Commonwealth v Tasmania (The Tasmanian Dam Case)

158 CLR 1
46 ALR 625

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(Judgment by: BRENNAN J)

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:
BRENNAN J

BRENNAN J. Three separate areas of land known respectively as the Cradle Mountain Lake St. Clair National Park, the Franklin Lower Gordon Wild Rivers National Park and the Southwest National Park in the south western part of Tasmania were proclaimed or were deemed to be proclaimed to be State reserves pursuant to the National Parks and Wildlife Act 1970 (Tas.) (the Tasmanian National Parks Act). The three parks are known collectively as the Western Tasmania Wilderness National Parks (the Parks). Except for the northern section of the Cradle Mountain Lake St. Clair National Park, the Parks lie within the Southwest Conservation Area. The Tasmanian National Parks Act makes provision for management plans that may indicate the purposes for which, or the manner in which, "reserved land" (that is, land within a conservation area) or any part of such land may be used, developed or managed (ss. 19,21). However, no management plan having been approved by the Governor, the managing authority of the Parks, namely, the Director of the National Parks and Wildlife Service (s. 22(1)), is charged with the management and maintenance of the Parks in a manner designed to promote the purpose of conservation (ss. 23(1)(b), 14(1)). Some regulations have been made under s 29 with respect to various aspects of the care, control and management of the Parks, but none of them is of present relevance. Within the boundaries of the Franklin Lower Gordon Wild Rivers National Park (hereafter the Wild Rivers Park) lies the junction of the Franklin River with the Gordon River. A short distance below the confluence of the two rivers there is a site on the Gordon River suitable for the construction of a dam.

After extensive studies the Hydro-Electric Commission of Tasmania (the HEC) has proposed that a dam and power station should be constructed and a hydro-electric generating plant installed at that site. The proposal is to impound the waters of the Gordon River to a height of 76 metres above sea level. At that height, the reservoir would have a surface area of about 12,000 hectares. The impounded waters would raise the level of the Franklin River for a considerable distance upstream from its junction with the Gordon River. That will inundate Kutikina Cave and Deena-Reena Cave - two caves, recently discovered, that are of archaeological significance.

The construction and operation of the dam and hydro-electric works are of importance to the Tasmanian economy and the HEC proposal found favour with the Parliament and Government of the State. To give effect to the proposal, legislative and executive action was taken. To permit the construction of the new power development upon the chosen site it was deemed necessary to vest certain parcels of land in the HEC, which is a corporation created by s. 4 of the Hydro-Electric Commission Act 1944 (Tas.) (the HEC Act). Some of the required land was part of the Wild Rivers Park and it was necessary to excise two parcels of land from that park under s. 16(1) of the Tasmanian National Parks Act and thereby terminate their status as part of a conservation area and State reserve (s. 15(4)). The two parcels of land contained in all 14,125 hectares or thereabouts. The excision of these parcels (the HEC land) took effect on 2nd September, 1982. A third parcel containing 780 hectares or thereabouts (the future HEC land) - a parcel which includes the caves - is to be excised with effect on 1st July, 1990. In the meantime it remains part of the Wild Rivers Park. By a proclamation made in pursuance of s. 35 of the HEC Act, the HEC land was vested in the HEC for the purposes of the HEC Act on 16th September, 1982, and the future HEC land is to vest in the HEC for the purposes of the HEC Act on 2nd July, 1990. Certain other tracts of land were also vested in the HEC for the purposes of the HEC Act: a parcel comprising 14,200 hectares or thereabouts was excised from the Southwest Conservation Area outside the Parks and vested in the HEC and an adjoining parcel comprising 3,570 hectares or thereabouts of Crown land situated outside the Southwest Conservation Area was so vested. Neither of these two parcels of land is of present relevance. The land vested in the HEC is available for use in and in connection with the construction of the proposed dam. Section 44 of the HEC Act empowers the HEC to "construct . . . 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", but the HEC requires further authorization from the Tasmanian Parliament before it undertakes or constructs a new power development (s. 16(1)). The Tasmanian Parliament gave its authority for the construction of the proposed new power development by enacting the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) which was assented to on 28th June, 1982, and came into operation on 12th July, 1982. The proposed development is known as the Gordon below Franklin Scheme.

On 14th July, 1982, the HEC put in hand the preparatory work for the construction of the new power development. The damage to the natural and cultural environment apprehended from the construction and operation of the Gordon below Franklin Scheme excited considerable opposition. Intervention by the Commonwealth was sought. In December 1982, the Government of the day decided not to intervene. After a change of Government, that decision was reversed. The Commonwealth then sought to stop the construction of the new power development by a complex of statutory provisions: National Parks and Wildlife Conservation Act 1975 (Cth) (the Commonwealth National Parks Act); the World Heritage (Western Tasmania Wilderness) Regulations (S.R. No. 31 of 1983, made under s. 69 on 30th March, 1983 (as amended) (the Wilderness Regulations); the World Heritage Properties Conservation Act 1983 (Cth) (the Act); the World Heritage Properties Conservation Regulations (S.R. No. 65 of 1983, made under the Act on 25th May, 1983 and amended (S.R.No. 67 of 1983)on 26th May, 1983); and certain proclamations made under the Act. The present litigation has resulted. Some works have already been carried out on the HEC land for the purpose of constructing the proposed dam. They are set out in a statement of facts agreed by the parties.

The basic issues in this litigation are whether the Commonwealth has power to take the measures which it has taken and whether those measures are effective in law to prohibit the further construction of the dam. Of course, those issues are not to be resolved by according preference to one policy over another; the basis of resolution is the Constitution. If the Commonwealth has power under the Constitution to make a law prohibiting the construction of the dam and it has exercised that power, that law of the Commonwealth prevails over any inconsistent law of Tasmania. the Constitution says so. That is the way in which the people who agreed to unite "in one indissoluble Federal Commonwealth" determined that inconsistency between the laws of their Commonwealth and the laws of their respective States should be resolved; see the preamble to and covering cl. 3 of the Commonwealth of Australia Constitution Act. And so the question for present consideration is whether the Constitution grants to the Commonwealth the power to make the laws which purport to stop construction of the dam.

Three heads of Commonwealth power are invoked in support of the validity of the measures taken by the Commonwealth, namely, the powers respectively conferred by par. (xxix) (external affairs), par. (xx) (trading corporations) and par. (xxvi) (special laws for the people of any race) of s. 51 of the Constitution. Paragraph (xxix) is invoked in support of s. 69 of the Commonwealth National Parks Act and the regulations made thereunder and in support of two of the key provisions of the Act: ss. 6 and 9. Paragraph (xx) is invoked in support of another two key provisions of the Act: ss. 7 and 10; and par. (xxvi) is invoked in support of a third set of key provisions of the Act: ss. 8 and 11. The extent of each of these powers and the validity of each of these measures are in dispute, but the parties have confined the dispute so that it is neither necessary nor desirable to go beyond resolving whether or not the Commonwealth has, by any and which of these measures, validly prohibited the construction of the dam.

Before turning to the particular powers invoked by the Commonwealth in support of the measures it has taken, it is necessary to consider Tasmania's argument that a law of the Commonwealth, irrespective of the power relied on to support it, cannot impair the exercise of Tasmania's legislative and executive powers over Tasmania's unalienated Crown lands, the waste lands of the State. The waste lands which the Commonwealth laws are said to affect are the whole area of the Parks as they stood before excision of the HEC land - 769,355 hectares being 11.2 per cent of the land mass of the State. The nature of the Tasmanian Government's interest in and its powers over the Parks should be identified.

Upon the settlement of the Australian colonies, the Imperial Crown assumed title to all land therein and asserted a prerogative power to dispose of it. The title was recognized by the Imperial Parliament in passing the Australian Land Sales Act in 1842 (5 & 6 Vict. c. 36) (Imp.) and by the Supreme Court of New South Wales in 1847 (Attorney-General v. Brown (1847) Legge 312, at pp. 318-319). A policy was adopted by the Colonial Office of disposing of Crown land by sale to encourage settlement and to provide funds for the administration of the colonies. The sale of waste lands yielded significant proceeds but those proceeds were dealt with as the Imperial Crown determined; they were not within the disposition of the local colonial administrators. The 1842 Act provided that the gross proceeds were to be applied to the public service of each colony as Her Majesty or the Commissioners of Her Majesty's Treasury or any three of them might direct, but so that at least half of those proceeds were to be applied to assist in the programme of emigration from the mother country to the Australian colonies (s. 19). The 1842 Act contained no devolution of legislative powers upon colonial authorities, as Isaacs J. pointed out in Williams v. Attorney-General for New South Wales (1913), 16 CLR 404 , at pp. 450-451:

"It is extremely material to bear in mind that the Act was a restriction on the power of the Home Government to dispose of the waste lands and apply the proceeds, but it did not in any manner profess to confer any such power on the Colonial legislature. . . .

"The Colony obtained fixed rights with regard to the proceeds, but the exclusiveness of the Home Government's powers of disposal was maintained."

An essential element of the Imperial policy was the reservation from sale of appropriate lands required for public purposes. This history of Crown reserves before and after the Australian Land Sales Act can be found in the judgment of Windeyer J. in Randwick Corporation v. Rutledge (1959), 102 CLR 54 , at pp 71 et seq.By s 3 of the 1842 Act, the Governor of the Colony, who was subject to instructions from the Imperial Government, was empowered to decide what land should be reserved from sale, and whether any land so reserved should be disposed of and dedicated to the particular public purpose which had led to its being reserved from sale; cf.per Windeyer J. Rutledge's Case, at p 83. The reservation of land did not fetter the use to which the Crown might thereafter put the land. Isaacs J. said in Williams v. Attorney-General for New South Wales, at p 451:

"It is to be remembered that there was no detraction in the Act from the power of the Crown to abandon the public purpose for which any waste lands were set apart - provided always no adverse rights had arisen. A tract of waste forest land marked out on a map, and formally set aside for a future township, or reservoir, or police station, was still waste land of the Crown in fact and in ordinary parlance, but it was reserved waste land. If, however, the reservations were formally revoked, and the purpose abandoned, the land naturally fell back into the general stock of Colonial waste lands. . . It was altogether in the discretion of the Crown to reserve, or to cancel a reserve, and thus throw the particular lands into the purchasable mass."

In 1850, when s 14 of the Australian Constitutions Act (No 2)(13 & 14 Vict.c.59)(Imp.) granted power to the Governor and Legislative Council of Van Diemen's Land to make laws for the peace, welfare and good government of that Colony, the Imperial Parliament excepted from the grant any power to interfere with the sale or other appropriation of the lands belonging to the Crown within the Colony or with the proceeds arising therefrom. That exception put the Governor in a position of comparative independence from the Legislative Council; see Early Constitutional Development in Australia (1963), A.C.V. Melbourne (R.B. Joyce (ed.)), at p 273. The refusal by Imperial authorities to grant power to control waste lands and their proceeds to the Governor and the Legislative Council of New South Wales evoked a remonstrance from the Legislative Council that "the land revenue, which 'derived as it (was) mainly, from the value imparted . . . by the labour and capital of the people of (the) colony, (was) as much their property as the ordinary revenue',(and) should be appropriated by the Council"; W.G. McMinn, A Constitutional History of Australia (1979), at p 48. However, power over waste lands and their proceeds was not granted until responsible government was granted, a constitutional development that would have been impossible in the mid-nineteenth century if the colonial legislatures had not secured control of the revenues derived from sale or other appropriation of waste lands. Responsible government had not been granted to Van Diemen's Land with the grant of legislative powers to the Governor and the Legislative Council. Responsible government followed upon the creation of a bicameral legislature pursuant to "an Act to establish a Parliament in Van Diemen's Land and to grant a Civil List to Her Majesty" (18 Vict. No 17). The Bill for that Act had been passed by the Governor and Legislative Council in 1854 and had been reserved for the Royal Assent pursuant to s 32 of the Australian Constitutions Act (No 2). That Act did not provide that the powers of the Parliament of Van Diemen's Land under the new Constitution should extend beyond those granted to the Governor and Legislative Council in 1850. But then there was a change in Imperial policy as to the control of the waste lands and their proceeds, and the Waste Lands (Australia) Acts Repeal Act (18 & 19 Vict. c.56) (Imp.) was passed in 1855 to repeal the 1842 Act. Section 5 of the 1855 Act empowered the new bicameral Legislature of Van Diemen's Land by Act "to regulate the Sale and other Disposal of the Waste Lands of the Crown" in the Colony "and the Disposal of the Proceeds arising therefrom for the Public Service" of the Colony.

When the first Ministry of a responsible government took office in Tasmania (as Van Diemen's Land had become) in December 1856, the waste lands of the Colony and their proceeds were in its control. It had not been necessary to convey title to those lands; what was important was the legislative power to affect the prerogative exercisable over the waste lands of the Colony and to determine the disposition of revenue derived from the exercise of the prerogative. With responsible government, the Tasmanian Ministers became the advisers of the Crown upon the exercise of the prerogative over the waste lands of the Colony. The colonists thus wrested control of the waste lands and their proceeds from the Colonial Office (see per Barwick C.J. in New South Wales v. The Commonwealth (1975), 135 CLR 337 , AT p 369) but that control was transferred to the Colony as a matter of governmental function, not as a matter of title; per Isaacs J. in Williams v. Attorney-General for New South Wales, at p 456. The consequences of the grant of legislative power over the waste lands was stated by O'Connor J. in The State of South Australia v. The State of Victoria (1911) 12 CLR 667 , at pp 710-711:

"That grant necessarily involved a cession to the executive power of the Colony of all rights of possession in public lands for public purposes which therefore had been in the King as representing the supreme Executive of the Empire. If that were not so, the right of self-government in respect of public lands would have been an empty form. Within the limits of self-government conferred by its Constitution the executive power of each self-governing Colony, though subject to control by Imperial enactment, is as independent of the executive power of the Empire as it is of the executive power of any Colony of the Empire."

The administration of Tasmanian waste lands thus became a function of the Colonial government; see per Stephen J. in New South Wales v. The Commonwealth, at p 439. The Crown's prerogative, that fund of powers that is held and administered in the interests of the public, was controlled by Ministers responsible to the Tasmanian Parliament and was amenable to modification or extinction by Act of that Parliament; see The Commonwealth v. New South Wales (1923), 33 CLR 1 , at p 39. The first Tasmanian Acts to control the waste lands were not passed until 1858;21 Vict.No.33 & 21 Vict. No. 34. In that year, the lands which came to constitute the Parks were included in the "Unsettled Lands" in the western section of the Colony and almost the whole area remained unalienated until the HEC land was excised from the Parks and vested in the HEC for the purposes of its Act on 16th September, 1982.

In general, Federation made no difference to the title to waste lands. The Constitution provided for the vesting of property in or the acquisition of property by the Commonwealth in certain cases that are of no present relevance (ss 85,125) and a power to make laws with respect to the acquisition of property from a State was conferred on the Commonwealth Parliament by s 51(xxxi). For the purpose of considering the present argument, however, I assume that the Commonwealth has not acquired the Parks or any part of the Parks (though that assumption will have to be considered later). I assume that the Commonwealth measures restrict the use to which the Parks might be put and thereby purportedly restrict the plenary legislative powers that the Tasmanian Legislature might otherwise exercise with respect to the Parks and the freedom with which, subject to Tasmanian legislation, the Executive Government of Tasmania might otherwise use the Parks. Are the State's legislative and executive powers with respect to waste lands immune from affection by Commonwealth laws?

It is submitted that the Commonwealth measures would inhibit or impair the State's capacity to function as such and would thus produce consequences which the Constitution impliedly denies to Commonwealth laws; see Melbourne Corporation v. The Commonwealth (1947), 74 CLR 31 ; Victoria v. The Commonwealth (the Payroll Tax Case)(1971), 122 CLR 353 , at pp. 383,385-386,392,403,411- 412 and 425; Koowarta v. Bjelke-Petersen (1982), 56 ALJR 625, at pp. 634, 645, 649. Alternatively, a narrower ground is advanced, namely, that the Commonwealth measures cannot impair the exercise of the prerogative of the Crown in right of Tasmania in respect of waste lands of the State as the prerogative generally is said to be immune from impairment by Commonwealth laws.

What do the Commonwealth measures purport to do? They do not diminish the territory subject to the laws of the State, nor the competence of the Tasmanian Legislature to make laws with respect to the Parks. The Parks do not become a Commonwealth place subject to the exclusive legislative powers of the Commonwealth; Constitution, s. 52(i). If a Tasmanian law authorizes a particular use of the Parks and a valid Commonwealth law prohibits that use, the authority conferred by the Tasmanian law is ineffective: that follows from the grant of legislative power to the Commonwealth and the operation of s. 109 of the Constitution. There is no implication in the Constitution that the residue of effective State legislative power should not be diminished. In the Melbourne Corporation Case, Dixon J. said, at p. 82:

"The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities. Among them it distributes powers of governing the country. The framers of the Constitution do not appear to have considered that power itself forms part of the conception of a government. They appear rather to have conceived the States as bodies politic whose existence and nature are independent of the powers allocated to them."

However, there was a time in the mid-nineteenth century when the legislative control of waste lands was essential to the working of responsible government in Tasmania. Does that legislative control now sustain responsible government in the State? Legislative control of waste lands was essential then to ensure the Legislature's control of supply to the Executive, but there is no reason to think that restrictions imposed by Commonwealth law upon the use to which waste lands may be put would impair the State Legislature's ability to control supply to the Executive of the State.

To hold that the Commonwealth measures do not invalidly impair the legislative function of the State leaves unresolved the question whether, in the federal system, they invalidly impair the State's executive functions. I approach this question in the way stated by Dixon J. in the Melbourne Corporation Case, at p. 83:

"... to my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority. In whatever way it may be expressed an intention of this sort is, in my opinion, to be plainly seen in the very frame of the Constitution."

The description of the limiting intention has taken various forms. As Walsh J. observed in the Payroll Tax Case, at pp. 410-411:

"Some of these descriptions have been in terms which, in my opinion, do not provide satisfactory tests for determining whether or not a law is valid. For example, a statement that a law is invalid if it subjects the governmental functions of a State to 'undue interference' provides no satisfactory means for determining what is 'undue'. Again there are difficulties in a test which makes the decision of a legal question depend upon a distinction made by the Court between functions of governments which are 'normal' or are 'essential' and those which are not. A recognition that there are difficulties in formulating a single test in precise and comprehensive terms does not provide, in my opinion, a reason for denying that there can be any limitation by implication upon the power to affect the States."

It may be said in the present case that the Wilderness Regulations apply only to the HEC land and that the Act does not single out the State's waste lands but applies to any land which falls within the definition of "identified property" in the Act. No doubt those considerations suggest that the Commonwealth measures are not discriminatory against the State and therefore do not exhibit one of the indicia of a law "aimed at the restriction or control of a State in the exercise of its executive authority". But absence of discrimination against the State is not necessarily conclusive of the valid operation of a law in its application to the State or its agencies; cf. Bank of NSW V. The Commonwealth (1948), 76 CLR 1 , at p. 338. The consideration which, in my view, determines whether the Commonwealth measures invalidly trespass upon the exercise of the executive authority of the State is to be found in the actual operation of those measures upon the functioning of the Executive Government of the State. There would be some substance in Tasmania's argument if the Commonwealth measures, assuming them to be otherwise valid, were applied to the buildings that house the principal organs of a State. But it is impossible to suppose that the functioning - as distinct from the powers - of any organ of Tasmanian government is affected by a restriction on the use of land which is not devoted to the functioning of an organ of government. This is not a case of a Commonwealth law purporting to restrict the use by the central departments of Government or by Parliament or by the Supreme Court of the buildings appointed for their use in performing their respective functions. The Commonwealth measures impose restrictions on the use of part of the Parks and expose the whole of the Parks to the possibility of restriction if the conditions specified in the Act were satisfied and the required declarations were made by proclamation under s. 6, s. 8. To affect that land in that way is not to impair the functioning of the Executive Government of the State, though the measures limit the areas within which the Executive Government may make its will effective. The Commonwealth measures diminish the powers of the Executive Government but they do not impede the processes by which its powers are exercised. There is no foundation for attributing to the control of the mass of waste lands of a State a special immunity from valid Commonwealth law. Waste lands of a State are to be administered by the Executive Government of the State according to the law which is binding upon it, including the laws of the Commonwealth that bind the State. A restriction upon the doing of specified acts in the exercise of an executive power to use and to control the use of waste lands is no invalid intrusion upon the exercise of that power.

If a law imposing such a restriction is a law with respect to a subject matter specified in the Constitution, its effect upon State executive power does not deprive it of the character which flows from its connection with that subject matter; it does not lose its character by acquiring a different and exclusive character because of its effect upon the State executive; see the Payroll Tax Case per Windeyer J. at p. 400; Wragg v State of New South Wales (1953), 88 CLR 353 , at pp. 385-386; Airlines of NSW Pty Ltd v New South Wales (No 2) (the Second Airlines Case) (1965), 113 CLR 54 , at p. 78. The contrary view of Barwick C.J. in the Payroll Tax Case, at pp. 372-373, has not been followed (cf. per Stephen J. in Actors & Announcers Equity v Fontana Films Pty Ltd (1982), 56 ALJR 366, at p 375) and must now be regarded as incorrect.

The subsidiary argument fastens upon the Crown's prerogative over waste lands and upon the reservation expressed in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers Case) (1920), 28 CLR 129 , at pp. 143-144 and by Dixon J. in the Melbourne Corporation Case, at p. 78 of the question whether the prerogative of the Crown in right of a State is beyond the reach of a law of the Commonwealth. In fact Tasmanian legislation has overtaken the prerogative in the control of the waste lands of the State, but in any event I would respectfully agree with what Mason J. said in Victoria v B.L.F. (1982), 41 ALR 71 , at pp. 117-118:

"There is no secure foundation for an implication that the exercise of the Parliament's legislative powers cannot affect the prerogative in right of the States and the weight of judicial opinion, based on the thrust of the reasoning in the Engineers' Case, is against it.

"If for the protection of the States as constituent elements in the federation an implication needs to be made, then the implication that should be made is that the Commonwealth will not in the exercise of its powers discriminate against or 'single out' the States so as to impose some special burden or disability upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to function."

The prerogative argument is thus subsumed into the principal argument that the powers of the Executive Government are immune from impairment by Commonwealth laws. Both arguments fail. Two further submissions of general importance to the validity of each of the Commonwealth measures have been made by Tasmania: one based upon s. 100 of the Constitution. It is convenient, however, to defer consideration of those arguments until the scope of each of the relevant heads of power is ascertained and such support as they give to the respective measures is determined.

1. The External Affairs Power, section 69 of the Commonwealth National Parks Act and the Wilderness Regulations.

The starting point is the Convention for the Protection of the World Cultural and Natural Heritage (the Convention) which was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) meeting in Paris on 16th November, 1972. Australia deposited its instrument of ratification of the Convention on 22nd August, 1974. The Convention entered into force on 17th December, 1975. Seventy-four countries have become parties to the Convention. The relevant provisions are set out by the Chief Justice in his judgment and I need not repeat them, except to note that the monuments, groups of buildings and sites which are defined by Art. 1 to constitute "cultural heritage" and the natural features, formations, sites and areas which are defined by Art. 2 to constitute "natural heritage" are of "outstanding universal value" from one or more of the points of view specified in the definitions. The inclusion of a property in the World Heritage List pursuant to Art. 11 identifies it as "forming part of the cultural heritage and natural heritage" and as having "outstanding universal value" in the eyes of the World Heritage Committee. The effect of the Convention upon a State Party on whose territory a property forming part of the cultural heritage or natural heritage is situated is a matter of contention. The Commonwealth contends that the Convention imposes an obligation to ensure the "identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage" (Art. 4), and that it confers a benefit upon that Party in that the property becomes eligible under Pt.V of the Convention for the grant of international assistance which may include assistance in artistic, scientific and technical matters. Tasmania, on the other hand, contends that the Convention imposes no real obligation and confers no real benefit; the Convention is said to be no more than a statement of aspiration or political accord.

The resolution of this conflict is of some importance in the light of the several reasons for judgment in Koowarta. In that case the question was whether certain provisions of the Racial Discrimination Act 1975 (Cth) were supported by the external affairs power as laws passed in execution of the International Convention on the Elimination of All Forms of Racial Discrimination to which Australia is a party. The validity of the challenged provisions was upheld by a majority of the Court, but differing reasons were expressed. It was the view common to Mason J., Murphy J. and me, in upholding the validity of the provisions, that the external affairs power extends to the fulfilling by Australia of treaty obligations (see pp. 651, 656 and 664) though entry into a treaty merely as a colourable attempt to convert a matter of internal concern into an external affair and thereby attract Commonwealth legislative power would fail in its purpose; pp. 651, 664. Stephen J., who also upheld the validity of the provisions, expressed his view somewhat differently, at p. 645:

"But where the grant of power is with respect to 'external affairs' an examination of subject-matter, circumstance and parties will be relevant whenever a purported exercise of such power is challenged. It will not be enough that the challenged law gives effect to treaty obligations. A treaty with another country, whether or not the result of a collusive arrangement, which is on a topic neither of especial concern to the relationship between Australia and that other country nor of general international concern will not be likely to survive that scrutiny.

" . . . 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'. And this being so, any attack upon validity, either in what must be the very exceptional circumstances which could found an allegation of lack of bona fides or where there is said to be an absence of international subject-matter, will still afford an appropriate safeguard against improper exercise of the 'External affairs' power."

The minority judgments confined the power more narrowly. The Chief Justice, with whose judgment Aickin and Wilson JJ. agreed, held the challenged provisions to be beyond the Parliament's powers. The Chief Justice said, at p. 638:

"I consider that a law which carries into effect the provisions of an international agreement will only have the character of a law with respect to external affairs if the provisions to which it gives effect answer that description. . . .Since the law whose validity is to be tested is one that gives legal effect within Australia to the provisions of the agreement, the test must be whether the provisions given effect have themselves the character of an external affair, for some reason other than that the executive has entered into an undertaking with some other country with regard to them. . . .

" . . . 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. A law which regulates transactions between Australia and other countries, or between residents of Australia and residents of other countries, would be a law with respect to external affairs, whatever its subject matter. However, for the reasons I have given I consider that a matter does not become an external affair simply because Australia has entered into an agreement with other nations with regard to it."

The point of difference between Stephen J. and the minority lies in the differing perception of the quality of the subject matter of the law needed to affect Australia's external relations. For Stephen J., it was necessary and sufficient for the subject matter of the law to be of international concern; for the minority, the subject matter must itself involve a relationship with other countries or with persons or things outside Australia - thus a law regulating transactions between Australia and other countries or between residents of Australia and residents of other countries is a law with respect to external affairs. As I understand what Stephen J. wrote, his Honour did not hold the view that the subject matter of a valid law must possess an international character apart from the character it acquires by reason of its being the subject of a treaty; the treaty is material to the character of subject matter to which it relates but it is not necessarily conclusive of the character of the subject matter. The point of departure between his Honour's judgment and that of the other majority judgments was his Honour's qualification that a treaty obligation did not necessarily make the subject matter a matter of international concern.

For my part, I would adhere to the view that I expressed in Koowarta, at p. 664: a treaty obligation stamps the subject of the obligation with the character of an external affair unless there is some reason to think that the treaty had been entered into merely to give colour to an attempt to confer legislative power upon the Commonwealth Parliament. Only in such a case is it necessary to look at the subject matter of the treaty, the manner of its formation, the extent of international participation in it and the nature of the obligations it imposes in order to ascertain whether there is an international obligation truly binding on Australia. Applying the test which I hold to be appropriate to the circumstances of the present case, the acceptance by Australia of an obligation under the Convention suffices to establish the power of the Commonwealth to make a law to fulfil the obligation. But even if one applies a stricter test - a test that satisfies the qualification expressed by Stephen J. - the subject of an obligation accepted by Australia under the Convention is a matter of international concern. The qualification expressed by Stephen J. is not difficult to satisfy.

An obligation created by a treaty in force "is binding upon the parties to it and must be performed by them in good faith": Art. 26 of the Vienna Convention on the Law of Treaties, an Article giving expression to the rule pacta sunt servanda which, as the preamble to the Vienna Convention recites, is "universally recognized". It is difficult to imagine a case where a failure by Australia to fulfil an express obligation owed to other countries to deal with the subject matter of a treaty in accordance with the terms of the treaty would not be a matter of international concern, a matter capable of affecting Australia's external relations. In Koowarta, when Stephen J. rehearsed the events which showed the growth in and intensity of international concern for the elimination of racial discrimination, it was to show that the "quite precise treaty obligation" was "on a subject of major importance in international relationships", but his Honour did not suggest that the capacity to affect Australia's relationships with other countries was a question of degree to be assessed by the Court as a step in deciding the constitutional validity of legislation to implement the treaty obligation. Indeed, an enquiry into the extent to which a failure to fulfil a treaty obligation has the capacity to affect Australia's relations with other countries is an enquiry that could hardly be pursued by this Court without advice given by the Executive Government. At all events, the Court can hardly be at liberty to consider that the subject of an obligation binding Australia under a multilateral treaty relating to the world cultural and natural heritage is "necessarily of no concern to other countries", to adopt the phrase of Dixon J. in R. v. Burgess; Ex parte Henry (1936), 55 CLR 608 , at p. 670. Applying the test proposed by Stephen J., the subject of an obligation binding upon Australia under the Convention enlivens the Commonwealth power.

The more fundamental question is whether the Convention imposes an obligation upon Australia. If the Convention does not impose an obligation, it would be necessary to consider whether the subject with which it deals is nevertheless a matter of international concern. In such a case (and I venture to recall what I said in Koowarta, at p. 663), it would be necessary to determine whether the subject affects or is likely to affect Australia's relations with other international persons, an enquiry of some difficulty. There would be "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"; at p. 664. That enquiry need not be pursued if the Convention imposes an obligation on Australia.

Tasmania submitted that these principles effect an undue expansion of Commonwealth power and that the Court should confine the concept of external affairs more narrowly in order to perform what was said to be the great curial function of sustaining the "balance of our Constitution". I suspect that the "balance of our Constitution" in this submission is a balance which owes something to the respective areas of Commonwealth and State legislative activity that were familiar in the early years of Federation and to the notion that the growth in Australia's external affairs ought not to be suffered to expand federal legislative power and correspondingly to erode the legislative powers that might be effectively exercised by the States. Counsel cautiously abstained from founding the submission on the discarded doctrine of State reserved powers, arguing that effect might be given to the submission by confining the meaning of the constitutional expression "external affairs". But it is equally erroneous to construe the several grants of legislative power narrowly. The true principle was recently reaffirmed by this Court in its unanimous judgment in Ex parte the Australian Social Welfare Union (9th June, 1983, unreported, official pamphlet at p. 15) citing what O'Connor J. had said in Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908), 6 CLR 309 , at pp. 367- 368:

". . . it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.

"For that reason, 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."

That canon of construction ensures that the Parliament is enabled to fulfil the object for which the power was designed. The application of that canon of construction to the affirmative grants of paramount legislative powers gives the Constitution a dynamic force which is incompatible with a static constitutional balance. The complexity of modern commercial, economic, social and political activities increases the connections between particular aspects of those activities and the heads of Commonwealth power and carries an expanding range of those activities into the sphere of Commonwealth legislative competence. This phenomenon is nowhere more manifest than in the field of external affairs.

Windeyer J. in the Payroll Tax Case spoke of the concordance throughout the history of the Federation between the growth of Commonwealth power and the growth of national sentiment and the need for national laws, at pp. 395-396:

"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations. With these developments the position of the Commonwealth, the Federal Government, has waxed; and that of the States has waned. In law that is a result of the paramount position of the Commonwealth Parliament in matters of concurrent power. And this legal supremacy has been reinforced in fact by financial dominance. That the Commonwealth would, as time went on, enter progressively, directly or indirectly, into fields that had formerly been occupied by the States, was from an early date seen as likely to occur. This was greatly aided after the decision in the Engineers' Case ((1920), 28 CLR 129 ), which diverted the flow of constitutional law into new channels. I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers' Case as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs."

In the years since the second World War, Australia has been involved in expanding fields of international cooperation, and those fields of cooperation are of enhanced importance to Australians as they are to the people of other countries. If the movements of history are relevant to the striking of a federal balance, the development of Australia's international relations and the participation of the Australian people in the world outside our shores must assuredly be weighed. But it is not the function of this Court to strike some balance between the Commonwealth and the States: that would be to confuse the political rhetoric of States' Rights with the constitutional question of Commonwealth legislative powers the measure of which at any time is not referable to the powers previously exercised by the States. In the present case, the scope of the external affairs power invoked by the Commonwealth cannot depend upon the undoubted power of a State to legislate for and to control the use of its waste lands; the scope of the external affairs power here depends upon the existence and content of an obligation owed by Australia to other countries by virtue of the operation of international law upon the provisions of the Convention.

I should wish to guard against a suggestion that it is necessary to find such an obligation before one can find an external affair which enlivens the power under s. 51(xxix), but in the circumstances of the present case no other foundation for the power appears. There is certainly no obligation erga omnes of the kind to which the International Court of Justice referred in Barcelona Traction, Light and Power Company, Limited I.C.J. Reports 1970, p 3, at p. 32. Whether the Convention gives rise to an international obligation is a matter of interpretation of its terms. The interpretation of the Convention should follow the Articles of the Vienna Convention, the provisions of which codify existing customary law and furnish presumptive evidence of emergent rules of general international law. It is thus appropriate to refer to the Vienna Convention though it had not entered into force when the Convention was adopted; see T.O. Elias, The Modern Law of Treaties (1974) p 13; I. Brownlie, Principles of Public International Law (3rd ed. 1979) pp. 600 et seq; I. M. Sinclair, "Vienna Conference on the Law of Treaties" (1970), 19 I.C.L.Q. 47, at pp. 47 et seq.) Articles 31 and 32 of the Vienna Convention specify the applicable general rules of interpretation:

"Article 31

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.

3. . . .

4. . . ."

"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."

We were invited to refer to travaux preparatoires of the Convention in order to perceive the attenuation of obligatory language from the first draft of the Convention to its final text. In my view that invitation should be rejected. It accords with the Vienna Convention and with the consistent practice of the International Court of Justice and, earlier, of the Permanent Court of International Justice, generally to decline reference to travaux preparatoires, for "there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself"; Conditions of Admission of a State to Membership in the United Nations, I.C.J. Reports 1948, p. 56, at p. 63. In any event, assuming that the obligatory language was attenuated between the drafts and the final text of the Convention, it does not follow that the text adopted excludes an obligation. At the end of the day, the interpretation of the text itself must determine the content of the obligation it imposes. I turn then to the text of the Convention; I do not have recourse to the travaux to arrive at the meaning of the Convention except in relation to one word, "presentation", the meaning of which remains obscure after following the procedure prescribed by Art. 31 of the Vienna Convention. Article 4 of the Convention states that each State Party recognizes that there is a duty belonging primarily to a State on whose territory property being cultural or natural heritage is situated to ensure its "identification, protection, conservation, presentation and transmission to future generations". The duty of "presentation" is not easily understood. The travaux show that the term was inserted in the English text of the Convention in place of the terms "development" or "active development" after objection to the use of the latter term was taken by the United Kingdom in a draft of the proposed Convention with respect to the cultural heritage. The corresponding French text remained unaltered, the Convention following the draft in use of the term "mise en valeur". That term, the drafting Secretariat observed, "when applied to monuments, groups of buildings and sites, is taken to mean conserving and arranging them to bring out their potentialities to best advantage". It seems that "presentation" is the term adopted in the final text to convey that meaning, not only with respect to the cultural heritage but also with respect to the natural heritage. The duty of "presentation" may thus require the provision of lighting or access or other amenities so that the outstanding universal value of the property can be perceived; nevertheless, conservation of the property is an element of its presentation and is not to be sacrificed by presentation. The duty thus requires the protection and conservation of the features which give the property its outstanding universal value. It is the "object and purpose" of the Convention to ensure that those features are protected and conserved.

The first sentence of Art. 4 is not expressed as an obligation imposed upon a State Party: although it is recognized that that duty "belongs primarily" to the State Party on whose territory the relevant property is situated, it is a duty which, subject to the Articles of the Convention, belongs also to all the parties to the Convention. However, the second sentence of Art. 4 and its expansion in Art. 5 specify the commitment of the State Party on whose territory the relevant property is situated. The critical parts of those Articles are:

"Article 4

. . . 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:

. . .

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

The language of these Articles is non-specific; the Convention does not spell out either the specific steps to be taken for the protection, conservation and presentation of the cultural and natural heritage situated on a State Party's territory nor the measure of the resources which are to be committed by the State Party to that end. The variety of properties that are part of the cultural and natural heritage, the economic differences among States Parties and the varying demands upon their respective resources no doubt made it impossible to secure common specific commitments from all States Parties. The want of specificity in Arts. 4 and 5 and the discretion which those Articles leaves to each State Party as to the specific steps which each will take for the protection, conservation and presentation of the cultural and natural heritage situated on its territory raise the question whether the Convention is, at least in its provisions relating to National Protection of the Cultural and Natural Heritage, merely hortatory. Mr. J.E.S. Fawcett, writing on "The Legal Character of International Agreements" in British Year Book of International Law, (1953), vol. 30, 381, at p. 392, suggests that the reservation to a Party of the right to decide the content of its treaty obligation is inconsistent with the existence of a legal obligation: "Suppose that an agreement between States contains only one undertaking, it being the same for each of the parties; and suppose it is so worded that each party is to be the sole judge as to when and to what extent obligations arise for it from that undertaking. How can the question whether or not the undertaking imposes legal obligations on the parties be one for judicial determination? For an obligation cannot be properly called a legal obligation unless its existence and extent are determinable judicially, that is, according to general principles of law; and if the agreement has provided in advance that the parties are to be the judges, each for itself, then cadit quaestio."

Mr. Fawcett's view stands in contrast with that of the late Sir Hersch Lauterpacht who wrote (International Law (E. Lauterpacht ed., 1978), vol. 4, at pp. 111-112):

"A legal duty must also be deemed to exist in those marginal cases in which, by virtue of the instrument in question, a State reserves for itself the right to determine both the existence and the extent of the obligation undertaken by it, as, for instance, in the case of some declarations of acceptance of the optional clause of Art. 36 of the Statute of the International Court of Justice in which the declaring States have reserved for themselves the right to determine whether a matter falls within their domestic jurisdiction. For such determination must take place in accordance with the implied obligation to act in good faith. The fact that the interested State is the sole judge of the existence of the obligation is, while otherwise of considerable importance, irrelevant for the determination of the legal character of the instrument."

It is not necessary to resolve the conflict between the views of the learned writers. No doubt the point at which expressions of ideals and aspirations merge into definite legal obligations "constitutes one of the most delicate and difficult problems of law and especially so in the international arena where generally accepted objective criteria for determining the meaning of language in light of aroused expectations are more difficult to ascertain and apply than in domestic jurisdictions" as Dillard J. observed in his opinion in the Appeal Relating to the Jurisdiction of the ICAO Council (I.C.J. Reports 1972, p 46, at p. 107n). However, we are not concerned with a jurisprudential analysis of the terms of the Convention; what is in form an obligation can be taken to be an obligation for the purposes of s. 51(xxix) if a failure to act in conformity with those terms is likely to affect Australia's relations with other nations and communities. That can be easily tested. Would those relations be affected if Australia failed to take any step in accordance with Arts. 4 and 5 towards the protection and conservation of a property situated in Australia of such outstanding universal value that it is part of the cultural heritage or natural heritage of the world (especially a property listed under Art. 11) when a step is needed to avert or minimize damage to the property? Unless Australia were to attribute hypocrisy and cynicism to the international community, only an affirmative answer is possible. There is a clear obligation upon Australia to act under Arts. 4 and 5, though the extent of that obligation may be affected by decisions taken by Australia in good faith.

Tasmania argued for an analogy between treaty obligations and obligations arising from contracts in municipal law. Though the analogy is imperfect, the cases cited are instructive. Placer Development Ltd. v. The Commonwealth (1969), 121 CLR 353 was relied on as an instance of an illusory contract where the content of the obligation is dependent entirely upon the discretion of the obligor. The manifest difficulty in finding that what the parties express in contractual form is a mere illusion is reflected in the division of opinion in that case. However, the relevant rule upon which Tasmania would rely is expressed in that case by Kitto J., at p. 356:

". . . wherever words which by themselves constitute a promise are accompanied by words showing that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought at all."

The obligation under Art. 4 of the Convention leaves no discretion in a party as to whether it will abstain from taking steps in discharge of the "duty" referred to in that Article. Each party is bound to "do all it can . . . to the utmost of its own resources" and the question whether it is unable to take a particular step within the limits of its resources is a justiciable question. No doubt the allocation of resources is a matter for each party to decide and the allocation of resources for the discharge of the obligation may thus be said to be discretionary, but the discretion is not at large. It must be exercised "in good faith", as Art.26 of the Vienna Convention requires. If a party sought exemption from the obligation on the ground that it had allocated its available resources to other purposes, the question whether it had done so in good faith would be justiciable. An analogy in the law of contract can be found in Meehan v. Jones (1982), 56 ALJR 813 where it was held that a contract did not fail for uncertainty when a "subject to satisfactory finance" clause was construed as requiring the purchaser to act honestly and reasonably. Mason J. said, at p. 820:

"There is in this formulation no element of uncertainty - the courts are quite capable of deciding whether the purchaser is acting honestly and reasonably. The limitation that the purchaser must act honestly, or honestly and reasonably, takes the case out of the principle . . .",

that is, out of the principle stated by Kitto J. in Placer Development Ltd.

When a contract is made with a public body under a duty to act and decide according to a recognizable principle, "the court may be willing to find an obligation which requires that body to reach a decision, in accordance with that principle, as to a matter left to its decision in the contract itself, and so find an enforceable contract where one might not be found between private parties"; Cudgen Rutile (No. 2) Ltd. v. Chalk, (1975) A.C.520, at p. 536. An agreement, even between private parties, is not void for uncertainty "because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract"; per Kitto J. in Thorby v. Goldberg (1964), 112 CLR 597 , AT P. 605.

In my view, no true analogy can be drawn between principles of international law governing treaty obligations and the common law of contract as applied in Australia in relation to illusory contracts. A relevant analogy would have to assume a correspondence between the functions of and remedies available in Australian courts and the functions of and remedies available in international judicial tribunals. But, however imperfect or uncertain the analogy may be, it tends to support the existence of a legal obligation arising under Arts. 4 and 5 of the Convention.

The conclusion that each State Party is under an obligation to act with respect to the cultural and natural heritage situated on its territory in the manner specified in Arts. 4 and 5 of the Convention is confirmed by the adoption by the General Conference of UNESCO, contemporaneously with the adoption of the Convention, of recommendations with respect to properties of lesser significance ("special value") than the properties dealt with by the Convention.

The next matter for consideration is Art. 34 of the Convention: the federal clause. It is drawn upon the hypothesis that the acceptance of an obligation under the Convention does not affect the antecedent powers of the federal and state governments of the federations to which the clause applies, and that the obligations arising under the Convention will fall to be implemented by one or other of those governments according to the antecedent constitutional distribution of powers in that federation. The hypothesis is not consistent with the constitutional law of Australia. On acceptance by Australia of its obligations under the Convention, if not before, the power to implement the Convention came "under the legal jurisdiction of the federal or central legislative power". By force of Art. 34(a) the obligation of the federal government is thus "the same as for those States Parties which are not federal States".

Although the obligation imposed by the Convention upon a State Party with respect to the cultural and natural heritage situated on its territory is expressed in general terms, once a property answering the Convention description of cultural heritage or natural heritage is identified, the primary obligation of the Party is quite precise: it is to protect and conserve the property so far as it can with the resources available to it, whether from national or international sources. As the obligation falls to be discharged with respect to particular properties it is necessary now to trace the steps by which the Parks were identified as part of the cultural heritage and natural heritage.

A request that the Parks be nominated for inclusion in the World Heritage List was made by letter dated 22nd September, 1981, from the then Premier of Tasmania to the then Prime Minister of Australia. On 13th November, 1981, Australia nominated the whole area. (The HEC land had not then been excised). The nomination had not been accepted when, after a change of government in Tasmania, the Premier wrote to the Prime Minister seeking withdrawal of the nomination. That was on 28th June, 1982, the day on which the Act authorizing the construction of the Gordon below Franklin Scheme was assented to. The Commonwealth declined to withdraw the nomination. The Commonwealth Minister for Home Affairs and the Environment announced on 8th December, 1982, however, that the then Commonwealth Government had decided not to intervene in the construction of the dam.

At a meeting of the World Heritage Committee in Paris later in that month, Australia pursued the nomination of the Parks. The Committee had defined the criteria for including properties in the List, as it had been required to do by cl. 5 of Art. 11 of the Convention. In nominating the Parks for inclusion, Australia had submitted that the region contained significant Aboriginal archaeological sites, particularly Fraser Cave (now known as Kutikina Cave), which was described as "one of the six archaeologically richest limestone cave sites in the Western Pacific". There was said to be evidence of human occupation 21,000 years ago, thus establishing southern Tasmania as "the most southerly known penetration of the earth's land surface during ice age times. The earliest date for Tierra del Fuego is some 11,000 years later". It was also stated that the region satisfied all four criteria required for nomination to the List as natural property. The International Council of Monuments and Sites (ICOMOS) made a recommendation to the Committee (at first provisionally but later affirmed) that the Parks answered three of the listing criteria for cultural heritage, namely, that a property should -

"(iii)

bear a unique or at least exceptional testimony to a civilization which has disappeared; or

(iv)

be an outstanding example of a type of structure which illustrates a significant stage in history; or

(vi)

be directly or tangibly associated with events . . . of outstanding universal significance;"

though the last mentioned criterion justifies inclusion in the list only in exceptional circumstances or in conjunction with other criteria. The International Union for Conservation of Nature and Natural Reserves (IUCN) recommended listing of the property as part of the world natural heritage and it identified some of the "key features" as being "the last wild river in Australia; outstanding scenic values; a major part of the temperate rainforest, including the best habitat of some endangered species; and the archaeological sites of crucial worldwide significance".

The Committee resolved to include the property in the World Heritage List. When the Committee included the Parks in the List it expressed concern at the likely effect of the dam construction:

"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."

Upon a change in the government of the Commonwealth the decision that the Commonwealth should not intervene in the construction of the dam was reversed. Work on the HEC land had commenced on 14th July, 1982. The statement of facts upon which the parties to this litigation agree states that an area of approximately 6 hectares has been cleared. That area is close to Warners Landing on the Gordon River. A camp is being constructed on that area and a docking area alongside the river and associated facilities are also being constructed. An access road is being cleared and constructed from the camp to Warners Landing and from the camp towards the dam site, and other minor construction work is being carried out including the clearing of helicopter pads and the cutting of survey transect lines. It is agreed that those things have been done and are being done for the purpose of the construction of the proposed dam, coffer dam and generating works.

The Wilderness Regulations were made on 30th March, 1983. They apply only to the HEC land. Regulations 5(1) and (2) provide 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."

The Wilderness Regulations were stated to bind the Crown in right of the State of Tasmania (Reg. 4(1)). Although the State of Tasmania is not liable to be prosecuted for an offence, any servant or agent of the State of Tasmania is liable to be prosecuted (Reg. 4(2) and (3)), and the controller of the area is liable to prosecution for failure to take reasonable steps to prevent the doing of any act referred to in Reg. 5(1) (Regs. 5(3) and (4)).

The constitutional authority for the making of these Regulations is derived from the obligation imposed upon Australia to protect and conserve the listed property. The extent of the legislative power "must depend upon the terms of the convention, and upon the rights and duties it confers and imposes" (per Evatt and McTiernan JJ. in R. v. Burgess; Ex parte Henry (1936), 55 CLR 608 , AT P.688). The obligation imposed by the Convention, as we have seen, does not condescend to detail in prescribing the steps to be taken, though the taking of appropriate legal measures necessary for the protection and conservation of the property is one of the appropriate steps mentioned in Art.5. It is clear, however, that the selection of the appropriate legal measures is left by the Convention to the party who is to discharge the obligation to protect and conserve the property. It does not follow that the charter of Commonwealth power extends to whatever the Commonwealth thinks appropriate and necessary for the protection and conservation of the property. The obligation being to take appropriate legal measures for the protection and conservation of the property, the power is to make laws which are conducive to that end rather than to make laws which are thought by the Commonwealth to be conducive to that end. As Fullagar J. said in Australian Communist Party v. The Commonwealth (1951), 83 CLR 1 , at p 258:

"The validity of a law . . . cannot be made to depend on the opinion of the law-maker. . .that the law. . . is within the constitutional power upon which the law in question itself depends for its validity."

When an international obligation is expressed in terms of a result to be achieved or aimed at, the means being left to Australia, it gives rise to a legislative power which - like the defence power - looks to the purpose to be achieved by its exercise. Such a power authorizes the making of laws that might "reasonably be considered conducive to the main purpose" as Dixon C.J. said in Marcus Clark & Co. Ltd. v. The Commonwealth (1952), 87 CLR 177 , at p. 220. The Court's function is not to determine what is appropriate or necessary for implementing the Convention (cf. R. v. Poole; Ex parte Henry (No. 2) (1939), 61 CLR 634 , at p. 648) but to say whether the law or any part of it cannot reasonably be considered conducive to the performance of the obligation imposed by the Convention. In R. v. Burgess; Ex parte Henry, Dixon J. stated the relevant criterion, at pp. 674-675:

t is apparent that the nature of this power 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."

The scope of the legislative power is defined by the international obligation and the validity of a law made in purported pursuance of the power depends upon whether "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"; per Menzies J. in the Second Airlines Case, at p. 136. Such a legislative power may be said to be purposive in the same way as the defence power is said to be purposive. Where the ambit of the defence power is in question, the facts which may reveal a connection between the law and the power are ordinarily the subject of judicial notice; Stenhouse v. Coleman (1944), 69 CLR 457 , at pp. 469-472. The Court may stand in greater need of evidence when a law is made in purported pursuance of the external affairs power, and the presumption of validity may have a function to perform in some cases. But this is not one of them. The purpose of the laws here in question is to be collected, as Dixon J. said in Stenhouse v. Coleman, at p. 471, "from the instrument in question, the facts to which it applies and the circumstances which called it forth". I do not perceive the need for more evidence upon any of those issues in the present case than is found in the agreed statement of facts.

The circumstances that have called forth those Commonwealth measures that are referable to the external affairs power are the Convention obligation and the identification of Australian properties including the Parks as the subject of that obligation. The facts to which those measures apply are the respective areas of land covered by the measures, the proposal to construct the dam and works constituting the Gordon below Franklin Scheme, the work which the HEC had put in hand for the construction of the dam, and the consequence of inundation if the dam should be constructed. Having regard to those circumstances, an examination of the respective measures will reveal whether they are each conducive to the protection and conservation of the cultural and natural heritage.

The Wilderness Regulations, applying to the HEC land alone, strike directly at the work in hand for the construction of the dam. Regulation 5 (1) (a) prohibits a person from constructing a dam or associated works or from doing any act in the course of or for the purpose of constructing a dam or associated works. The other paragraphs of Reg. 5(1) and Reg. 5(2) would prevent both the interference with the HEC land which is the inevitable concomitant of the building of the dam and the effects which the construction of the dam and the impounding of water by it would have upon other parts of the Parks. The purpose of the Wilderness Regulations is thus to fulfil, pro tanto, the obligation imposed upon Australia by the Convention.

The Wilderness Regulations do not exhaust Australia's obligations under the Convention. Indeed, the function of protecting and conserving the Parks (other than the HEC land) devolves chiefly upon the Director of the National Parks and Wildlife Service of Tasmania, though his powers no longer extend to the HEC land and he is thus unable to prevent the construction of the dam on that land. It is no objection to the validity of the Wilderness Regulations that the Commonwealth in making those Regulations implements the Convention only in part. The relevant obligation arising under Arts. 4 and 5 is imposed upon Australia but, so far as the performance of the obligation calls for legislative or executive action with respect to a property in a State, the obligation may be performed by the Commonwealth or by the State or partly by each of them. Where a treaty obligation gives rise to a legislative power in the Commonwealth to perform the obligation fully and the Commonwealth chooses to exercise the power only to a limited extent, the validity of the law it chooses to make is not affected by its failure to exercise its powers and to perform Australia's obligation more fully. Unless such a law, on its true construction, could not fairly be regarded as "sufficiently stamped with the purpose of carrying out the terms of the convention" (R. v. Burgess; Ex parte Henry per Evatt and McTiernan JJ., at p 688), it would be a valid law. The Wilderness Regulations protect and conserve the Parks from the consequences of carrying out the Gordon below Franklin Scheme on the HEC land: to that extent those Regulations perform Australia's obligation with respect to the Parks. It is a law with respect to external affairs.

A further attack upon the validity of the Wilderness Regulations was made on the ground that, even though s. 51(xxix) would confer the power to make a law in the terms of the Wilderness Regulations, s. 69(1) of the Commonwealth National Parks Act did not authorize the Governor-General to make them. The attack was not upon the ground that the legislative power arising under s. 51(xxix) could not be delegated to the Governor-General (we have heard no argument on that), but upon the ground that the authority to make regulations conferred by s. 69(1) was limited to regulations for the establishment and management of parks and reserves on land acquired by the Commonwealth under Pt. II of the Commonwealth National Parks Act. Section 69(1) provides:

"The Governor-General may make regulations for and in relation to giving effect to an agreement specified in the Schedule."

The agreements specified in the Schedule are five agreements between Australia and other countries including the Convention. The other four agreements relate to Wetlands of International Importance, Conservation of Antarctic Seals, International Trade in Endangered Species and the Protection of Migratory Birds and Birds in Danger of Extinction. Section 6 (1) (e) declares that one of the objects of Pt. II is to make provision for the establishment and management of parks and reserves "for facilitating the carrying out by Australia of obligations under, or the exercise by Australia of rights under, agreements between Australia and other countries". If regulations under s. 69 could be made to implement the Convention in all respects, the argument runs, s. 6(1) (e) would be unnecessary. To give s. 6 (1) (e) and s. 69 a complementary function it was submitted that s. 69 should be confined in its operation to parks and reserves established under Pt. II on land acquired by the Commonwealth, so that regulations made under s. 69 should supplement the provisions of Pt. II regulating those parks and reserves. But s. 6 (1) (e) furnishes no foundation for reading down the general language of s. 69 (1) further than is necessary to avoid inconsistency between regulations made under s. 69 and the provisions of Pt. II. Part II does not purport to do more than to provide for the establishment and management of parks and reserves by the Commonwealth; it is not otherwise adapted to the implementing of any of the agreements in the Schedule. The implementing of those agreements, insofar as Pt. II does not provide what is appropriate for giving effect to them, is necessarily left to the regulations made under s. 69. The Wilderness Regulations fall within the statutory power. Deferring for the moment consideration of the arguments based on s. 100 of the Constitution, I would hold the Wilderness Regulations to be a valid law of the Commonwealth.

2. The External Affairs Power and the Act

The legislative power arising from the obligation under Arts. 4 and 5 falls to be exercised with respect to specific properties. The restrictions on use of land which are expressed in the Act can be applied only to an "identified property" as defined in s. 3 (2) which, if it is situated in a State, satisfies one or more of the criteria set out in the paragraphs of s. 6 (2). Identified property is not necessarily property with respect to which the legislative power may be exercised. A property which is submitted to the World Heritage Committee as suitable for inclusion in the World Heritage List (and is accordingly identified property under s. 3 (2) (a) (i) may not prove to be part of the cultural or natural heritage. A property which is declared by the regulations to form part of the cultural heritage or natural heritage (and is accordingly identified property under s. 3 (2) (a) (ii)) may not in fact be part of the cultural or natural heritage. In an attempt to ensure that s. 9 applied only to identified property in a State with respect to which Commonwealth legislative power may be exercised, the draftsman has inserted the qualifying paragraphs of s. 6 (2).

Paragraph (b) relates to property the protection or conservation of which is a matter of international obligation, whether by reason of the Convention or otherwise. This criterion of external affairs is, for reasons which I endeavoured to explain in Koowarta, at pp. 663-664, a particular instance of a matter which affects or is likely to affect Australia's relations with other countries. And therefore a property which satisfies the criterion set out in par. (b) is a property with respect to which the Commonwealth may exercise such power under par. (xxix) as arises from the obligation in question. It is unnecessary in the present case to decide the validity of the other paragraphs in s. 6 (2). I observe, however, that the first limb of par. (c) and par. (d) owe their form to some passages in the majority judgments in Koowarta, but I find no judicial warrant for the provisions of par. (a) or par. (e). The Parks, including the HEC land, being included on the World Heritage List, are the subject of Australia's obligation under Arts. 4 and 5 of the Convention. As the provisions of par. (b) are thus attracted to support the proclamations made under s. 6 (3), it is undesirable to consider the sufficiency of the criteria expressed by the other paragraphs of s. 6 (2).

The next question is whether the Commonwealth may, under the power arising from the obligation imposed by Arts. 4 and 5, make a law which restricts the use of any identified property the protection and conservation of which is a matter of international obligation in the ways specified in s. 9(1) (a) to (g). That question is to be determined without reference to the features of the particular properties which have been or may hereafter be declared under s. 9 applies, for pars. (a) to (g) prohibit the doing of specified acts on every kind of identified property that Australia is obliged to protect and conserve. The protection and conservation of some properties may be ill-served by the imposition of such restrictions. Take the present case. If the Commonwealth has validly exercised its power to halt construction of the dam, there may be some structures already there that should be removed to allow the area to return, as far as may be, to a condition of wilderness. In that event, the obligation of conservation would be impeded by the statutory prohibition against destroying a structure (par. (d)). The fact is that protection and conservation are functions that can only be performed with respect to an individual property; those functions have to be performed according to the condition of the property at the time and with reference to any threat that may then be posed by specific dangers. That fact is reflected in the drafting of the World Heritage in Danger provisions of the Convention (Art.11 cl.4). The difficulty with pars. (a) to (g) of s. 9 (1) is that they generally prohibit the kinds of acts therein specified whenever done on any property to which s. 9 applies or may be made to apply. It is impossible to say that such provisions, in their application to all such properties at all times, would conduce to the protection and conservation of those properties. They are too wide. But are they saved by the Minister's power to consent in writing to the doing of the acts mentioned? Section 13(1) confines the Minister's discretion:

"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."

A prohibition that would be invalid because it is too wide to be conducive to the purpose for which the law might validly be made can sometimes be saved if the law provides for a discretionary power to lift the prohibition. A licensing system may be provided for, and such a system will be valid if the law so confines the exercise of the discretion that the licensing authority cannot have regard to factors foreign to the purpose for which law might validly be made; see the Second Airlines Case, especially per Kitto J. at pp. 112-113. the Act precludes the Minister from having regard to factors foreign to the purpose of fulfilling the Convention obligation, and it might reasonably be thought that the Minister's exercise of his discretion to consent in particular cases would secure the faithful pursuit of that purpose in those cases. But I cannot think that the reposing of a discretion in the Minister is a real attempt to create a licensing system for the mass of cases that might arise. The Minister's consent might be sought by persons wishing to do trivial acts upon any property declared under s. 6(3); the property may be in any part of the six States; the Minister is given no power to delegate his power to consent; and the Act makes no provision for an administrative system for the reception and disposition of applications for consent. If the validity of a law depends upon the creation of a licensing system, a failure to make provision for administration of the system where such provision is necessary is fatal to the law's validity; cf. per Williams J. in Armstrong v. The State of Victoria (1955), 93 CLR 264 , at p 281. The Act fails to provide an administrative system by which the discretion conferred on the Minister might ensure that the operation of the Act faithfully pursues the purpose of protection, conservation and presentation under the Convention. It follows that pars. (a) to (g) of s. 9(1) are, in my opinion, invalid.

Paragraph (h) and sub-s. (2) are drawn more narrowly, Paragraph (h) permits the prescription of an act in relation to a particular property and thus authorizes the making of a regulation which is conductive to the protection and conservation of the property. The validity of a regulation made under par. (h) of s. 9(1) depends upon its terms, and upon the property to which it applies. Subsection (2) again contains a general prohibition against damage or destruction that appears to be too wide. It may be that the damage of or destruction to "any property to which this section applies" could be construed as a provision protecting the property as a whole. Upon that construction, a particular act which, though damaging to or destructive of a part of the property, is beneficial to the whole, would not be regarded as falling within sub-s. (2). That construction does not accord with s. 3(2)(b) which requires any part of identified property to be treated as identified property so that an act which is beneficial to the whole nevertheless will fall within the prohibition if it involves damage or destruction to any part. It follows that in my view sub-s. (2) is invalid.

I turn then to the regulations made under s. 3(2)(a)(ii), to the proclamations made under s. 6(3), and to the regulations made under s. 9(1)(h). By that complex of instruments, particular acts are prohibited in relation to particular property.

The whole of the Parks as they stood before the excision of the HEC land is "identified property" by virtue of s. 3(2)(a)(i). On 25th May, 1983, regulations were made declaring certain property to be part of the natural heritage and certain property to be part of the cultural heritage pursuant to s. 3(2)(a)(ii). The World Heritage Properties Conservation Regulations (S.R. No. 65 of 1983) declared that the State reserves constituting the Parks as they stood prior to excision of the HEC land and an area (described in Sch. 1 to the Regulations) of the Franklin-Lower Gordon Wild Rivers National Park form part of the natural heritage (Reg. 2), and that an area (described in Sch. 2 to the Regulations) of the same National Park, Kutikina and Deena Reena Caves and all other archaeological sites within the Sch. 2 area form part of the cultural heritage (Reg. 3). The greatest part of the area described in Sch. 2 lies within the area described in Sch. 1. Both the Sch. 1 area and the Sch. 2 area encompass the greater part of the future HEC land, and each of those areas covers a part of the HEC land.

By proclamations made on 26th May, 1983, and published in the Gazette on the same day, the Governor-General proclaimed the several areas to which s. 9 of the Act is to apply. Section 9 was declared to apply to-

(i)

the Franklin Lower Gordon Wild Rivers National Park as it stood on 13th November, 1981;

(ii)

the Sch. 1 land within the boundaries of the HEC land and the future HEC land;

(iii)

the Sch. 2 land within the boundaries of the HEC land and the future HEC land;

(iv)

Kutikina Cave and Deena Reena Cave;

(v)

an open archaeological site at the base of the flying-fox pylon on the west bank of the Franklin River at a given reference point (hereafter the open archaeological site. . . ) .

Regulations were made on 26th May, 1983, (S.R. No. 67 of 1983) prescribing acts in relation to particular property under s. 9(1)(h). The prescribed acts were prohibited only in relation to each of three properties (called a relevant property . . .) specified in Reg. 4(1), namely:-

(a)

the Sch. 2 land within the boundaries of the HEC land and the future HEC land;

(b)

the Kutikina Cave and the Deena Reena Cave; and

(c)

the open archaeological site.

The acts prescribed in relation to each relevant property by Reg. 4(2) were:

"

(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."

In my opinion, the acts thus prescribed in relation to each relevant property are conducive to the performance of the obligation under Arts. 4 and 5 of the Convention. The reasons which compel upholding the validity of the Wilderness Regulations establish the validity of the Regulations made under s. 9(1)(h) in its application to the relevant properties.

3. The Corporations Power and sections 7 and 10 of the Act.

The circumstance which gives rise to a question of constitutional validity under ss. 7 and 10 is the incorporation of the HEC under. 4 of the HEC Act. It is said to be a trading corporation and within the legislative power granted by the Constitution. The constitutional issue should not be addressed if the HEC is not a trading corporation, for unless it is a trading corporation it is not bound by the prohibitions contained in s. 10 of the Act.

By s. 15(2) of its Act, the HEC is empowered to carry on and conduct any business "relating to or connected with the generation, reception, transmission, distribution, supply, and sale of electrical energy" and to "provide, sell, let for hire . . . 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 . . .". The activities of the HEC include the carrying out of those functions. It maintains twenty-three hydro power stations and one thermal power station. It sells electricity to about 190,000 customers including some major industrial load customers who are supplied at a special tariff. It has a work force of 4,843 and from time to time it carries out work for other authorities or persons and receives payment for that work. During the financial year ended 30th June, 1982, it derived $55,191,339 from the bulk sale of power, $105,629,431 from the retail sale of power and $2,602,000 from accrued retail sales. During the same period it made a gross profit of $103,789,800 and a net profit of $5,965,947 after allowing for interest, depreciation of fixed assets, contribution to the consolidated revenue of Tasmania (being 5 per cent of its total revenue from retail sales of electrical energy) and an amount provided for equalization of fuel cost to the thermal station. Its trading activities are thus a substantial part of its overall activities, if not the predominant part. The HEC is an independent statutory corporation; Launceston Corporation v. The Hydro-Electric Commission (1959), 100 CLR 654 , at p. 660. Consistently with the views which have prevailed in this Court (see State Superannuation Board v. Trade Practices Commission (1982), 57 ALJR 89; R v Federal Court of Australia; Ex parte WA National Football League (Adamson's Case) (1979), 143 CLR 190 ) the HEC must be held to be a trading corporation.

The constitutional issue thus arises: are the prohibitions contained in s. 10 laws with respect to trading corporations? Laws with respect to trading corporations are laws with respect to artificial persons. To be such a law, the law must discriminate: that is to say, it must be a law which operates to confer a benefit or impose a burden upon those persons when its operation does not confer a like benefit or impose a like burden on others; Fontana Films, at p. 385. Section 10 of the Act is discriminatory. It imposes a restriction upon the use of property by the several categories of corporations mentioned in pars. (a), (b) and (c) of s. 10(2), which include trading corporations formed within the limits of the Commonwealth, but it does not impose a like restriction on other persons. Sections 10(2) and (3) direct their commands to trading corporations without any relevant qualification;s. 10(4) directs its commands to trading corporations where the corporation does the relevant act in contravention of a command "for the purposes of its trading activities". Subsections (2) and (3) give rise to the question whether a law which merely prohibits trading corporations from doing an act that may be unconnected with its trade is a law with respect to trading corporations. That question has not hitherto been decided by this Court. In Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 CLR 468 , Barwick C.J. expressed the opinion that a law addressed specifically to trading corporations is not, without more, sufficient to attract the corporations power; see pp. 489-490. Menzies J. left that question open (see p. 508). It was unnecessary to decide it in Fontana Films. If sub-s. (4) of s. 10 applies to the HEC's construction of the dam, the question need not be decided now. For the reasons which I stated in Fontana Films (at p. 386), I should not wish to decide a question wider than the circumstances of the case require. The acts prohibited by sub-s. (4) are the acts referred to in sub-ss. (2) and (3), and the qualification "for the purposes of its trading activities" results in the affection of the trading activities of trading corporations. It is clearly a law with respect to trading corporations, but can its validity be sustained without deciding the validity of sub-ss. (2) and (3)?

It is unnecessary to decide the validity of sub-ss. (2) and (3). Even if sub-ss. (2) and (3) were invalid, their invalidity would not affect sub-s. (4). Subsection (4) is not dependent upon sub-ss. (2) and (3): the opening words of sub-s. (4) ("(w)ithout prejudice to the effect of sub-sections (2) and (3)") show that it has an independent operation. The opening words of subs. (4) preserve the operation of sub-ss. (2) and (3); they do not affect the operation of sub-s. (4). Subsection (4) draws upon the text of sub-ss. (2) and (3) merely as a shorthand means of avoiding repetition of pars. (d) to (m) of sub-s. (2) and sub-s. (3). Paragraphs (d) to (k) of sub-s. (2) and sub-s. (3) contain the same prohibitions as those set out in s. 9(1)(a) to (g) and s. 9(2), but when they are imported into sub-s. (4) they are not struck with invalidity. The corporations power, unlike the power arising from Australia's acceptance of the Convention obligations, does not look to the purpose to be served by laws made under it.

Does sub-s. (4) apply to the HEC's activities in constructing the dam? The agreed facts show that the HEC land has been vested in the HEC for the purpose of carrying out the Gordon below Franklin Scheme in order to produce electrical energy, the commodity in which the HEC trades. The dominant if not exclusive purpose of constructing the dam is to provide additional generating capacity for the HEC system, an element in the HEC's coordinated activity of generation, distribution and sale of electrical energy. The carrying out of the Gordon below Franklin Scheme is thus for the purposes of the HEC's trading activities. Upon the agreed facts, the construction activities of the HEC fall within s. 10(4).

By Proclamations made on 26th May, 1983, the Governor-General proclaimed the areas to which s. 10 applies. It applies to:

(i)

the Sch. 1 land within the boundaries of the HEC land and the future HEC land;

(ii)

the Sch. 2 land within the boundaries of the HEC land and the future HEC land;

(iii)

Kutikina Cave and Deena Reena Cave.

Regulations were made on 26th May, 1983, (S.R. No. 67 of 1983) pursuant to s. 10(2)(m) of the Act prescribing the same acts (that is, works in the course of, preparatory to and associated with the construction of the dam) as were prescribed pursuant to s. 9(1)(h). The relevant area in relation to which those acts were prescribed was the same area as that prescribed under s. 9(1)(h). The area in respect of which any prohibition imposed by s. 10(4) applies is immaterial to the validity of that subsection. The proclamations and regulations so far as they affect the operation of s. 10(4) are valid.

4. Power to make special laws for the people of any race and sections 8 and 11 of the Act.

Section 51 (xxvi) of the Constitution was amended in 1967 by deleting the words "other than the aboriginal race in any State" from the original text which granted power to make laws with respect to "(t)he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws:". No doubt par. (xxvi) in its original form was thought to authorize the making of laws discriminating adversely against particular racial groups; see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) p. 623. The approval of the proposed law for the amendment of par. (xxvi) by deleting the words "other than the aboriginal race" was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. The passing of the Racial Discrimination Act manifested the Parliament's intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws.

Where Parliament seeks to confer a discriminatory benefit on the people of the Aboriginal race, par. (xxvi) does not place a limitation upon the nature of the benefits which a valid law may confer, and none should be implied. It was submitted that, as 11 do not confer legal rights, powers or privileges upon Aboriginal people in addition to the legal rights, powers or privileges conferred upon the public generally, those provisions are not supported by par. (xxvi). Is it sufficient that the discriminatory benefit is found in the special importance or significance which the people of a race attach to the rights, powers or privileges generally conferred? In Koowarta Stephen J. noted at p 643 that the "necessary special quality might perhaps be sufficiently attracted by facts dehors the legislation". The concept of "race" suggests the answer.

"Race" is not a term of art; it is not a precise concept; see Ealing London Borough Council v. Race Relations Board, [1972] A.C. 342 , at p 362 per Lord Simon of Glaisdale. There is, of course, a biological element in the concept. The UNESCO studies on race and racial discrimination reveal some difficulty in giving a precise definition even to this element. Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, in his report to the United Nations ("Special Study on Racial Discrimination in the Political, Economic, Social and Cultural Spheres" (1971), U.N. Document No. E/CN.4/Sub 2/307Rev.1, pp. 12-13) traces some of the findings of experts:

"A conference of experts assembled in Moscow by UNESCO in August 1964 to give their views on the biological aspects of the race question, adopted a set of proposals on this subject. They stated inter alia that all men living today belong to a single species and are derived from a common stock (Art.I); that pure races in the sense of genetically homogeneous populations do not exist in the human species (Art,III); and that there is no national, religious, geographic, linguistic or cultural group which constitutes a race ipso facto (Art,XII). The proposals concluded: "The biological data given above stand in open contradiction to the tenets of racism. Racist theories can in no way pretend to have any scientific foundation.

". . .

"Popular notions of 'race', however, have frequently disregarded the scientific evidence. Prejudice and discrimination on the ground of race, colour or ethnic origin occur in a number of societies, where physical appearance - notably skin colour - and ethnic origin are accorded prime importance."

A need to identify the biological element of the concept followed the enactment of a Race Relations Act in New Zealand and in England. In New Zealand the question arose in King-Ansell v. Police, (1979) 2 N.Z.L.R.531. Richardson J. said, at p 542:

". . . all four expressions 'race', 'colour', 'national origins' and 'ethnic origins' are concerned with antecedent rather than acquired characteristics.

"It does not follow that the identifying characteristics must be genetically determined at birth. The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning."

His Honour discounted the importance of, if not the necessity for, scientific proof of the biological element:

"The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins."

In England in Mandla v. Dowell Lee, (1983) 1 Q.B.1, Kerr L.J. in reference to the words "race or ethnic or national origins" said, at p 19:

". . . they clearly refer to human characteristics with which a person is born and which he or she cannot change, any more than the leopard can change his spots."

Membership of a race imports a biological history or origin which is common to other members of the race, but Richardson J. is surely right in denying the possibility of proving ultimate genetic ancestry. However, in my respectful opinion, I do not think his Honour was propounding his "real test" of common regard as being conclusive or exhaustive. Actual proof of descent from ancestors who were acknowledged members of the race or actual proof of descent from ancestors none of whom were members of the race is admissible to prove or to contradict, as the case may be, an assertion of membership of the race. Though the biological element is, as Kerr L.J. pointed out, an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. Physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power.

A law which, on its face, does not discriminate in favour of the people of a race, may nevertheless be valid if it discriminates in favour of those people by its operation upon the subject matter to which it relates. That involves no departure from the ordinary processes of constitutional interpretation. The characterization of a law requires that the operation of the law be ascertained by reference to its terms and their application to the circumstances in which the law operates. If the power under par. (xxvi) were restricted to a discriminatory conferring of legal rights or a discriminatory imposition of legal obligations on the people of a race, laws for the general protection of historical memorabilia, of religious or spiritual shrines or of cultural practices which are of particular significance to the people of particular races would not be valid. The things which are a focus of the life of the race would lie outside the boundaries of a power which is expressed to authorize special laws for its people.

I would not construe par. (xxvi) as requiring the law to be "special" in its terms; it suffices that it is special in its operation. Section 8 ensures that s. 11 is special in its operation. It was argued that such a construction was impliedly rejected in Koowarta, for the proscribing of racial discrimination must surely have been a matter of special significance for the people of the Aboriginal race. If racial discrimination were peculiarly a practice affecting Aborigines, there would be much force in the argument. But victims of racial discrimination may sadly be found in many races: the people of many races may say with Shylock (The Merchant of Venice, Act III, Scene I):

"If you prick us, do we not bleed? if you tickle us, do we not laugh? if you poison us, do we not die? and if you wrong us, shall we not revenge?"

Section 11 of the Act operates only in protection or conservation of a site which is of particular significance to the people of the Aboriginal race (s 8(2)(b) and which is declared to be a site to which s 11 applies (s 8(3)). The support for these sections must be found in their operation in protection of a site of "particular significance". The phrase "particular significance" in s. 8 cannot be precisely defined. All that can be said is that the site must be of a significance which is neither minimal nor ephemeral, and that the significance of the site may be found by the Aboriginal people in their history, in their religion or spiritual beliefs, or in their culture. A group of whatever size who, having a common Aboriginal biological history, find the site to be of that significance are the relevant people of the Aboriginal race for whom the law is made. To confine the legislative power conferred by par. (xxvi) so as to preclude it from dealing with situations that are of particular significance to the people of a given race merely because the statute on its face does not reveal its discriminatory operation would be to deny the power the high purpose which the Australian people intended when the people of the Aboriginal race were brought within the scope of its beneficial exercise.

Of course, an issue remains as to whether the sites proclaimed under s 8 are in truth sites of particular significance to the people of the Aboriginal race. That is a question of fact that can be resolved by evidence if need be. It is not appropriate to specify, by reference to the statement of contentions by the parties, what evidence will prove to be admissible.

A declaration of sites to which s. 11 applies was made on 26th May, 1983. Section 11 was proclaimed to apply to three sites: Kutikina Cave, Deena Reena Cave and the open archaeological site. The prohibitions contained in s 11 correspond broadly with the prohibitions contained in ss. 9(1) and 10(2) except that they are restricted in their application to specified sites. Section 11(1)(j) permits the prescribing of an act in relation to a particular site to which the section applies, following the pattern of ss. 9(1)(h) and 10(2)(m). On 26th May, 1983, a regulation was made specifying for the purposes of s. 11(1)(j) Kutikina Cave, Deena Reena Cave and the open archaeological site. The regulation prohibited the doing of those acts that were prohibited by the regulations under ss 9(1)(h) and 10(2)(m), namely, the carrying out of works in the course of, preparatory to, or associated with the construction of the dam. The first two of these sites lie within the future HEC land and are presently part of the Wild Rivers Park. I assume that the third site lies within the same area.

The protection of sites of particular significance to the Aboriginal people is a purpose which attracts the support of s. 51(xxvi). But it is a question whether the prohibitions imposed by s. 11 are conducive to the fulfilment of that purpose. Difference considerations apply under s. 11 to those which apply under s. 9, for s. 11 applies only to specific sites that have the required significance for the Aboriginal people. The protection of particular sites from any physical interference might reasonably be regarded as conducive to maintaining their significance for the Aboriginal people, and ss 8 and 11 are therefore valid.

5. Acquisition on just terms

the Constitution has a dual function. It grants power to make laws with respect to the acquisition of property and it limits the exercise of such a power by requiring that a law with respect to the acquisition of property provide just terms. Neither the grant of the power nor the limitation suggests that the concept of "property" be narrowly confined. The concept comprehends "innominate and anomalous interests" in addition to those estates in land or those interests in land or in a chattel or in a chose in action which are recognized at law or in equity; per Dixon J. in Bank of NSW v. The Commonwealth, at p. 349. The free enjoyment of proprietary rights so various in nature may be affected by a great variety of laws, but par. (xxxi) extends only to laws for the acquisition of proprietary rights. The terms of par. (xxxi), from which its purpose is to be gathered, are not directed to the possession or enjoyment of proprietary rights by a State or by a person but to the acquisition of those rights from the State or person in whom they are vested. Dixon J. must have spoken elliptically when, in the Bank of NSW v. The Commonwealth, at p. 349, he described one of the purposes of par. (xxxi) to be the protection of the individual or the State "against governmental interferences with his proprietary rights without just recompense" (emphasis added). In Attorney-General (Cth) v. Schmidt (1961), 105 CLR 361 , his Honour attributed a different operation to s. 51(xxxi), saying, at p. 372:

"The scope of s 51(xxxi) is limited. Prima facie it is pointed at the acquisition of property by the Commonwealth for use by it in the execution of the functions, administrative and the like, arising under its laws. It is perhaps not easy to express in a paraphrase the extent of the operation of s. 51(xxxi) and thus to define its full scope and application but it is at least clear that before the restriction involved in the words 'on just terms' applies, there must be a law with respect to the acquisition of property (of a State or person) for a purpose in respect of which the Parliament has power to make laws."

Where neither the Commonwealth nor any other person acquires proprietary rights under a law of the Commonwealth, there is no acquisition upon which par. (xxxi) may fasten. And so, in Trade Practices Commission v. Tooth & Co. Ltd.(1979) 142 CLR 397 at 408; 26 ALR 185 at 192-3, Gibbs J. observed that "not every compulsory divesting of property is an acquisition within s 51 (xxxi)".

In the United States, where the Fifth Amendment directed that private property should not be "taken" without just compensation, the Supreme Court construed the provision as one "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole" (Armstrong v. United States 364 U.S.40 (1960), at p. 49 (4 Law. Ed. 2d 1554, at p. 1561)). If this Court were to construe s. 51(xxxi) so that its limitation applies to laws which regulate or restrict the use and enjoyment of proprietary rights but which do not provide for the acquisition of such rights, it would be necessary to identify a touchstone for applying the limitation to some regulatory laws and not to others. The experience of the Supreme Court of the United States was frankly stated in Penn Central Transport Co. v. New York City 438 U.S. 104 (1978), at p. 124 (57 Law.Ed.2d 631, at p. 648):

". . . this Court, quite simply, has been unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons."

In this Court, the limitation in par. (xxxi) has not been thought hitherto to apply to a regulatory law that did not effect an acquisition of property. In Tooth's Case, the distinction between a law that provides for an acquisition of property and a law that does not was clearly drawn. Thus Mason J. said, at p. 428:

"It is one thing to say that a law which is merely regulatory and does not provide for the acquisition of title to property is not a law with respect to acquisition of property. It is quite another thing to say that a law which does provide for the compulsory acquisition of title to property and which also happens to be regulatory is not a law with respect to the acquisition of property."

In the present case the Wilderness Regulations and 11 of the Act affect the freedom of the State of Tasmania and of the HEC to use the Wild Rivers National Park and the HEC land for the construction of the proposed dam. But that is not sufficient to attract the operation of par. (xxxi). Unless proprietary rights are acquired, par. (xxxi) is immaterial to the validity of the impugned Commonwealth measures. Though the Act conferred a power upon the Minister to consent to the doing of acts which were otherwise prohibited on or in relation to land, that power was not a proprietary right. In my opinion, the Commonwealth acquired no property from Tasmania. It follows that the question of just terms does not arise.

6. Section 100 of the Constitution

Section 100 prohibits the Commonwealth by law or regulation from abridging the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation, but the prohibition relates only to a "law or regulation of trade or commerce". The phrase "(a) law or regulation of trade or commerce" is apt to describe a law or regulation in reference to the power that does or could support it, for it is a phrase speaking of a class of laws or regulations identified elsewhere in the Constitution. A law or regulation of trade or commerce is a law supported by s. 98 in conjunction. That view is consistent with the opinion of the Court in Morgan v. The Commonwealth (1947), 74 CLR 421 , at pp. 454- 455, 458-459. None of the Commonwealth measures is a law or regulation of trade or commerce. It follows that s. 100 contains no impediment to the validity of the Commonwealth measures.

I would therefore answer the questions reserved for consideration of the Full Court:

Actions No. C6 and No. C8 of 1983

Question 1.(a)"Yes".

Question 1.(b)"Yes".

Question 2."No".

Question 3."No".

Question 4.Does not arise.

Question 5. "Not invalid but ineffective unless the Commonwealth Minister consents".

Question 6. Not necessary to answer.

Action No. C12 of 1983

Question 1.(a)"Yes, apart from (i) Paragraphs (a) (c) (d) and (e) of s. 6(2), the validity of which it is not necessary to determine;(and) (ii) Paragraphs (a) (b) (c) (d) (e) (f) and (g) of s 9(1) and s 9(2).

Question 1. (b)(i) "Section 7 is valid; (and) (ii) subss. (1) and (4) of s. 10 are valid. It is unnecessary to determine the validity of sub-ss. (2) and (3) of s. 10 independently of their application for the purposes of sub-s. (4) and s 10

Question 1.(c)"Yes, in their entirety".

Question 1.(d)Does not arise.

Question 2. "No, save as to Reg. 5 of the World Heritage Properties Conservation Regulations and the two Proclamations made under s. 8(3) on 26th May, 1983, the validity of which depends on whether Kutikina Cave, Deena Reena Cave and the open archaeological site are sites of particular significance to people of the Aboriginal race".

Question 3. Does not presently arise.

Question 4. See answer to Question 2.

Question 5.(a)"Yes".

Question 6. "Not invalid but ineffective unless the Commonwealth Minister consents".

Question 7. Not necessary to answer.

Question 8."Yes".