italy considered that "to preclude the possibility of interference in the domestic affairs of States Parties to the Convention, Articles 3 and 4 should not be presented in the form of statutory commitments", and Australia considered that "Article 4, defining the arrangements for national protection, is inappropriate to the convention and should appear only in the recommendation". These observations were taken into account, and in the revised draft what were originally intended as undertakings were replaced by promises less strict. The Secretariat, in its comments on the revised draft said:

"The revised draft convention has considerably reduced the scope of commitments to be undertaken by States with regard to national activities."

In Art. 6, what is now the duty of the international community to cooperate for the protection of the heritage was originally a duty to protect the heritage; and among other amendments the reference to property rights was inserted, and it was made clear that help is to be given only on request by the State concerned. Other changes during the preparatory work showed a consistent tendency to weaken the force of the original draft. The provisions requiring the consent of the State Party concerned before a property is included in the World Heritage List did not appear in Art. 11 in its original form but was inserted in the course of the preparatory work. There was no federal clause of the present kind in the preliminary draft.

In the final report furnished to UNESCO by a committee of experts it was said, by way of comment on Art. 5:

"Some delegations raised the question whether a provision relating to protection at the national level should not be included in the Recommendation rather than in the Convention. Some delegations would have preferred a provision containing no details with regard to the form that national protection should take. The majority of the Committee members, however, believed that a provision stipulating that protection should be afforded at the national level and specifying the best methods of ensuring such protection should be included in the Convention."

In relation to Art. 6 it was said:

"While expressly retaining their sovereignty and any existing property rights to the cultural and natural heritage situated on their territory, the States Parties to the Convention recognize that the cultural and natural heritage included in the lists referred to in Article 11 constitutes a universal heritage and that they consequently have responsibilities for it on the international level."

On 16th November, 1972, the day on which the Convention was adopted, UNESCO also adopted a recommendation concerning the protection, at national level, of the cultural and natural heritage. For the purposes of the recommendation, the heritage comprised property of "special value" - not necessarily "of outstanding universal value" (see pars. 1 and 2). Paragraph 3 of the recommendation stated that "in conformity with their jurisdictional and legislative requirements, each State should formulate, develop and apply as far as possible a policy whose principal aim should be to co-ordinate and make use of all scientific, technical, cultural and other resources available to secure the effective protection, conservation and presentation of the cultural and natural heritage". Paragraph 18 provided:

"Member States should, as far as possible, take all necessary scientific, technical and administrative, legal and financial measures to ensure the protection of the cultural and natural heritage in their territories. Such measures should be determined in accordance with the legislation and organization of the State."

Legal measures were dealt with by pars. 40-48.

The fact that a recommendation was adopted at the same time as the Convention, and the comments (included) in the final report, suggest that Arts. 4 and 5 were intended to have higher status than a mere recommendation, and were, to use the words of the report, intended to create "responsibilities. . . on the international level". On the other hand, the changes that occurred in the course of the preparatory work, and in particular the abandonment of the word "undertake", and the substitution of the present words of the articles, support the view that it was not intended by those articles to bind the States Parties to any course of action upon which they themselves were not prepared to embark. Similarly the changes made to Art. 6 show that the performance of the duty of international cooperation was not intended to override national sovereignty or individual proprietary rights.

On the whole, the travaux preparatories confirm the meaning which the words of the relevant articles of the Convention themselves reveal.

The External Affairs Power

It is now possible to consider whether s 69 of the National Parks and Wildlife Conservation Act 1975 and World Heritage Properties Conservation Act 1983, or either of them, is validly enacted under the power given by s. 51(xxix) to make laws for the peace order and good government of the Commonwealth with respect to external affairs, and whether the World Heritage (Western Tasmania Wilderness) Regulations are validly made under the former Act. Although the scope of the power conferred by s 51(xxix) has recently been discussed in Koowarta v. Bjelke-Petersen (1982), 56 ALJR 625, it would be altogether too optimistic to suppose that the Court has reached a complete solution of the very real difficulties which that paragraph creates. The words of the paragraph are ambiguous, but I would respectfully adopt as accurate the paraphrase suggested by Stephen J. in Koowarta (supra), at p. 643:". . . such of the public business of the national government as relates to other nations or other things or circumstances outside Australia." That paraphrase of the words of the paragraph does not completely define the limits of the power. However, three propositions may be taken as settled by the authorities so far decided on s. 51(xxix). The power given by that paragraph is an independent one and is not merely ancillary to other powers possessed by the Parliament; it extends to enable the Parliament to legislate with regard to matters and things done entirely within Australia; and its exercise is subject to the restrictions imposed by the Constitution, whether expressly or by implication. Those propositions, however, do not go far in providing an answer to the questions in the present case. One important question which now arises is the same as that which on one view arose in Koowarta, namely, does the power enable the Parliament to legislate to give effect to any treaty to which Australia is a party, even though the law deals with matters which occur, and can occur only, within Australia, and even though the performance of the treaty in its relevant aspects involves no reciprocity or mutuality of relationship between Australia and the other parties to the treaty? Put in another way, this question is "whether this power to implement treaty obligations is subject to any and if so what overriding qualifications derived from the federal nature of our Constitution": per Stephen J. in Koowarta (supra), at p. 643. Another important question which did not arise in Koowarta, but which produced disagreement in R. v. Burgess; Ex parte Henry (1936), 55 CLR 608 , is whether legislation, to be valid, must be in conformity with the treaty which it professes to be executing or whether the fact that a treaty has been made enables the Parliament to legislate generally with regard to the subject matter with which the treaty deals.

It is clear that in some circumstances the Parliament can pass a law to give effect within Australia to an international convention to which Australia is a party. It is equally clear that the existence of an international convention is not a necessary condition of the exercise of the power given by s. 51(xxix). If a matter can properly be said to relate to other nations, or to things external to Australia, the Parliament may pass laws with respect to it, even though it is not regulated by any international agreement. However, in the present case it is suggested that the power is attracted by the Convention, and possibly also by the recommendation of UNESCO, and there are no other features of the case that make it necessary to discuss in what circumstances the power may be exercised when no international agreement has been reached.

Four members of the Court in Koowarta rejected the notion that s. 51(xxix) empowers the Parliament to give effect in Australia to any international agreement to which Australia is a party, whatever its subject matter and whatever the circumstances. In that case, although Stephen, Mason, Murphy and Brennan JJ. joined in holding the challenged legislation to be valid, Stephen J. differed from the other members of the majority on this question. Mason J. expressed his opinion as follows, at p 651: "Agreement by nations to take common action in pursuit of a common objective evidences the existence of international concern and gives the subject-matter of the treaty a character which is international". The view of Murphy J. was equally wide; see at p 656. Brennan J. expressed a similar view, but suggested a possible qualification. At p 663 he said:

"When a particular subject affects or is likely to affect Australia's relations with other international persons, a law with respect to that subject is a law with respect to external affairs."

A little later he said, at p 664:

"No doubt there are questions of degree which require evaluation of international relationships from time to time in order to ascertain whether an aspect of the internal legal order affects or is likely to affect them . . . "

Finally, he said, at p 664:

"If Australia, in the conduct of its relations with other nations, accepts a treaty obligation with respect to an aspect of Australia's internal legal order, the subject of the obligation thereby becomes (if it was not previously) an external affair, and a law with respect to that subject is a law with respect to external affairs.

"It follows that to search for some further quality in the subject, an 'indisputable international' quality, is a work of supererogation. The international quality of the subject is established by its effect or likely effect upon Australia's external relations and that effect or likely effect is sufficiently established by the acceptance of a treaty obligation with respect to that subject."

Stephen J. took a different view. He held that a treaty will attract the power only if it deals with a matter of international rather than of merely domestic concern, and that "it will not be enough that the challenged law gives effect to treaty obligations"; see at p 645. He referred to the very great expansion that has occurred since the last war in areas properly the subject of international agreement, and went on to say, at p 645:

"Nevertheless the quality of being of international concern remains, no less than ever, a valid criterion of whether a particular subject-matter forms part of a nation's 'external affairs'. A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's 'external affairs'."

My own opinion, in which Aickin and Wilson JJ. agreed, was that a law which gives effect within Australia to an international agreement will only be a valid exercise of the power conferred by s. 51(xxix) if the agreement is with respect to a matter which can itself be described as an external affair, and that any subject matter may constitute an external affair provided that the manner in which it is treated in some way involves a relationship with other countries or with persons or things outside Australia;see at p. 638.

In my opinion the problem of construction that arises is whether in interpreting par.(xxix), due regard should be had to the fact that the Constitution is federal in character. The true rule of constitutional interpretation was expressed by O'Connor J. in Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908), 6 CLR 309 , at p 368, in a passage that has often been cited:". . . where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose." The federal nature of the Constitution requires that some limits be imposed on the power to implement international obligations conferred by par.(xxix), and that was, I consider, the basis of the judgment of Stephen J. in Koowarta. The external affairs power differs from the other powers conferred by s. 51 in its capacity for almost unlimited expansion. As Dixon J. pointed out in Stenhouse v. Coleman (1944), 69 CLR 457 , at p 471: "In most of the paragraphs of s. 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy)." The boundaries of those categories of power may be wide, but at least they are capable of definition. However, there is almost no aspect of life which under modern conditions may not be the subject of an international agreement, and therefore the possible subject of Commonwealth legislative power. Whether Australia enters into any particular international agreement is entirely a matter for decision by the Executive. The division of powers between the Commonwealth and the States which the Constitution effects could be rendered quite meaningless if the Federal Government could, by entering into treaties with foreign governments on matters of domestic concern, enlarge the legislative powers of the Parliament so that they embraced literally all fields of activity. This result could follow even though all the treaties were entered into in good faith, that is, not solely as a device for the purpose of attracting legislative power. Section 51(xxix) should be given a construction that will, so far as possible, avoid the consequence that the federal balance of the Constitution can be destroyed at the will of the Executive. To say this is of course not to suggest that by the Constitution any powers are reserved to the States. It is to say that the federal nature of the Constitution requires that "no single power should be construed in such a way as to give the Commonwealth Parliament a universal power of legislation which would render absurd the assignment of particular carefully defined powers to that Parliament": Bank of New South Wales v. The Commonwealth (1948), 76 CLR 1 , at pp.184-5, which I cited in Koowarta at p 637. In this respect, in my opinion, my views, and those of Wilson and Aicken JJ., were in substance shared by Stephen J., although they led him to suggest a different test.

It is not altogether clear what Stephen J. meant when he insisted that the subject of a treaty must be of international concern if legislation with regard to it is to come within the power conferred by s 51(xxix). He clearly did not mean that it was necessary that the subject of the agreement must itself be an external affair, for it was on that question that he differed from the minority. However, he cannot have meant that the mere fact that a matter has become the subject of an international agreement means that it is a matter of international concern, because he expressly said that it is not enough that the challenged legislation gives effect to treaty obligations. The key to the understanding of his judgment seems to me to lie in a passage, at pp 645-6, in which he drew an analogy with the defence power. He cited a passage from Andrews v. Howell (1941), 65 CLR 255 , where Dixon J. said, at p 278, that whether the defence power will suffice to authorize a given measure "will depend upon the nature and dimensions of the conflict that calls it forth, upon the actual and apprehended dangers, exigencies and course of the war, and upon the matters that are incident thereto". Then Stephen J. went on, at p 646: "It will be open to the Court, in the case of a challenged exercise of the external affairs power, to adopt an analogous approach, testing the validity of the challenged law by reference to its connexion with international subject-matter with the external affairs of the nation." Although the words of this sentence are a little obscure they suggest (as did some of the remarks of Brennan J.) that the question is one of degree. Whether a matter is of international concern depends on the extent to which it is regarded by the nations of the world as a proper subject for international action, and on the extent to which it will affect Australia's relations with other countries. For myself, I should have preferred a more precise test. However, the result is that unlike some other powers, but like the defence power, the application of the external affairs power "depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law": Andrews v. Howell, at p 278.

The Convention, and the recommendation, in their relevant aspects, and as applicable to Australia, deal with matters entirely domestic - matters which contemplate action within Australia, which involve no reciprocity of relationship with other nations (as a convention regarding the protection of historic memorials from bombardment might do) and which do not directly affect the interests of other nations, for example, by protecting them from actual or potential risks (as a convention relating to the eradication of diseases or the prohibition of the illegal export of cultural property might do). The protection of the environment and the cultural heritage has been of increasing interest in recent times, but it cannot be said to have become such a burning international issue that a failure by one nation to take protective measures is likely adversely to affect its relations with other nations, unless of course damage or pollution extends beyond the borders. If one nation allows its own natural heritage (and no other) to be damaged, it is not in the least probable that other nations will act similarly in reprisal, or that the peace and security of the world will be disturbed - in this respect, damage to the heritage stands in clear contrast to such practices as racial discrimination; cf. Koowarta (supra), at p 651, per Mason J. The learned Solicitor-General referred us to some earlier treaties which dealt with the protection of cultural property, animals and national parks in certain limited circumstances, but none deals with the protection of the heritage generally. It cannot be said that the rules of customary international law cast any obligation on a nation to preserve the heritage within its own boundaries. Although it appears that the subject has been regarded as fit for international action, that action has fallen short of creating definite and binding national obligations. The question whether the subject matter of the Convention is one of international concern within the test propounded by Stephen J. is one of some difficulty, because, since the external affairs power, like the defence power, "applies to authorize measures only to meet facts" (cf. Australian Textiles Pty. Ltd. v. The Commonwealth (1945), 71 CLR 161 , at p 181), the Court must form its own impression of the facts, in part on the basis of judicial notice. In the present case I regard as decisive the fact that the Convention does not impose any obligation on the Commonwealth to enact legislation for the protection of any part of the national heritage within Australia; and of course the recommendation does not purport to do so. I also take into account my opinion that relations with other countries are not likely to be significantly affected by whatever action Australia takes in relation to the protection of the Parks. These considerations, and the nature of the matters with which the Convention and the recommendation deal, lead me to the conclusion that the external affairs power has not been attracted in the present case.

There is another reason why the power conferred by s. 51(xxix) does not support the Act or the World Heritage (Western Tasmania Wilderness) Regulations. If it be assumed that the Convention deals with a matter of international, rather than merely domestic concern, within the test suggested by Stephen J., the consequence is that the Parliament has power to give effect to the Convention, that is, to perform the obligations or to secure the benefits which the Convention imposes or confers on Australia, but has not power to make laws which deal generally with the protection of the heritage, but which are not designed to perform an obligation or receive a benefit under the Convention. This aspect of the matter did not arise in Koowarta, where, as Murphy J. pointed out, at p 656, it was rightly conceded that the challenged sections of the Act there in question conformed to the International Convention on the Elimination of All Forms of Racial Discrimination.

However, the question did arise in R. v. Burgess; Ex parte Henry. Air Navigation Act 1920 provided as follows:

"The Governor-General may make regulations for the purpose of carrying out and giving effect to the Convention and the provisions of any amendment of the Convention made under article thirty-four thereof and for the purpose of providing for the control of Air Navigation in the Commonwealth and the Territories."

It was held that so much of s. 4 as empowered the Governor-General to make regulations for carrying out and giving effect to the Convention (the Convention for the Regulation of Aerial Navigation made in Paris in 1919) was a valid exercise of the power conferred by s. 51(xxix). The regulations made under the Act largely followed the Convention but did not embody all its provisions and differed from it in some respects. The majority of the Court held that the regulations were invalid. The members of the majority all applied what was substantially the same test in deciding upon the validity of the regulations. Latham CJ. said, at p 646, that the regulations "must in substance be regulations for carrying out and giving effect to the convention". Dixon J. said, at pp 674-5:

"It is apparent that the nature of this power (that is, the power conferred by s. 51(xxix)) necessitates a faithful pursuit of the purpose, namely, a carrying out of the external obligation, before it can support the imposition upon citizens of duties and disabilities which otherwise would be outside the power of the Commonwealth. No doubt the power includes the doing of anything reasonably incidental to the execution of the purpose. But wide departure from the purpose is not permissible, because under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates."

Evatt and McTiernan JJ. said, at p 688, that "the particular laws or regulations which are passed by the Commonwealth should be in conformity with the convention which they profess to be executing". They continued:

"In other words, it must be possible to assert of any law which is, ex hypothesi, passed solely in pursuance of this head of the 'external affairs' power, that it represents the fulfilment, so far as that is possible in the case of laws operating locally, of all the obligations assumed under the convention."

Starke J., who dissented, took a wider view. He said, at pp.659-660:

"All means which are appropriate, and are adopted (sic) to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within the power. The power must be construed liberally, and much must necessarily be left to the discretion of the contracting States in framing legislation, or otherwise giving effect to the convention."

It is, I think, clear that the difference between Starke J. and the majority was not simply a difference as to the effect of the regulations; it was a difference as to the principle to be applied in determining whether a law made to give effect to an international convention is valid.

The question arose again in Airlines of NSW Pty. Ltd. v. New South Wales (No. 2) (1965), 113 CLR 54 . One question that there fell for decision was whether two regulations (Regulations 198 and 199) which were directed to the safety, regularity and efficiency of domestic air navigation were authorized by the external affairs power. The Chicago Convention on International Civil Aviation imposed upon the contracting parties an obligation "to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation". It was held by Barwick CJ. and McTiernan, Menzies and Owen JJ. that the regulations were justified by the external affairs power (although Barwick CJ. and Menzies and Owen JJ. held that they were also justified by the trade and commerce power), by Kitto and Windeyer JJ. that they were authorized by the trade and commerce power but not by the external affairs power and by Taylor J. that they were not authorized by either power. The external affairs power was not very extensively discussed but it does appear that a majority of the Court took the same view as that accepted by the majority in R. v. Burgess; Ex parte Henry, although it is not altogether clear that all of the members of the Court perceived the difference between the view of the majority and that of Starke J. in the earlier case. Barwick CJ. said, at p 86:

"But where a law is to be justified under the external affairs power by reference to the existence of a treaty or a convention, the limits of the exercise of the power will be set by the terms of that treaty or convention, that is to say, the Commonwealth will be limited to making laws to perform the obligations, or to secure the benefits which the treaty imposes or confers on Australia. Whilst the choice of the legislative means by which the treaty or convention shall be implemented is for the legislative authority, it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to that end. The Court will closely scrutinize the challenged provisions to ensure that what is proposed to be done substantially falls within the power. As Dixon J. (as he then was) said in Burgess' Case what the legislature does in such a case must be no more than 'a faithful pursuit of the purpose, namely, a carrying out of the external obligation' or, as I would respectfully add, the securing of the benefit which the treaty or convention gives. See also per Starke J. in the same case and per Evatt and McTiernan JJ."

Kitto J., at p 118, made plain his view that the external affairs power supported "laws implementing the Convention" but not "laws not directed to compliance with the Convention". Taylor J., at p 126, said that R. v. Burgess; Ex parte Henry is "clear authority for the proposition that, in relation to legislation for giving effect to an international convention of this character, the legislative power extends no further than to authorize legislation necessary to enable the Commonwealth to fulfil its obligations thereunder or reasonably incidental thereto". Menzies J. (the only member of the Court who expressly mentioned the fact that Starke J. took a different view of the law from that expressed by the other members of the Court in R. v. Burgess; Ex parte Henry: see at p. 141) said, at p. 136:

"When, as here, a party to litigation, and the Commonwealth supporting that party, rely upon s. 51(xxix) to authorize the making of the Commonwealth law in question, it must appear to this Court that the law is for the carrying out of obligations of that description. It will be so if the law can fairly be regarded as providing a way of doing what the Commonwealth has undertaken to do; the choice of ways and means being a matter essentially for the Parliament."

Windeyer J. said, at p 152:

"A law necessary to give effect to a particular treaty obligation of the Commonwealth is a law with respect to external affairs. But a law that is not necessary to give effect to an international obligation cannot be brought within Commonwealth power by linking it with one that is."

These cases recognize, as one might expect, that if an international convention imposes obligations on the Commonwealth, the Parliament has a discretion as to the manner in which those obligations are carried out. However, they strongly suggest that if an international convention imposes no obligations on the Commonwealth the power given by s. 51(xxix) is not available. (The case in which a convention gives a benefit may be put aside, for the enactments in the present case do not secure any benefit given by the Convention.) In other words, the external affairs power does not enable the Parliament to make laws with respect to any matter which is dealt with by an international convention to which Australia is a party, even if the matter is one of international concern, when the laws do not give effect to the convention. Once one accepts that s. 51(xxix) must be construed as part of an instrument which creates a federal system, and that the application of the power depends on questions of fact and degree, it must in my opinion follow that Dixon J. was correct in saying that "the nature of this power necessitates a . . . pursuit of the purpose, namely, a carrying out of the external obligation . . . ". If there is no obligation, but merely a recommendation, then, assuming that no other power conferred by the Constitution is available, the Commonwealth can do no more than endeavour to persuade the States to give effect to the recommendation by exercising the legislative power which they possess and the Commonwealth does not.

In the present case, as I have endeavoured to show, the Convention imposed no relevant obligations on the Commonwealth. The Act does not give effect to any international obligation and is for that reason not a valid exercise of the external affairs power. Further, it fails to afford any protection to property, notwithstanding Art. 6.1 of the Convention, and for that reason also cannot be said to implement the terms of the Convention.

On this view the federal clause becomes unimportant. However, in the case of a convention of international concern which did require the Commonwealth to legislate in performance of its obligations under the convention, it would be a question whether par. (a) of a federal clause in the form of Art. 34 would apply in every case, on the ground that the very existence of the obligation gave the Commonwealth power to implement it, or whether that paragraph would only apply if the Commonwealth would have had jurisdiction to pass the necessary laws without recourse to the external affairs power. The former view would mean that a federal clause would be entirely nugatory so far as Australia is concerned. However, it is unnecessary to pursue this question further in the present case.

It is not possible to pronounce on the validity of National Parks and Wildlife Conservation Act 1975 without considering the question of severability, since parts of the Convention, irrelevant to the present case (e.g. Art. 16) might be given effect by a Commonwealth law. However, it is unnecessary to answer the question whether s. 69 is valid, because, even if valid, the section does not authorize the making of the World Heritage (Western Tasmania Wilderness) Regulations. Since the Convention imposes no obligation on the Commonwealth to enact laws of the kind provided by the Regulations it follows from what I have already said that the external affairs power does not extend to allow the Regulations to be made. It is unnecessary to consider a further objection raised to the Regulations, namely that they are not regulations for and in relation to giving effect to the Convention, since they relate only to part of one of the areas in Australia which have been listed on the World Heritage List. In addition to the Parks, other areas in Australia have been so listed, but the Regulations deal only with the subject area - a small proportion of the Parks.

For these reasons I hold that the World Heritage (Western Tasmania Wilderness) Regulations and the Act are invalid in the present circumstances. The position might be different (at least as to ss 6(2)(d) and 9) if Australia came under an international obligation to protect or conserve the property by taking the measures mentioned in s 9.

The Inherent Power derived from Nationhood

It was then submitted by the Commonwealth that the provisions of s. 6(e), and those of the Act are validly enacted under the inherent power which is derived not from any express grant made by the Constitution but "from the very formation of the Commonwealth as a polity and its emergence as an international state": Victoria v. The Commonwealth and Hayden (1975), 134 CLR 338 , at p. 362. In that case Mason J. described the power in these words, at p. 397:

". . . the Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity . . . So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion. But in my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation."

He gave as examples the establishment of the Commonwealth Scientific and Industrial Research Organization and the expenditure of money on inquiries, investigation and advocacy in relation to matters affecting public health, and continued, at pp. 397-8:

"No doubt there are other enterprises and activities appropriate to a national government which may be undertaken by the Commonwealth on behalf of the nation. The functions appropriate and adapted to a national government will vary from time to time. As time unfolds, as circumstances and conditions alter, it will transpire that particular enterprises and activities will be undertaken if they are to be undertaken at all, by the national government."

Jacobs J. revealed that he held a wide view of the scope of this implied power when in the same case he said, at pp. 412-3:

"Thus, the complexity and values of a modern national society result in a need for co-ordination and integration of ways and means of planning for that complexity and reflecting those values. . . . Moreover, the complexity of society, with its various interrelated needs, requires co-ordination of services designed to meet those needs. Research and exploration likewise have a national, rather than a local, flavour."

It is quite unnecessary for present purposes to consider the possible scope of this implied power but it is I think important to repeat the words of caution which Mason J. uttered in Victoria v. The Commonwealth and Hayden, at p. 398:

"It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to this aspect of the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth's area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programmes standing outside the acknowledged heads of legislative power merely because these programs can be conveniently formulated and administered by the national government."

I completely agree with that statement. Mason J. was there speaking of the executive power. In the same case, at p. 378, I uttered similar cautionary words in relation to the legislative power:

"The legislative power that is said to be incidental to the exercise by the Commonwealth of the functions of a national government does not enable the Parliament to legislate with respect to anything that it regards as of national interest and concern; the growth of the Commonwealth to nationhood did not have the effect of destroying the distribution of powers carefully effected by the Constitution."

The implied power derived from nationhood has no possible application to the present case. The question whether and to what extent restrictions should be put on the use of lands within a State is not a matter which is peculiarly appropriate to a national government. On the contrary, it is a matter which traditionally has been considered to be within the province of the government of the State within which the lands are situated. The protection of the Parks is not so complex a matter, and does not involve action on so large a scale, that it requires national coordination to achieve, assuming that to be a test.

I cannot accept the correctness of the recitals in s. 6(2)(e). It is not established that the Parks form "part of the heritage distinctive of the Australian nation". It is not established that there is a "lack or inadequacy of any other available means for its protection or conservation" although there is, of course, a controversy as to what steps should be taken in that regard. In any case, the implied powers of the Parliament, as a national Parliament, do not extend to allow it to prevent a State from making or permitting such lawful use of its lands as it chooses.

Section 51(xxvi)

The nature of the power conferred by s. 51(xxvi), to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws" was recently considered in Koowarta, at pp. 631-2, 642-3, 656 and 657-8. To come within s. 51(xxvi) a law must be a law with respect to the people of a particular race, and it must be a special law. A law will be special if it has some special connexion with the people of a race; it will not answer that description if it applies equally to people of all races. History strongly supports the view that "for" in par. (xxvi) means "with reference to" rather than "for the benefit of" - it expresses purpose rather than advantage - but that is not particularly relevant in the present case.

the Act on its face is a perfectly general law - the prohibitions which it contains are addressed to people of all races. However, a special connexion with the people of the Aboriginal race is sought to be found in s. 8 may be ignored since the Parliament cannot, by declaring that a law has a particular characteristic, give it that characteristic. Subsections (2) and (3) show that s. 11 applies only to a site - (i)(a) that is, or is situated within, identified property that is, property forming part of the cultural heritage or natural heritage; and (b) the protection or conservation of which is, whether by reason of the presence on the site of artifacts or relics or otherwise, of particular significance to the people of the Aboriginal race; and (ii) which the Governor-General, being satisfied that the site is being, or likely to be, damaged or destroyed or that any artifacts or relics are being, or likely to be, damaged or destroyed, has by proclamation declared to be a site to which s. 11 applies.

Although the protection or conservation of a site to which s. 11 applies must be of particular significance to the people of the Aboriginal race, the site itself must be of outstanding universal value, since otherwise it cannot form part of the cultural heritage or natural heritage. A site which may be of very great significance to the people of the Aboriginal race will not be within the section if it is not of outstanding universal value. The prohibitions in s. 11 are directed to the protection of the site generally, and not to the preservation of any particular feature of the site which may give it significance to members of the Aboriginal race. What is more important, members of the Aboriginal race have no special rights or privileges, and no special obligations, in relation to a site to which s. 11 applies. They have no greater right of access to the site than anyone else, and they are affected by the prohibitions contained in s. 11 in the same way as other people. If the Minister consented to the removal of the artifacts and relics from a site, for example, to enable them to be the subject of scientific study or to be kept safe, he could allow them to be taken to a place to which people other than those of the Aboriginal race had access and members of the Aboriginal race did not. True, it is that in such a case a member of the Aboriginal race might apply to review the decision of the Minister to give his consent (see s. 13(7)) but so also could other persons and organizations (see 11 confer no rights and impose no duties on members of the Aboriginal race as such, or on other persons in relation to their dealings with members of the Aboriginal race. The sections are not a law with respect to people of the Aboriginal race.

If this view were wrong, the validity of the law would depend on the question whether any of the sites the subject of either of the two proclamations is of particular significance to the people of the Aboriginal race. That would be a question of mixed law and fact. In my opinion the law would not be a special law for the people of the Aboriginal race only because the site contained artifacts and relics dating from prehistoric times, even though those artifacts and relics were left by the race which originally inhabited Tasmania. Artifacts and relics of such antiquity are of significance to all mankind; a law for their protection is not a special law for the people of any one race.

I hold the Act to be beyond power.

The Corporations Power

s. 51(xx) to make laws with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". Section 10 applies to a body corporate which is a foreign corporation, or is incorporated in a Territory, or, not being incorporated in a Territory, is a trading corporation formed within the limits of the Commonwealth, and forbids corporations of those three kinds, without the consent of the Minister, to do the acts specified in the section on property to which the section applies. We are however concerned with the validity and effect of the sections only in so far as they apply to trading corporations, for the Commission is not a foreign corporation or a body corporate incorporated in a Territory.

The Commission is set up under the Hydro-Electric Commission Act 1944 (Tas.). It consists of four persons appointed by the Governor (s. 3(1)), and is a body corporate capable of suing and of being sued and holding and disposing of real and personal property (s. 4(1)). The general functions, duties and powers of the Commission are set out in s. 15 which provides, inter alia, as follows:

"(1) Subject to this Act, the Commission has and shall perform the functions and duties imposed, and has and may exercise the powers conferred, on it by this Act, including the management and control of the hydro-electric works.

(2) The Commission may, for and on behalf of the State -

(a)

construct any works, and may operate, manage, control, and generally carry on and conduct any business whatsoever, relating to or connected with the generation, reception, transmission, distribution, supply, and sale of electrical energy, and carry out any purpose in relation thereto which the Commission may deem desirable in the interests of the State;

(b)

for the purposes of this Act, with the approval of the Minister, purchase from any person electrical energy on such terms as the Commission may think fit;

(c)

provide, sell, let for hire, fix, repair, maintain, and remove electric lines, fittings, apparatus, or appliances for lighting, heating, and motive-power, and for all other purposes for which electrical energy can or may be used, upon such terms and conditions in all respects as the Commission shall think fit;

(d)

generally, in so far as is not elsewhere in this Act sufficiently provided for, do anything that the owner of similar works might lawfully do in respect thereof, or that is authorized by by-laws under this Act;

(e)

appoint, discharge, and determine the salaries, remuneration, and allowances of all officers, clerks, workmen, and servants whom the Commission may deem necessary to carry on the hydro-electric works, or otherwise for carrying out the purposes of this Act; and

(f)

with the approval of the Governor, in relation to any particular matter, or class of matters, by writing under its common seal, delegate all or any of the powers of the Commission under this Act (excepting the power of delegation) to a Commissioner so that the delegated powers may be exercised by him with respect to the matters, or class or matters, specified in the instrument of delegation.

(2A) With the approval of the Minister, the Commission may enter into and carry out agreements with any authority or person for the construction by the Commission of any works that that authority or person may lawfully construct or for the giving of assistance by the Commission in the carrying out of any such works.

(2B) The Commission may enter into and carry out agreements with any authority or person for the carrying out of investigations, the preparation of designs, and the giving of other assistance by the Commission in relation to works proposed to be constructed by or on behalf of that authority or person.

(2C) References in subsections (2A) and (2B) to an authority shall be construed as including references to a Minister and to any person acting on behalf of the State or under any enactment.

(2D) The Commission may enter into and carry out agreements with a Minister, acting on behalf of the State, under which the Commission undertakes to do any one or more of the following things:-

(a)

to carry out investigations or research for or in connection with-

(i)

locating energy resources;

(ii)

the feasibility of developing or using any energy resource, or of generating or converting energy from, or transmitting, distributing, supplying, selling, or using energy derived from, any such resource; and

(iii)

conserving energy resources;

(b)

to assist and advise the Minister with respect to the matters referred to in paragraph (a);

(c)

to prepare reports for, or make recommendations to, the Minister with respect to any of the matters so referred to.

(3) Any delegation by the Commission under paragraph (f) of subsection (2) shall be revocable at will either by the Governor or the Commission, and shall not affect the exercise of any power by the Commission."

By s 16(1), no new power development shall be undertaken or authorized by the Commission without the authority of Parliament. A special power given to the Commission is to require any council to supply it with any information with respect to any matter relating to the city or municipality, which it requires for carrying out the provisions of the Act:s 21(1).

The Minister (who, it is agreed, is in fact the Premier of Tasmania) is given certain powers and functions in relation to the Commission. By s 14, the Minister is entitled to summon a special meeting of the Commission and to attend all special and ordinary meetings and is entitled to require the Commission to supply him with any information which he thinks necessary in relation to the operations, business and affairs of the Commission: s 14(1), (2). The Minister may report to the Governor, or to Parliament, any information supplied to him by the Commission and shall report on the operations, business and affairs of the Commission if either House of Parliament so orders:s 14(3),(4). By s 15A it is provided as follows:

"The Minister may from time to time, by instrument in writing, notify the Commission of the policy objectives of the Government of this State with respect to any matter relating to the generation, reception, transmission, distribution, supply, sale, use, or conservation of electrical energy within, or for the purposes of, this State."

Section 15B(1) provides:

"Subject to subsection (2), the Minister may, after consultation with the Commission, give to the Commission in writing any direction that he considers to be in the public interest with respect to the performance or exercise by the Commission of its functions, duties, or powers under this or any other Act."

That power is subject to certain limitations, not now necessary to mention, which are set out in s 15B(2). The Commission may, with the approval of the Minister, make rules for regulating the business and affairs of the Commission: s 17. The Commission shall furnish an annual report to the Minister of its operation, business and affairs:s 19.

The Governor is given power to vest Crown lands in the Commission: see ss 35 and 39. The Commission may, with the approval of the Minister, acquire land other than Crown land (s 36) and such an acquisition may be made under the Public Authorities' Land Acquisition Act 1949 (ss 37,38). By s. 39A(1), for the purpose of Acts relating to rating, lands belonging to the Commission shall be deemed to belong to the Crown and lands occupied or used by the Commission for the purposes of the Act shall be deemed to be occupied or used by or on behalf of the Crown for a public purpose.

By s 44, the Commission is given power to construct, maintain, repair, enlarge and use any works for the purpose of generating, transmitting or distributing electrical energy upon or in respect of any land vested in the Commission or over which it has acquired any right or authority for that purpose. By s 45, the Commission is given powers to place and use cables, electrical lines and similar apparatus upon, under, across or along any railway, road, street or land, and to do works, for the purpose of transmitting and distributing electricity. Consequential powers and duties are conferred by other sections of Pt. VII of the Act.

Part IX of the Act deals with the supply of electrical energy by the Commission. Sections 54 and 55 provide as follows:

"54- (1) The Commission may sell and supply electrical energy for any purpose approved by the Commission, at such charges as may be fixed by by-law, and such charges may be fixed with reference to the particular purpose for which the electrical energy is to be used by the consumer thereof: Provided that the by-laws shall provide for the same general rates of charges for electricity sold or supplied by the Commission to consumers outside the city of Hobart as are charged in like cases to consumers within that city, but this proviso shall not apply to any special contract to which the general charges do not apply.

(2) Subject to any direction given by the Minister under section 15B but otherwise notwithstanding anything to the contrary in this Act, the Commission, in any case in which in its uncontrolled discretion it thinks fit so to do, may enter into a special contract with any person for the sale to him of electrical energy, at such charges and upon such terms and conditions in all respects as the Commission may think fit.

(3) Notwithstanding anything contained in this Act, no person shall, except with the consent in writing of the Commission, sell or supply any electrical energy supplied to him by the Commission to any other person.

Penalty:$100.

55 - The Commission may sell, let for hire, or supply, under any conditions the Commission may think fit, to any consumer of electrical energy, any meters or measuring instruments for the purpose of measuring the quantity or quality of energy supplied and consumed, and any mains, apparatus, and appliances for the conveyance, reception, or use thereof."

Under Pt. X of the Act, no person shall supervise, execute, perform or be employed on any electrical wiring work unless he is the holder of an electrical mechanic's licence or a permit, and no person shall enter into a contract to execute or to perform any electrical wiring work unless he is the holder of an electrical contractor's licence and the Commission is given power to issue, cancel, suspend, endorse or reinstate such licences and permits.

By Pt.XI, the Commission has the function of making recommendations to the Governor in relation to the specification of types of electrical appliances to be used for the purposes of electrical installations and in relation to the making of regulations with regard to the examination, testing and approval of electrical appliances.

By Pt.XII, the Commission, with the approval of the Governor, is given power to make certain by-laws.

Section 75 of the Act provides as follows:

"The Commission shall have the same rights, privileges, and priorities in all respects with regard to any sum of money owing to it by any person, as the Crown would have in the like case, but any action by the Commission against any person for the recovery at law of any sum of money shall be instituted and carried on by the Commission in its own name as plaintiff in the same manner as an ordinary action between subject and subject."

Section 75A provides as follows:

"(1) The Commission may establish canteens in any area or district in which works of the Commission are constructed or are in course of construction, and may authorize the sale at any such canteen of liquor (as defined by the Licensing Act 1976), upon and subject to such terms and conditions as may be prescribed in the by-laws.

(2) No authority shall be given under subsection (1) in respect of the sale of liquor at any canteen which is situated at any place within 5 kilometres of any licensed house within the meaning of the Licensing Act 1976.

(3) The provisions of the Licensing Act 1976 shall not apply to or in respect of any canteen established by the Commission under the authority of this section."

Section 75B provides as follows:

"The vehicles of the Commission are subject to the Traffic Act 1925 as if they belonged to the Crown."

The Commission contributes to Tasmania's consolidated revenue 5 per cent of its total revenue from retail sales of electrical energy; see Hydro-Electric Commission (Contributions) Act 1980 (Tas.). The Commission is empowered to raise funds by debentures and the creation and issue of inscribed stock (see Hydro-Electric Commission (Loans) By-laws 1954 (S.R. No. 109 of 1954 (Tas.)) and with the approval of the Governor it may raise loans outside the Commonwealth (Public Authorities' (Overseas Borrowing) Act 1979 (Tas.)). The Commission has designed and constructed, or arranged for the design and construction of, many power stations in Tasmania. Its generating system comprises twenty-three hydro power stations and one thermal power station and these together incorporate fifty-one generators with a total installed capacity of 1860.4 megawatts. The Commission sells electricity to about 190,000 customers, mostly under retail tariffs, but some under special contracts. During the financial year ended 30th June, 1982, the Commission derived more than $55 million from the bulk sale of power, more than $105 million from the retail sale of power and more than $2 million from accrued retail sales. During the same period it made a gross profit on the trading account of $103,789,800 which was carried to the profit and loss account. For the same year net profit on the profit and loss account was $5,965,947 which was transferred from the profit and loss account in part to the rural extensions reserve and in part to the income deficiencies and contingencies reserve. In that financial year the Commission's capital expenditure was $113,171,134. Of this sum, 76 per cent was expended on the Pieman River Power Development Scheme, 6 per cent on the system for the distribution of electricity, 5 per cent on transmission lines, 4 per cent on the raising of the Great Lake, 4 per cent on the construction of substations and 5 per cent on miscellaneous capital expenditure. Of the sum expended, 38 per cent came from infrastructure loans, 31 per cent from semi-government loans, 21 per cent from Treasury loans and 10 per cent from internal sources.

To say that the Commission is a "trading corporation" is to rob those words of all distinctive meaning. Of course the Commission is a corporation and it trades. But the words "trading corporations" in s 51(xx) describe corporations of a particular character. It must follow that in deciding whether a corporation answers the description, it is necessary to determine its true character. In Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1974), 130 CLR 533 , I thought that the purpose for which a corporation was formed provided the discrimen by which its character should be determined: see at p 562. Subsequent cases have shown that in determining the character of the corporation the Court must consider all the circumstances relating to the corporation - its activities as well as the purposes of its formation: Reg. v. Federal Court of Australia; Ex parte WA National Football League (Adamson's Case) (1979), 143 CLR 190 ; State Superannuation Board v. Trade Practices Commission (1982), 57 ALJR 89; Fencott v. Muller (28th April, 1983; unreported). I have so recently discussed this question, in Fencott v. Muller, that I need do no more than repeat what I then said, at p. 12:

". . . a corporation cannot take its character from activities which are uncharacteristic, even if those activities are not infrequently carried on. It may indeed be wrong to insist on finding activities that are 'primary' or 'predominant', but it is equally wrong to be satisfied with activities that are 'substantial', if the latter activities do not, in all the circumstances, show that the corporation has a character which the Constitution requires."

The Commission is not a trading corporation. It is a corporation sui generis. Its activities include trading - in that it supplies electricity for profit - and trading on a substantial scale, but they include also the construction on a large scale of generating plants and works for the distribution of electricity to enable it to keep Tasmania supplied with electricity; in that respect it discharges a public function of vital importance to the State. It performs other governmental functions of less importance (under Pts. X and XI). It is in some respects subject to ministerial power, and is accorded special powers and privileges similar to some which the Crown enjoys, although it is not the servant of the Crown: Launceston Corporation v. The Hydro-Electric Commission (1959), 100 CLR 654 . It is "a public authority with public purposes, as distinct from a private undertaking engaged upon a merely commercial enterprise, and. . . its powers are to be exercised for the good of the State": Launceston Corporation v. The Hydro-Electric Commission, (supra) at p. 661. Its trading activities, although significant, do not indicate its true character.

I further consider that, even if the Commission were a trading corporation, the provisions of the Act, if valid, could apply to the Commission only in relation to such of its activities as are properly regarded as trading activities. I adhere to the view which I expressed in Actors and Announcers Equity Association of Australia and Others v. Fontana Films Pty Ltd (1982), 56 ALJR 366, at p 370:

"The authorities in which s. 51(xx) has been considered are opposed to the view that a law comes within the power simply because it happens to apply to corporations of the kind described in that paragraph. . . The words of par. (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid."

In view of the conclusions which I reach on other aspects of the case, I need not elaborate this matter further. It is clear however that the activities of the Commission to which s. 10, if valid, would apply, are not trading activities. The trade of the Commission is in respect of the supply of electricity; the acts prohibited by s. 10 are anterior even to the generation of the electricity which is to be supplied. They may be regarded as acts preparatory to the trade; they certainly do not form part of it.

It follows that in my opinion the provisions of the Act, if valid, would have no application to the Commission. Lest that view be not accepted, I should turn to consider the validity of the section. In my opinion, with the exception of one subsection, it is not a law with respect to trading corporations. This is made clear by the provisions of s. 7, and by the scheme of the Act as a whole. As s. 10 applies only where the Governor-General is satisfied that any identified property is being or is likely to be damaged or destroyed. The object of 10, as appears from their own terms, is the protection of the heritage from damage or destruction. That conclusion is supported by a consideration of 11, which show that the same prohibitions as s. 10 seeks to apply to corporations are made applicable by those other sections to cases which in no way involve corporations. In other words, for the purposes of the statute the character of the person who performs the forbidden acts is immaterial. Further, the prohibited acts are not such as might naturally be performed by a corporation in the course of trading. In Fairfax v. Federal Commissioner of Taxation (1965), 114 CLR 1 Kitto J. said, at p. 7, that the question of constitutional validity under s. 51 -

" . . . is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, 'with respect to', one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character?"

Taylor and Menzies JJ. also made clear in the same case, at pp. 16, 17-18, that the question is not what was the motive behind the enactment but whether it is in substance a law with respect to a particular legislative subject matter. Apart from 10 and the topic of trading corporations is not direct and substantial - it is exiguous and unreal. It is apparent that the relationship between trading corporations and the operative provisions of s. 10 is merely incidental - the section is applied to trading corporations only in an attempt to use s. 51(xx) as a source of power which would not otherwise exist. The true character of the section is not that of a law with respect to trading corporations.

However, s. 10(4) applies only where the forbidden acts are done by a body corporate of the kind described in the section "for the purposes of its trading activity". Notwithstanding some doubts as to whether the connexion made by s. 10(4) with trading corporations by the use of those words is merely contrived, I consider that the subsection does have a sufficient connexion with the topic of power granted by s. 10(4) to be valid.

On this branch of the case I hold that s. 10(4) is valid, but that the remainder of the s. 10 is invalid; that the Commission is not a trading corporation and that in any case such of its activities as would fall within the scope of s. 10 if it were a trading corporation are not trading activities.

Other Matters

Tasmania advanced other arguments. It submitted -

(1) that the Act abridged the right of Tasmania and its residents to the reasonable use of the waters of rivers for conservation or irrigation contrary to the Constitution;

(2) that the Act and the World Heritage (Western Tasmania Wilderness) Regulations, as amended by the Act, bring about an acquisition of property otherwise than on just terms; and

(3) that the Act and the World Heritage (Western Tasmania Wilderness) Regulations invalidly interfere with or impair the legislative and executive functions of the State of Tasmania and the prerogative of the Crown in right of Tasmania in relation to its lands.

In view of the conclusion that I have reached, I need not consider any of those questions, nor need I consider a further argument of the Commonwealth that the Premier might be ordered to give a direction under s. 15B of the Hydro-Electric Commission Act 1944 to the Commission to cease construction of the dam.

Conclusions

I hold the enactments on which the Commonwealth relies to be invalid, except for s. 10(4) of the Act which has no application to the Commission. It follows that the Gordon River Hydro-Electric Power Development Act (1982) (Tas.) is valid, since no question of its inconsistency with a Commonwealth Act arises. I would therefore answer the questions asked as follows:

Actions No. C6 and No. C8 of 1983

(1) Is s 69 of the National Parks and Wildlife Conservation Act 1975 valid in so far as it enables:-

(a)

the making of Regulations for and in relation to giving effect to the World Heritage Convention;

(b)

the making of the World Heritage (Western Tasmania Wilderness) Regulations?

Answer: 1.(a) Unnecessary to answer; 1.(b)"No".

(2) Does the decision of the validity or invalidity of the World Heritage (Western Tasmania Wilderness) Regulations or any of them depend upon the judicial determination of the disputed allegations or any of them contained in the annexed statement of facts and allegations?

Answer: "No".

(3) If no to Question (2), are the said Regulations or any of them invalid?

Answer: "Yes".

(4) If yes to Question (2), which of the disputed allegations are necessary to be determined in order to enable a decision as to the validity or invalidity of the said regulations to be made?

Answer: Unnecessary to answer.

(5) If no to Question 3, is the Gordon River Hydro-Electric Power development Act 1982 (Tas.) valid?

Answer: Unnecessary to answer.

(6) If no to Question 5, must the second defendant pursuant to s 15(b) of the Hydro-Electric Commission Act (Tas.) direct the third defendant in writing to cease to construct the development specified in Sch 1 to the Gordon River Hydro-Electric Power Development Act 1982 (Tas.)?

Answer: Unnecessary to answer.

Action No C12 of 1983

(1) Are any of the provisions of:

(a)

ss 6 and 9

(b)

ss 7 and 10

(c)

ss 8 and 11

(d)

s 17 of the World Heritage Properties Conservation Act valid?

Answer:

1.

(a)

"No, in the present circumstances".

(b)

"No - except s. 10(4), and s. 7 in so far as it operates for the purposes of s. 10(4)".

(c)

"No".

(d)

Unnecessary to answer.

(2) Does the decision of the validity or invalidity of the Act, the Regulations or Proclamations made under the Act, or any of them depend upon the judicial determination of the disputed allegations or any of them contained in the statement of facts and allegations?

Answer: "No".

(3) If no to Question 2, are:

(a)

the Regulations

(b)

the Proclamations

or any of them invalid and if so which?

Answer: "Yes, all except the Proclamations made under s. 7 in so far as they operate for the purposes of s. 10(4)".

(4) If yes to Question 2, which of the allegations are necessary to be determined in order to enable a decision as to the validity or invalidity of the said Act, Regulations or Proclamations to be made?

Answer: Unnecessary to answer.

(5) Do the agreed facts

(a)

compel

(b)

permit

the conclusion that the HEC is a trading corporation within the meaning of the Heritage Act?

Answer: "No".

(6) If yes to (a), (b), or (c) of Question 1 and no to Question 3, is the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) valid?

Answer: "The Act is valid".

(7) If no to Question 6, must the second defendant pursuant to s 15(b) of the Hydro-Electric Commission Act (Tas.) direct the third defendant in writing to cease to construct the development specified in Sch 1 to the Gordon River Hydro-Electric Power Development Act 1982 (Tas.)?

Answer: Unnecessary to answer.

(8) If the Hydro-Electric Commission is a trading corporation and if s 10(4) is valid, is the Commission carrying out any of the acts set forth in sub-s.(2) or (3) for the purposes of its trading activities?

Answer: "The Commission is not a trading corporation, but in any case, the acts are not done for the purposes of its trading activities".