Commonwealth v Tasmania (The Tasmanian Dam Case)
158 CLR 146 ALR 625
(Judgment by: MASON 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
Judgment date: 1 July 1983
BRISBANE
Judgment by:
MASON J
MASON J. The legislation, the facts and the questions for decision in these proceedings have been set out in the reasons for judgment of the Chief Justice.
The External Affairs Power
At the outset we must identify what Koowarta v. Bjelke-Petersen (1982), 56 ALJR 625 decided as to the scope of the external affairs power because the correctness of Koowarta was common ground between the parties. There the validity of Racial Discrimination Act 1975 (Cth) was upheld as an exercise of the power conferred by s. 51(xxix) of the Constitution on the footing that the enactment of the two sections was a discharge of Australia's obligation under the International Convention on the Elimination of All Forms of Racial Discrimination. By becoming a party to that Convention, Australia undertook to prohibit and eliminate racial discrimination in all its forms by appropriate means, including legislation. 12 prohibited various forms of racial discrimination in Australia; in accordance with the Convention, they dealt with matters that were purely domestic affecting the conduct of people in Australia in relation to each other, having no relationship with other countries except in so far as the sections gave effect to an obligation imposed by an international convention. The purely domestic character of the matters dealt with was the point of departure between the majority and the minority, the latter taking the view that the external affairs power did not extend to the enactment of legislation on matters of that character.
Although we can confidently say that the purely domestic character of the matters dealt with by the law enacted in discharge of the Convention obligation is not in itself, according to Koowarta, an objection to the exercise of the power, it is difficult to identify what Koowarta prescribes as the essential qualifications for the validity of such a law. This is because the members of the majority were not united in the reasons by which they supported their conclusion. Murphy J., Brennan J. and I thought that it was enough that by entering into a genuine international treaty Australia had assumed an international obligation to enact domestic laws of the kind already described, notwithstanding that they were purely domestic in character; see pp. 651, 656, 664. Stephen J., the remaining member of the majority, along with the minority (Gibbs C.J., Wilson and Aickin JJ.) considered, at p 645, that it is not "enough that the challenged law gives effect to treaty obligations" and that it is necessary to show that the subject matter of the treaty and of the legislation is "of international concern", a view which seems to have its origin in the remarks of Starke and Dixon JJ. in Rex v. Burgess; Ex parte Henry (1936), 55 CLR 608 , at pp 658 and 669. Two passages from the judgment of Stephen J., at p. 645, indicate his Honour's view:
"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."
A little later his Honour said:
"Thus areas of what are of purely domestic concern are steadily contracting and those of international concern are ever expanding. Nevertheless the quality of being of international concern remains, no less than ever, a valid criterion of whether a particular subject-matter forms part of a nation's 'external affairs'. A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's 'external affairs'. 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."
His Honour did not attempt to explore the circumstances, or to give examples of circumstances, in which it might be held that the subject matter of a bona fide treaty was not of international concern or of concern to the relationship between Australia and the other party or parties to the treaty. However, his Honour stated, at p 646 that the content of the external affairs power must be determined by what is generally regarded at any particular time as a part of the external affairs of the nation, describing this as "a concept the content of which lies very much in the hands of the community of nations of which Australia forms a part".
If we take the decision as turning on Stephen J.'s view of the power, because it reflects the narrowest expression of it by the Justices who constituted the majority, the case is authority for the proposition that the power authorizes a law which gives effect to an obligation imposed on Australia by a bona fide international convention or treaty to which Australia is a party, at any rate so long as the subject matter of the convention or treaty is one of international concern, or of concern to the relationship between Australia and the other party or parties. The question then is: what is meant by the requirement that the subject matter of a treaty should be of international concern or of especial concern to the relationship between Australia and the other parties? We need to know the answer to this question in order to decide whether it is an additional element in the exercise of the power and, if so, whether the requirement is satisfied in the present case.
Despite the argument presented by Tasmania, the notion that the subject matter of a treaty must be of international concern remains an elusive concept. In an endeavour to give content to the concept and at the same time to give expression to essential qualifications on the exercise of the power Mr Ellicott, Q.C., for Tasmania, proposes three broad tests which must be satisfied in a law enacted under s. 51(xxix). They are:
"1. Does the enactment of the law constitute an implementation by Australia of an obligation imposed on it by the Convention? Conversely, would Australia be in breach of an obligation imposed on it by the Convention, if it failed to enact the law or some law substantially to the same effect?
2. Does the subject-matter of the Convention to which the law gives effect in the manner in which it is treated, involve in some way a relationship with other countries or with persons or things outside Australia?
3. Is the subject-matter of the Convention to which the law gives effect, something which, although it relates to domestic activity, affects relations between Australia and another or other countries?"
The first of the three tests seeks to express the idea that it is the implementation of an obligation imposed on Australia by a treaty that attracts the external affairs power, that it is the treaty obligation and its implementation that constitutes the relevant subject or matter of external affairs. To my mind this is too narrow a view. As I pointed out in Koowarta, at pp. 648-650, the treaty itself is a matter of external affairs, as is its implementation by domestic legislation. The insistence in Burgess that the legislation carry into effect provisions of the Convention in accordance with the obligation which that Convention imposed on Australia is not inconsistent with what I have said, though it does raise a question as to the scope of the legislative power in its application to a treaty, a matter to be discussed later. At this point it is sufficient to say that there is no persuasive reason for thinking that the international character of the subject matter or the existence of international concern is confined to that part of a treaty which imposes an obligation on Australia. A provision in a treaty which is designed to secure to Australia a benefit may be just as much a matter of international concern, possessing an international character, with a potential to affect Australia's relationships with other countries, as a provision in a treaty which imposes an obligation upon Australia.
The recurring problem which the other tests pose is that of enunciating an instructive definition or description of the requisite subject matter or of the manner in which it is treated, one which will distinguish that which affects Australia's relations with other countries from that which does not. No doubt this problem might have been more readily answered in 1900 by reference to the world of international affairs as it stood at that time, a world devoid of international and regional institutions and agencies as we know them today, in which international discussion, negotiation, cooperation and agreement took place on a very limited scale in relation to limited subjects. But when we have regard to international affairs as they are conducted today, when the nations of the world are accustomed to discuss, negotiate, cooperate and agree on an ever widening range of topics, it is impossible to enunciate a criterion by which potential for international action can be identified from topics which lack this quality. Among the many instances of the common pursuit by nations of common objectives of a humanitarian, cultural and idealistic kind are the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Political Rights of Women, the Convention against Discrimination in Education, the Convention concerning Freedom of Association and Protection of the Right to Organize, the Convention concerning Discrimination in respect of Employment and Occupation and the Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, to all of which Australia has become a party. There are so many examples of the common pursuit of humanitarian, cultural and idealistic objectives that we cannot treat subjects of this kind as lacking the requisite international character to support a treaty or convention which will attract the exercise of the power. Indeed, the lesson to be learned from this experience is that there are virtually no limits to the topics which may hereafter become the subject of international cooperation and international treaties or conventions.
It is submitted that the suggested requirement that the subject matter must be "of international concern" means that it must be international in character in the sense that there is a mutuality of interest or benefit in the observance of the provisions of the convention. Thus, we are invited to say that a convention by which the contracting parties agree to enact domestic laws requiring persons in motor vehicles to wear seat belts does not deal with a matter of international concern because no nation can derive a benefit from the wearing of seat belts in another country. This is by no means self-evident. Drivers and passengers cross international boundaries. They are likely to observe in other countries the practices which they observe at home. International cooperation resulting in a convention insisting on compliance with uniform safety standards may well benefit all countries. The illustration is instructive because it demonstrates how difficult it is to say with accuracy of any treaty or convention that observance of its provisions will not benefit a contracting party.
The point is that if a topic becomes the subject of international cooperation or an international convention it is necessarily international in character - the existence of cooperation and the making of a convention establish that the subject matter is an appropriate vehicle for the creation of international relationships or, in the case of a bilateral treaty, a relationship between the parties to it. And participation in a convention indicates a judgment on the part of participating nations that they will derive a benefit from it. All this indicates an absence of any acceptable criteria or guidelines by which the Court can determine the "international character" of the subject matter of a treaty or convention. The existence of international character or international concern is established by entry by Australia into the convention or treaty.
In any event, as I observed in Koowarta, at p 651, the Court would undertake an invidious task if it were to decide whether the subject matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the Executive Government and Parliament. The fact of entry into, and of ratification of, an international convention, evidences the judgment of the Executive and of Parliament that the subject matter of the convention is of international character and concern and that its implementation will be a benefit to Australia. Whether the subject matter as dealt with by the convention is of international concern, whether it will yield, or is capable of yielding, a benefit to Australia, whether non-observance by Australia is likely to lead to adverse international action or reaction, are not questions on which the Court can readily arrive at an informed opinion. Essentially they are issues involving nice questions of sensitive judgment which should be left to the Executive Government for determination. The Court should accept and act upon the decision of the Executive Government and upon the expression of the will of Parliament in giving legislative ratification to the treaty or convention.
The argument in support of the three tests proposed by Tasmania is largely based on implications to be drawn from the federal nature of the Constitution, and on predictions that "the federal balance" will be disturbed, indeed shattered, if the validity of the Commonwealth legislation is upheld. Arguments of this kind played a prominent part in the Queensland case which was rejected in Koowarta and little is to be gained from repeating the answers which were given in that case.
In the argument which is presented in this case the expression "the federal balance" seems to mean, not so much the distribution of legislative powers effected by the Constitution, as the content, as it was understood in 1900, of the legislative powers thus distributed. The argument has a special relevance to s. 51(xxix). Koowarta makes the point that the content of the external affairs power has expanded greatly in recent times along with the increase in the number of international conventions and the extended range of matters with which they deal; see pp.645-646, 650. The same point had been made earlier by Latham C.J. in Burgess, at pp. 640-641. It is this development "that promises to give the Commonwealth an entree into new legislative fields"; see Koowarta, at p. 650. It is, of course, possible that the framers of the Constitution thought or assumed that the external affairs power would have a less extensive operation than this development has brought about and that Commonwealth legislation by way of implementation of treaty obligations would be infrequent and limited in scope. The framers of the Constitution would not have foreseen with any degree of precision, if at all, the expansion in international and regional affairs that has occurred since the turn of the century, in particular the cooperation between nations that has resulted in the formation of international and regional conventions. But it is not, and could not be, suggested that by reason of this circumstance the power should now be given an operation which conforms to expectations held in 1900. For one thing it is impossible to ascertain what those expectations may have been. For another the difference between those expectations and subsequent events as they have fallen out seems to have been a difference in the frequency and volume of external affairs rather than a difference in kind. Only if there was a difference in kind could we begin to construct an argument that the expression "external affairs" should receive a construction which differs from the meaning that it would receive according to ordinary principles and interpretation. Even then mere expectations held in 1900 could not form a satisfactory basis for departing from the natural interpretation of words used in the Constitution.
This in one sense is by way of preliminary observation, for the correct approach to the construction of a legislative power in its application to changing circumstances is well established. In Koowarta, after quoting the comment of Dixon J. in Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR 29 , at p. 81, where his Honour said -
". . . it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances. . .".
I said, at p. 650: "There is no reason at all for thinking that the legislative power conferred by s. 51(xxix) was intended to be less than appropriate and adequate to enable the Commonwealth to discharge Australia's responsibilities in international and regional affairs. . . . As the object of conferring the power was to equip the Commonwealth with comprehensive capacity to legislate with respect to external affairs, it is not to the point to say that such is the scope of external affairs in today's world that the content of the power given to the Commonwealth is greater than it was thought to be in 1900."
Accordingly, it conforms to established principle to say that s. 51(xxix) was framed as an enduring power in broad and general terms enabling the Parliament to legislate with respect to all aspects of Australia's participation in international affairs and of its relationship with other countries in a changing and developing world and in circumstances and situations that could not be easily foreseen in 1900. This circumstance is often overlooked by those who are preoccupied with the impact that the exercise of the power may have in areas of legislation traditionally regarded by the States as their own. The consequences to Australia resulting from an inadequate Commonwealth legislative power with respect to external affairs - which represents the price to be paid for the preservation to the States of these areas of legislation - were emphasized in Koowarta, at pp. 650-651, 656.
In the ultimate analysis the comprehensive legal answer to the general considerations which Tasmania invokes to sustain its approach to the interpretation of the constitutional power is that a grant of power in s 51 is to be construed with all the generality that the words used admit (Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. (1964), 113 CLR 207 , at pp. 225- 226) or, to put it more precisely and more accurately, as it was expressed by O'Connor J. in The Jumbunna Coal Mine, No Liability v. The 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."
This statement was recently adopted and applied as a correct expression of the principle by the Court in its unanimous judgment in Reg. v. Coldham; Ex parte the Australian Social Welfare Union (judgment delivered 9th June, 1983 - official pamphlet at pp. 15-16).
In accordance with this principle it is well settled that it is wrong to construe a constitutional power by reference to (1) an assumption that there is some content reserved to the States (In Re Foreman & Sons Pty. Ltd; Uther v. Federal Commissioner of Taxation (1947), 74 CLR 508 , at p. 530); and (2) imaginary abuses of legislative power (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (the Engineers' Case) (1920), 28 CLR 129 , at pp. 150- 151).
The only relevant implication that can be gleaned from the Constitution, and this is called in aid independently by Tasmania, is that the Commonwealth cannot in the exercise of its legislative powers enact a law which discriminates against or "singles out" a State or imposes some special burden or disability upon a State or inhibits or impairs the continued existence of a State or its capacity to function. This implied prohibition - for it is in truth an implied prohibition despite the endeavour of Barwick C.J. in Victoria v The Commonwealth (the Pay-roll Tax Case) (1971), 122 CLR 353 , at pp. 372- 373, to deal with it as a matter of characterization - has been recognized and discussed in many cases; see West v Commissioner of Taxation (NSW) (1937), 56 CLR 657 , at pp. 682-683, 698-699, 706-707; Essendon Corporation v Criterion Theatres Ltd (1947), 74 CLR 1 , at p. 19; Melbourne Corporation v The Commonwealth (1947), 74 CLR 31 , at pp. 55-60, 66, 70-75, 82-83; the Pay-roll Tax Case, esp. at pp. 386-393, 402-403, 406-411, 417-424; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982), 41 ALR 71 , at pp. 116-118; Koowarta, at pp. 645- 649; and Social Welfare Union, at pp. 14-15. The precise limits of the prohibition have not been formulated, as was noted by Walsh J., at p. 410, in the Pay-roll Tax Case, and by the Full Court in Social Welfare Union, at p. 15, and there is no need here to essay a more precise formulation, for the discussion of the principle as it applies in this case can be left until later. What is important for present purposes is that the implied prohibition reflects in point of expressed principle as much as can legitimately be extracted from the miscellany of considerations on which Tasmania relies. So much and no more can be distilled from the federal nature of the Constitution and ritual invocations of "the federal balance". As Social Welfare Union demonstrates, a head of power under s. 51 should be given its natural meaning; the exercise of the power is then subject to the express and implied prohibitions in the Constitution, including the implied prohibition enunciated in Melbourne Corporation. That the power conferred by s. 51(xxix) is subject to implied Constitutional prohibitions was generally recognized in Koowarta, esp. at pp. 645, 649.
No doubt the first of the three tests suggested by Tasmania is relevant in examining the question whether a particular law is a valid exercise of the power, but it cannot be right to say that only a law which implements an obligation imposed on Australia by a convention or treaty is such a valid exercise. Certainly, in the cases there are many statements to be found in which it is asserted that the power authorizes the implementation of an obligation imposed on Australia by a convention or treaty. However, speaking generally, these statements were made with reference to a treaty or convention that imposed obligations and they cannot reasonably be construed as expressing the negative, namely, that the exercise of the power is confined to the implementation of obligations. See, for example, the judgments of members of the Court in Burgess and Koowarta.
If the carrying out of, or the giving effect to, a treaty or convention to which Australia is a party is a matter of external affairs, and so much is now accepted, it is very difficult to see why a law made under s. 51(xxix), that is, a law with respect to the matter of external affairs, should be limited to the implementation of an obligation. To say this is to import an arbitrary limitation into the exercise of the power, one which might deprive Australia of the benefits which a treaty or convention seeks to secure. Take, for example, a treaty by which another country undertakes to provide technological and other benefits in connexion with a joint enterprise to be undertaken in this country between Australia and the other party to the treaty. Why would the power not extend to Commonwealth legislation facilitating the enjoyment by Australia of the benefits promised by the treaty and to facilitating the carrying on of the activities for which it makes provision? In Airlines of NSW Pty. Ltd. v. New South Wales (No. 2) (1965), 113 CLR 54 , Barwick C.J. said, at p. 86, that:
" . . . where a law is to be justified under the external affairs power by reference to the existence of a treaty or convention, the limits of the exercise of the power will be set by the terms of that treaty or convention, that is to say, the Commonwealth will be limited to making laws to perform the obligations, or to secure the benefits which the treaty imposes or confers on Australia. Whilst the choice of the legislative means by which the treaty or convention shall be implemented is for the legislative authority, it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to that end."
The same view was expressed by Starke J. and Evatt and McTiernan JJ. in Burgess, at pp. 658, 688, and Menzies J. in Airlines of NSW (No. 2) at p. 141. In my opinion it is correct; see also Koowarta, at pp. 652, 664.
It is significant that this view of Parliament's power to legislate so as to give effect to a treaty conforms to the approach which this Court has adopted in deciding whether legislative controls designed to achieve an end within power are themselves within power. In Herald and Weekly Times Ltd. v. The Commonwealth (1966), 115 CLR 418 it was argued that the legislative controls went beyond what was necessary to ensure freedom of competition between television services. The Court's response to the argument was delivered by Kitto J., at p. 437, in these terms:
"It may be conceded that in some of the cases to which they apply, the described situations will often, or even generally, afford no foothold at all for an exertion of influence. Yet it is impossible, in my opinion, to avoid the conclusion, even upon consideration of the most extreme illustrations of the working of the provisions, that together they form a means, and are enacted as a means, for effectuating a desired end which is within power, namely that of ensuring freedom of competition between television services. How far they should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack."
Whether failure on the part of Australia to enact domestic legislation incorporating the rules in the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental Shelf as part of our domestic law would have amounted to a contravention of those Conventions is not altogether clear. The Conventions did not impose an obligation in specific terms to enact domestic legislation of a particular kind. Nonetheless the validity of the Seas and Submerged Lands Act 1973 (Cth) which gave effect to these Conventions was upheld in New South Wales v. The Commonwealth (the Seas and Submerged Lands Case) (1975) 135, CLR 337. It may be said that the legislation was valid because it gave effect to the principles of customary international law as declared by the Conventions. But if Australia became a party to a convention which enacted a new set of rules in relation to the territorial sea and the contiguous zone, but that convention did not attract sufficient support to constitute its provisions as principles of customary international law, domestic legislation giving effect to it would none the less still constitute a valid exercise of the power.
The extent of the Parliament's power to legislate so as to carry into effect a treaty will, of course, depend on the nature of the particular treaty, whether its provisions are declaratory of international law, whether they impose obligations or provide benefits and, if so, what the nature of these obligations or benefits are, and whether they are specific or general or involve significant elements of discretion and value judgment on the part of the contracting parties. I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject matter of the treaty as if that subject matter were a new and independent head of Commonwealth legislative power. The law must conform to the treaty and carry its provisions into effect. The fact that the power may extend to the subject matter of the treaty before it is made or adopted by Australia, because the subject matter has become a matter of international concern to Australia, does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or is inconsistent with it.
The Convention for the Protection of the World Cultural and Natural Heritage
Do the provisions of Pt. II of the Convention, which is headed "National Protection and International Protection of the Cultural and Natural Heritage", impose an obligation on Australia to protect the area which has been entered on the World Heritage List and, if so, what kind of obligation? It is by no means an easy question to answer and the difficulties are not diminished by the continuous debate and discussion as to the concept of obligation in International Law and as to the nature of obligations created by treaties - see, for example, Fawcett, "The Legal Character of International Fawcett, "The Legal Character of International Agreements" (1953), 30 British Year Book of International Law 381; Widdows, "What is an Agreement in International Law?" (1979), 50 British Year Book of International Law 117.
Much emphasis has been given to features in the form of expression of Arts. 4-6 which are said to support the view that the Convention stopped short of imposing an actual obligation on a party to protect its heritage. The word "undertakes" which is apt to create such an obligation is conspicuous by its absence from Arts. 4 and 5. Its absence in these articles is to be contrasted with its presence in Arts. 6.2 and 6.3. By Art. 6.2, each party undertakes to give its help in identification, protection, conservation and preservation of a property on the World Heritage List or on the World Heritage in Danger List at the request of the State in which it is situated. By Art. 6.3, each party undertakes not to take any deliberate measures which might damage the cultural and natural heritage of another State.
On the other hand, Art. 4, which speaks of the duty of each State to ensure "the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage . . . situated on its territory", is expressed in more qualified terms. It then deals with the scope of this duty by saving of each State that "it will do all it can to this end", adding the qualification "to the utmost of its own resources". Then Art. 5, which is more specific in its subject matter, is expressed in terms of "endeavour", the scope and content of this requirement being alleviated and modified by the words "in so far as possible, and as appropriate for each country". In par. (d) of the same article, which refers to the taking of "appropriate legal" and other measures for the protection, conservation, etc. of the heritage, there may be an element of discretion and value judgment on the part of the State to decide what measures are necessary and appropriate. Article 6 acknowledges the sovereignty of the States in whose territory the heritage is situated and is expressed "without prejudice" to "property rights provided by national legislation".
Despite these features it seems to me that Art. 5 itself imposes a series of obligations on parties to the Convention, one of which is the obligation dealt with in par. (d) which includes the taking of legal measures. The imposition of this obligation is an element in a general framework which has as its foundation (a) the responsibility of each State under Art. 3 to identify and delineate the different properties situated in its territory which answer the descriptions of "cultural heritage" in Art. 1 and "natural heritage" in Art. 2; and (b) the first sentence in Art. 4 which amounts to a recognition of the general or universal responsibility for the protection, preservation, etc. of the heritage and a declaration that it "belongs primarily to" the State in which the heritage is situated. The sentence which follows is a strong and positive declaration of what each State will do in the discharge of the responsibility affirmed by the first sentence.
Article 5 then goes further. What it does is to impose obligations on each State with the object set out in the opening words of the article "to ensure that effective and active measures are taken for the protection, conservation" etc. of the heritage in the discharge of the responsibility acknowledged by Art. 4. Article 5 cannot be read as a mere statement of intention. It is expressed in the form of a command requiring each party to endeavour to bring about the matters dealt with in the lettered paragraphs. Indeed, there would be little point in adding the qualifications "in so far as possible" and "as appropriate for each country" unless the article imposed an obligation. The first qualification means "in so far as is practicable" and the second takes account of the difference in legal systems. Neither of these qualifications nor the existence of an element of discretion and value judgment in par. (d) is inconsistent with the existence of an obligation. There is a distinction between a discretion as to the manner of performance and a discretion as to performance or non-performance. The latter, but not the former, is inconsistent with a binding obligation to perform (see Thorby v. Goldberg (1964), 112 CLR 597 , at pp. 604-605, 613, 614- 615). And it is only natural that in framing a command to States to take measures of the kind described in par. (d) in relation to their heritage the command will be expressed in terms of endeavour, subject to the qualifications mentioned.
Neither the recognition of the sovereignty of the States in whose territory the heritage is situated nor the reference to property rights in Art. 6.1 puts a different complexion on Art. 5. The expression "without prejudice to property rights provided by national legislation" is a reference to domestic laws - in the case of Australia, both Commonwealth and State. It provides some safeguard for such existing and future rights in property forming part of the world heritage as a nation state may choose to protect, acknowledge, or create. But the operative provision in Art. 6.1 emphasizes the existence of a duty. It recognizes that there is a "duty" on the part of "the international community as a whole to cooperate" in protecting the world heritage. The recognition of this duty is consistent only with the existence of an obligation on the part of a State party to the Convention to protect the heritage in its territory and it is significant that Art. 34, the federal clause, proceeds on the footing that the Convention imposes obligation. It is not to be supposed that the obligations to which the clause refers are those mentioned in Arts. 6.2 and 6.3 to the exclusion of the provisions in Arts. 4 and 5.
Another circumstance of significance is that on 16th November, 1972, UNESCO adopted a resolution as well as the Convention. The resolution was in the form of recommendations for the protection of the cultural and natural heritage of nations not forming part of the world heritage. It seems that UNESCO considered that, although recommendations were appropriate to this subject matter, the imposition of obligations resulting from adherence to a convention were appropriate to the world heritage.
In arriving at the conclusion that Pt. II of the Convention, in particular Arts. 4 and 5, imposes binding obligations on Australia, I have not found the travaux preparatoires to be of assistance. They do not contain anything that is sufficiently definite to displace the natural construction of the language of the Convention.
Part III of the Convention deals with the "Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage". It established the World Heritage Committee (Art. 8.1) whose function it is to establish, keep up-to-date and publish (a) the World Heritage List, a list of properties forming part of the cultural and natural heritage as defined in Arts. 1 and 2, which it considers as having outstanding universal value, and (b) the World Heritage in Danger List, a list of property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under the Convention. The World Heritage List is established from inventories submitted by each State a party to the Convention, each State being required by Art. 11, in so far as possible, to submit to the Committee an inventory of property forming part of the cultural and natural heritage situated in its territory and suitable for inclusion in the List. Inclusion of a property in the World Heritage List requires the consent of each State concerned (Art.11.3). This provision does not detract from the obligation imposed by Art.11.1 on a State to submit an inventory of property to the Committee. But it does prevent a State from placing a property in another State on the World Heritage List in cases of disputed sovereignty or jurisdiction.
Another function of the Committee is to deal with requests for international assistance with respect to properties forming part of the cultural or natural heritage included, or potentially suitable for inclusion, in the lists. The purpose of such requests may be to secure the protection, conservation, presentation or rehabilitation of such property (Art.13.1).
Part IV establishes the World Heritage Fund to which States, parties to the Convention, contribute, The Committee decides on the use of the resources of the Fund (Art.13.6).
The effect of entry of a property in the World Heritage List is (1) that it qualifies the property for entry in the World Heritage in Danger List; and (2) it enhances the prospects of the State in which the property is situated of securing international assistance pursuant to the Convention (see Arts. 13,14,20 and 22).
The Convention, to which seventy-four nations have acceded, reflects a vigorous endeavour on the part of the community of nations, under the auspices of the United Nations, to take common action in the pursuit of a common objective essential to the welfare of mankind - the preservation and conservation of the world heritage. That the attainment of this objective is of international interest and concern is evidenced by the formulation of the Convention under the auspices of the United Nations and its adoption by so many nations. That the subject matter is international in character and appropriate for international action is self-evident. By what other means, one might ask, could the objective be realistically achieved? No doubt, in the end, the success of the enterprise will largely depend on the extent to which each nation discharges its primary responsibility for preserving the heritage in its territory, but the formulation of the Convention, its adoption by so many nations resulting in cooperative international action and the assumption by the parties to it of obligations to preserve the heritage will enhance the likelihood of a party discharging its primary responsibility. The real benefit which Australia gains in common with other nations is the preservation of the world heritage. This benefit apart from any other obviously warrants participation by Australia in the Convention and entry by Australia of suitable properties situated in Australia in the World Heritage List.
Article 34 of the Convention, the federal clause, does not relieve Australia from performance of its obligations under the Convention. Paragraph (a) of the article makes it clear that in the case of a central legislative power possessing legal jurisdiction to implement the provisions of the Convention, the State party to the Convention has an obligation to implement the provisions of the Convention. It is otherwise where the central legislative power has no jurisdiction to implement the provisions. Then the obligation of the State party to the Convention is to inform the constituent organs in the federation and make recommendations for adoption of the provisions. The existence of the power conferred by s 51(xxix) has the consequence that par.(a) of Art.34 imposes an obligation on the Commonwealth of Australia to implement the provisions of the Convention by legislation enacted by the Commonwealth Parliament.
Validity of the National Parks and Wildlife Conservation Act 1975 (Cth) Section 69
It follows from what has been said that s 51(xxix) confers legislative power on the Commonwealth Parliament to implement and give effect to the provisions of the Convention. Section 69, in authorizing the Governor-General to make regulations for and in relation to giving effect to the Convention, is a valid exercise of this power. The power conferred by the section is subject to prohibitions express and implied in the Constitution, with the result that Tasmania's argument based on the Melbourne Corporation principle and the acquisition power are relevant to the validity of the regulations and fall to be considered in that context.
Validity of the World Heritage (Western Tasmania Wilderness) Regulations 1983 made under the National Parks and Wildlife Conservation Act 1975
The first question, one of statutory construction, is whether s 69 of the Act merely authorizes the making of regulations which will bring a property placed on the World Heritage List within the regime of parks and reserves for which Pt.II of the Act makes provision. The object of the Act, as its short title announces, is "to make provision for and in relation to the Establishment of National Parks and other Parks and Reserves and the Protection and Conservation of Wildlife." The object of Pt.II of the Act, which deals with "Parks and Reserves", is to make provision for the establishment and management of parks and reserves in various areas and for a variety of purposes mentioned in s 6(1), one of which is stated in par.(e) of the subsection in this way:
"(e) for facilitating the carrying out by Australia of obligations under, or the exercise by Australia of rights under, agreements between Australia and other countries;. . ."
The subsection concludes with the words "and this Act shall be administered accordingly". Apart from s. 6(1)(e) and s. 69, the Act contains no provisions dealing with the carrying into effect of international conventions.
I do not agree that all this leads to the conclusion that s 69 merely authorizes regulations which make provision for matters within the scope of Pt.II of the Act. Section 69 is expressed as an independent regulation making power. It appears among the miscellaneous provisions of Pt. VII of the Act, provisions which have a general application, and it bears the heading "International agreements". It is separate from the general regulation making power which is contained in s 71 of the Act. That power enables the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
One objection to the narrow construction of s 69 is that it achieves nothing that is not achieved by s 71(1) in enabling regulations to be made prescribing "all matters . . . convenient to be prescribed for carrying out or giving effect to this Act". That subsection is wide enough to confer power to carry into effect all the agreements specified in the Schedule to the Act in relation to parks and reserves in Pt.II. Another objection is that the narrow construction simply does not give effect to the broad and general words of s 69(1) and the indication provided by s 69(3) that the regulation making power conferred by s 69(1) is in addition to that conferred by s 71. Indeed, one of the conventions mentioned in the Schedule, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, could not be carried into effect by regulations relating to parks and reserves under Pt. II.
The World Heritage (Western Tasmania Wilderness) Regulations apply to an area of 14,125 hectares. This area comprises the site of the dam and associated works and the major part of the water storage area behind the dam. The area of 14,125 hectares is but a small part of the total area of the property, 769,355 hectares, which has been entered in the World Heritage List. Regulation 5(1), in its amended form, prohibits the doing of various acts without the consent of the federal Minister. The acts prohibited range from (a) the construction of a dam and associated works and acts done for this purpose, and (b) excavation works, to (d) killing, cutting down, damaging or removing trees, and (g) carrying out any other works. Regulation 5(2) prohibits a person without the consent of the federal Minister from doing any act, not being an act referred to in Reg.5(1), that is likely to adversely affect the conservation or preservation of the area as part of the world cultural or natural heritage.
The first question is whether these provisions do more than give effect to the Convention. If they do they exceed the regulation making power as authorized by s 69 of the Act and the Constitution. The legislative prohibition of acts inimical to the preservation and conservation of the property as a property forming part of the world cultural and natural heritage is not only consistent with the provisions of the Convention but is also a discharge of Australia's obligation under Art.5 of the Convention. It is obvious that the prohibition in Reg.5(1) extends to many acts which in themselves may do no harm at all to the unique or exceptional qualities of the property which have led to its forming part of the world cultural and natural heritage, for example, cutting down, damaging or removing a tree. It is equally obvious that Regs.5(1) and (2) prohibit development within the area without the consent of the federal Minister and thereby deny to Tasmania effective control over development. In practice it will be the federal Minister who, by virtue of his power of veto, will decide what development is to be permitted within the area. Of course, Tasmania may legislate to prohibit any development, even development to which the federal Minister has consented, but this is of little practical significance if the Minister's power of veto is valid.
Although the reach of the prohibitions contained in the regulations is wide and the impact on Tasmania's capacity to control development is severe, it does not follow that Regs. 5(1) and (2) go beyond implementation of the provisions of the Convention. Implementation of the Convention, and of the obligation which it imposes on Australia in relation to the property, calls for the establishment of a regime of control which will ensure protection and conservation of the property. No doubt there are a variety of methods of control which will achieve this result. But it is not for the Court to choose between them, or to prefer one to another. The only question is whether the legislative provisions are appropriate and adapted to the desired end, to take up the words of Barwick C.J. in Airlines of NSW (No 2) at p 86. The answer to this question is that the prohibition, by forbidding the acts described without the consent of the federal Minister, is directed to the protection and conservation of the area. To repeat the words of Kitto J. in Herald and Weekly Times, at p 437,". . . it is impossible . . . to avoid the conclusion, even upon consideration of the most extreme illustrations of the working of the provisions, that together they form a means, and are enacted as a means, for effectuating a desired end which is within power . . ." - the protection and conservation of property which has been entered in the World Heritage List. That the effect of the regulations is to prevent any development is entirely consistent with the protection and conservation of a wilderness area. Indeed, it is not suggested that the regime of control imposed by the regulations has an ultimate object divorced from implementation of the Convention.
The next question is whether the effect of the regulations is to infringe the implied prohibition forbidding the Commonwealth from imposing some special burden or disability upon a State or from inhibiting or impairing the continued existence of a State or its capacity to function, a prohibition which has been discussed earlier in this judgment. Mr. Ellicott, Q.C., submits, in my view correctly, that in order to come within the prohibition it is not necessary to show that the law discriminates against a State, though discrimination in itself will attract the principle. It is enough that the Commonwealth law inhibits or impairs the continued existence of a State or its capacity to function. It is then suggested that the prohibition strikes down a Commonwealth law which inhibits, impairs or curtails any governmental function of a State in a material way. But this is to rewrite the principle. What it does is to prohibit impairment of the capacity of the State to function as a government, rather than to prohibit interference with or impairment of any function which a State government undertakes. As Stephen J. pointed out in Koowarta, at p 645, the implication is derived from the federal nature of the Constitution and it is designed "to protect the structural integrity of the State components of the federal framework, State legislatures and State executives".
To fall foul of the prohibition, in so far as it relates to the capacity of a State to govern, it is not enough that Commonwealth law adversely affects the State in the exercise of some governmental function as, for instance, by affecting the State in the exercise of a prerogative. Instead, it must emerge that there is a substantial interference with the State's capacity to govern, an interference which will threaten or endanger the continued functioning of the State as an essential constituent element in the federal system. The same idea was expressed by Gibbs J. in the Pay roll Tax Case at p 424, when he said: "A general law of the Commonwealth which would prevent a State from continuing to exist and function as such would in my opinion be invalid."
It has been affirmatively established by the course of decisions in this Court that the prerogatives of the Crown in right of the State can be adversely affected by Commonwealth laws enacted under 52 of the Constitution. In the Commonwealth v. New South Wales (the Royal Metals Case) (1923) s 51(xxxi) could terminate the prerogative rights in respect of royal metals possessed by the States, provided that the law complied with the requirements of s 51(xxxi). See Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd. (1940), 63 CLR 278 , at pp. 322-323, where Evatt J. pointed out that the prerogative of preference enjoyed by the Crown in right of the State could be destroyed by the valid Commonwealth legislation on the subject of "bankruptcy and insolvency". Dixon J. expressed a similar view, at pp. 313-314, though distinguishing an exercise of the taxation power, at pp. 316-317. In In re Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation (1947), 74 CLR 508 , at p 529, Dixon J. expressed the same view in his dissenting judgment, a judgment which was later vindicated in The Commonwealth v. Cigamatic Pty. Ltd. (In Liquidation) (1962), 108 CLR 372 ; see now Bank of New South Wales v. Federal Commissioner of Taxation (1979), 145 CLR 438 . In the meantime, The State of Victoria v. The Commonwealth (1957), s. 221(1)(b)(i) and (ii) of the Income Tax and Social Services Contribution Assessment Act 1936-1956 (Cth) was a valid exercise of the "bankruptcy and insolvency" power. The relevant provision gave priority to the Commonwealth in payment of income tax by a trustee in bankruptcy and the liquidator of a company; see pp. 611-612, 624, 658.
All this supports the view which I expressed in State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982), 41 ALR 71 , at p. 117, when I said:
"Although the grant of legislative powers to the Commonwealth Parliament in s. 51 is prefaced by the words 'subject to this Constitution', there is nothing elsewhere in the Constitution which subordinates the exercise of these powers to the prerogatives of the Crown in right of the States. Elsewhere the emphasis, as in s. 109, is on the supremacy throughout the Commonwealth of all laws validly made under the Constitution. 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."
The State prerogative in relation to wastelands of the Crown is a matter of considerable importance. Its history in Australia was discussed by Stephen J. in the Seas & Submerged Lands Case, at pp. 438-441. There is, as the Royal Metals Case shows, no reason for thinking that it stands immune from the operation of Commonwealth laws enacted under s. 51. Nor is there any solid ground for distinguishing s. 51(xxix) from the other legislative powers in their application to State prerogatives. The special problem which Dixon J. thought arose in the case of the taxation power - whether the power extended to defeating the equal priority of the State claim for payment of its debt - has no relevance to the external affairs power.
It is perhaps possible that in some exceptional situations if the area of land affected by Commonwealth prohibitions similar to those imposed by Reg. 5 forms a very large proportion of the State, the imposition of the prohibitions would attract the Melbourne Corporation principle. But this is certainly not the case here, where the regulations affect 14,125 hectares only.
The questions asked in relation to the regulations do not include the question whether the regulations bring about an acquisition of property, a question which arises in connexion with the provisions of the World Heritage Properties Conservation Act 1983. But it is appropriate to say here that for reasons to be given in connexion with the operation of that Act, the regulations do not bring about an acquisition of property.
In the result, in my view, the regulations are valid and their validity does not depend upon a determination of any of the disputed allegations of fact.
Validity of World Heritage Properties Conservation Act 1983 (Cth) and associated provisions
By virtue of five proclamations made under s. 6(3) gazetted on 26th May, 1983, s. 9 applies to the Franklin-Lower Gordon Wild Rivers National Park, an area of 14,905 hectares, Kutikina Cave and Deena Reena Cave and an open archaeological site. Section 6(3) provides that where the Governor-General is satisfied that any property in respect of which a proclamation may be made under the subsection is being or is likely to be damaged or destroyed, he may, by proclamation, declare that property to be property to which s. 9 applies. A proclamation made under s. 6(3) in relation to property in a State must relate to "identified property" and to property to which one or more of the paragraphs in Section 3(2) provides that a reference to "identified property" shall be read as a reference to (a) property forming part of the cultural or natural heritage being property that (i) the Commonwealth has submitted to the World Heritage Committee as suitable for inclusion in the World Heritage List; or (ii) has been declared by the regulations to form part of the cultural heritage or natural heritage; or (b) any part of property referred to in par. (a). Whether par. (a)(ii) and the corresponding part of par. (b) of s. 3(2) is valid is open to question.
Section 9(1) is substantially similar to Reg. 5(1) of the World Heritage (Western Tasmania Wilderness) Regulations. The principal difference is that the subsection does not specifically refer to the construction of a dam and associated works. However, s. 9(1)(h) prohibits without the written consent of the federal Minister the doing of a prescribed act in relation to particular property to which the section applies. Regulation 4(2) of the World Heritage Properties Conservation Regulations 1983, as amended, prescribes the construction of the dam and preparatory and associated works. Regulation 4(1) defines the relevant property as the part of the cultural area within the excised area, Kutikina Cave and Deena Reena Cave and the open archaeological site. Section 9(2) is a counterpart to Reg. 5(2), except that, instead of prohibiting without written consent any other act that is likely to adversely affect the protection or conservation of the area as part of the world heritage, it prohibits without the written consent of the federal Minister any other act that damages or destroys any property to which the section applies.
Section 3(2) creates a problem by including a reference to any part of property referred to in par. (a) of the description of "identified property". It raises in an acute form the question whether damage to a part of an entire property threatens or endangers the unique or exceptional characteristics of the entire property which qualify it as part of the world cultural and natural heritage. As I have noted in relation to Reg. 5, damage to part of the property does not necessarily threaten the characteristics of the entire property which qualify it as part of the world heritage. The issue is whether a regime of control which entails prohibition, subject to written consent, against damage to any part of the property is appropriate and adapted to the desired end.
In this respect s 13(1) is important. The reference to "property" at the end of the subsection is a reference to the particular property which constitutes part of the world heritage, as the mention of the Convention makes plain. Consequently, in deciding whether consent is to be given, the Minister shall have regard only to the protection, conservation and presentation of that property. This may mean that the Minister is bound to refuse consent when (a) the applicant fails to satisfy the Minister that a proposed activity or development is consistent with the "protection, conservation and presentation" of the property: or (b) the Minister's mind is evenly balanced on that issue.
The scope of the Minister's discretion in s 13(1) is therefore narrower than the discretion to grant or refuse consent in Regs. 5(1) and (2) of the World Heritage (Western Tasmania Wilderness) Regulations which enables the Minister to take into account and balance considerations which compete against the protection and conservation of the property. The difference, Tasmania submits, is critical because it means that s. 13(1) does not give effect to the concept of what is "appropriate" within the meaning of Art. 5(d) of the Convention because the subsection unduly confines the ambit of the Minister's discretion.
However, the matters which I have mentioned, in particular those affecting 13(1), do not lead me to the conclusion that the regime of control for which 13(1) provide is less than appropriate and adapted to the protection, conservation and presentation of the property to which the prohibitions relate. As I have already noted, the reference to "appropriate . . . measures" in Art. 5(d) leaves some element of judgment to the State party to the Convention in respect of the particular measures that are appropriate. Section 13(1) is an expression of the judgment made by Parliament in respect of the regime of control which it regards as "appropriate". The discretion which it confers on the Minister gives emphasis to the protection, conservation and presentation of the property. As such, it is the central element in a regime of control which is reasonable and falls well within the area of judgment left to Australia by Art. 5(d) of the Convention.
Although the area affected by the prohibitions is much larger than that affected by Reg. 5, this is not enough to bring the section within the Melbourne Corporation principle.
In expressing this conclusion I proceed on the footing that s. 6(2)(b) is valid. I do not find it necessary to explore the validity of the other paragraphs in s. 6(2). Paragraph (b) is plainly severable and would be unaffected by the invalidity of the other paragraphs, should they be invalid.
At this point it is convenient to deal with the argument that 10, 17 effect an acquisition of property otherwise than on just terms. Tasmania's submission is that, although the Act does not attempt to divest title from the State to the Commonwealth, it so restricts the rights of the State with respect to its waste lands and confers such rights on the federal Minister with respect to those lands that there has been an acquisition of property. Mr Ellicott, Q.C., points to the distinction between "taking" property and "regulation" of property which has been developed in the United States, a distinction which was discussed by Stephen J. in Trade Practices Commission v. Tooth & Co. Ltd. (1979), 142 CLR 397 , at pp. 413-415.
The proposition, supported by the judgments of Holmes J. and Brandeis J., in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, at pp. 415, 417 (67 Law Ed. 322, at pp. 326-327), is that a restriction on the use of property deprives the owner of some right previously enjoyed and is therefore an abridgment of rights in property without making compensation. The consequence is that if the regulation of property goes too far it is a "taking". Corpus Juris Secundum (1965), vol. 29A, "Eminent Domain" c 6 states:
"There is no set formula to determine where regulation ends and taking begins; so, the question depends on the particular facts and the necessities of each case, and the court must consider the extent of the public interest to be protected and the extent of regulation essential to protect that interest."
The decisions of the United States Supreme Court have no direct relevance to the Constitution. Many of them turn on the Fifth Amendment which is made applicable to the states by the Fourteenth Amendment; see, for example, Penn Central Transportation Co. v. New York City (1978), 438 U.S. 104 (57 Law Ed. 2d 631), in which Pennsylvania Coal was explained on the footing that a state statute that substantially furthers important public policies may so frustrate distinct investment backed expectations as to amount to a "taking". The relevant provision in the Fifth Amendment is ". . . nor shall private property be taken for public use, without just compensation". It seems that the Supreme Court has proceeded according to the view that the object of the clause is to prevent government from forcing some people alone to bear public burdens which should be undertaken by the entire public. (Armstrong v. United States (1960), 364 U.S. 40 (4 Law Ed. 2d 1554); National Board of Young Mens Christian Assns. v. United States (1969), 395 U.S. 85 (23 Law Ed. 2d 117);Penn Central).
The emphasis in s 51 (xxxi) is not on a "taking" of private property but on the acquisition of property for purposes of the Commonwealth. To bring the Constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be. The effect of s 51(xxxi) was correctly stated by Dixon J. in Bank of NSW v. The Commonwealth (the Banks Case)(1948), 76 CLR 1 , at p 349:
"I take Minister of State for the Army v. Dalziel ((1944), 68 CLR 261 ) to mean that s 51(xxxi.) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property. Section 51(xxxi.) serves a double purpose. It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State, affected with a protection against governmental interferences with his proprietary rights without just recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect."
See also Minister of State for the Army v. Dalziel ((1944), 68 CLR 261 , at pp. 276-277, 284-286, 290-291,299-300).
The effect of 11, is to prevent any development of the property in question, subject to the Minister's consent, so as to preserve its character as a wilderness area. Section 13(1), which compels the Minister to have regard only to the protection, conservation and presentation of the property, applies only to consents under s 9. In terms of its potential for use, the property is sterilized, in much the same way as a park which is dedicated to public purposes or vested in trustees for public purposes, subject, of course, to such use or development as may attract the consent of the Minister. In this sense, the property is "dedicated" or devoted to uses, that is, protection and conservation which, by virtue of Australia's adoption of the Convention and the legislation, have become purposes of the Commonwealth. However, what is important in the present context is that neither the Commonwealth nor anyone else acquires by virtue of the legislation a proprietary interest of any kind in the property. The power of the Minister to refuse consent under the section is merely a power of veto. He cannot positively authorize the doing of acts on the property. As the State remains in all respects the owner, the consent of the Minister does not overcome or override an absence of consent by the State in its capacity as owner. The fact that the Minister has a power of veto of any development of or activity on the property does not amount to a vesting of possession in the Commonwealth. Significantly, the Act contains no provision dealing with possession.
There being to my mind no acquisition of property, I have no need to consider whether s. 17 provides for just terms. However, it is necessary to consider whether the Act infringes the Constitution. Examination of this can be deferred for the moment.
Validity of World Heritage Properties Conservation Act 1983
Section 10 relies on the corporations power (s. 51(xx)) in its application to foreign corporations and trading corporations and on the territories power (s. 122) in its application to corporations incorporated in a territory. By virtue of the three proclamations made under s. 7 gazetted on 26th May, 1983, s. 10 applies to that part of the Franklin area that is within the natural area, that part of the cultural area that is within the excised area and Kutikina Cave and Deena Reena Cave. Section 7 contains no counterpart to s. 6(2).
The acts prohibited without the consent of the Minister by s. 10(2) and (3) are those prohibited by s. 9(1) and (2). The question then is whether the corporations power extends to the regulation of the activities of trading corporations, not being trading activities. The Hydro-Electric Commission contends that it does not, relying principally on statements culled from the judgments in Huddart, Parker & Co. Proprietary Ltd. v. Moorehead (1908), 8 CLR 330 , a decision which was overruled in Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 CLR 468 . On the other hand, the Commonwealth contends that the power extends to authorize laws about the activities of trading corporations which are not restricted to their trading activities and that the power includes power to make laws with respect to conduct undertaken for the purpose of a trading corporation's trading activities.
It is an unrewarding exercise to review all that was said in Huddart, Parker about the scope of the power. The judgment of Barwick C.J. in Rocla Pipes is a complete refutation of the decision in Huddart, Parker and of the reasoning on which it was based. With the exception of Isaacs J. the members of the Court conceded a very restricted operation to the power. This was because they subscribed to grave constitutional heresies, notably the doctrine of reserve powers, which have long since been denounced; see, for example, the judgment of Griffith C.J., at pp. 348 et seq. The doctrine supported the erroneous view that s. 51(xx) could not subtract from a State's power over its own internal trade. Although Higgins J. did not subscribe to the doctrine, he thought that the heads of Commonwealth legislative power were mutually exclusive - another deviation from the true faith - and this seems to have led him to the notion that the internal trade of a State is "forbidden to the Federal Parliament" unless the other heads of power clearly authorize an intrusion into that forbidden area; (at pp. 415-416). Even so, his Honour considered that s. 51(xx) authorized a law regulation corporations as corporations; p. 412. And Isaacs J. said, at p. 395, that the power "entrusts to the Commonwealth Parliament a regulation of the conduct of the corporations in their transactions with or affecting the public", although he thought that it did not extend to internal management. So much for Huddart, Parker.
Discussion of the topic in the Banks Case was just as inconclusive. Rich and Williams JJ., at pp. 255-256 treated the power as one which authorized laws with respect to the conditions, subject to performance of which, the corporations mentioned should be entitled to carry on business in Australia. Starke J., after noting the views of Isaacs and Higgins JJ. in Huddart, Parker, said, at p. 304, that the power "is an independent power complete in itself" which:
". . . authorizes the Commonwealth to govern and regulate the operation of these companies but would not authorize the suppression of all such corporations or the nationalization of their activities. Thus, the carrying on (of) business in Australia by these corporations might be prohibited absolutely or except upon certain conditions and the exercise of their powers in Australia might be regulated and so forth."
Latham C.J. did not commit himself to an interpretation of the power, though he quoted the extreme examples given by Higgins J. in Huddart, Parker, at pp. 409-410, of the consequences which would follow if the power extended to a prohibition or regulation of anything a corporation might do.
Since then it has been affirmatively established that the power extends to the regulation and the protection of the trading activities of trading corporations; Rocla Pipes, esp. at pp. 489-491, 511, 525; Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982), 40 ALR 609 , at pp. 617, 624-627, 634-635, 640, 645; Fencott v Muller (judgment delivered 28th April, 1983 - official pamphlet p. 24). Whether the power goes further remains to be decided. Barwick C.J., Murphy, Brennan JJ. and I have indicated that it does; Rocla Pipes, at p. 490; Fontana, at pp. 636-637, 640, 645- 646. It would be unduly restrictive to confine the power to the regulation and protection of the trading activities of trading corporations. After all, the subject matter of the power is persons, not activities. The suggested restriction might possibly deny to Parliament power to regulate borrowing by trading corporations, notwithstanding that there is much to be said for the view that one of the objects of s. 51(xx) was to enable Parliament to regulate transactions between the categories of corporation mentioned and the public, indeed to enable Parliament to protect the public, should the need arise, in relation to the operations of such corporations.
There is, certainly, no sound reason for denying that the power should extend to the regulation of acts undertaken by trading corporations for the purpose of engaging in their trading activities. I do not understand Mr. Merralls, Q.C., to deny that in some instances at least the power extends that far.
There is more to be said for the view that the scope of the power is to be ascertained by reference to those matters, whatever they may be, as are relevant to the trading character of a trading corporation. Thus, it might be said that the power extends to, but does not travel beyond, such aspects of a trading corporation's structure, business and affairs, as have relevance to its character as a trading corporation. This view of the power would, if accepted, enable Parliament to enact legislation regulating (and prohibiting) acts and activities engaged in by a trading corporation for the purpose of engaging in its trading activities.
However, it seems to me that there are three powerful objections to the adoption of this limited construction. The first is that this approach to the scope of the power in its application to the classes of corporations mentioned, though it has some plausibility in the case of trading corporations, has none at all in the case of financial and foreign corporations. It can scarcely have been intended that the scope of the power was to be limited by reference to the foreign aspects of foreign corporations and the financial aspects of financial corporations. And it would be irrational to conclude that the power is plenary in the case of those corporations, but limited in the case of trading corporations.
The second objection is that the interpretation fails to give effect to the principle that a legislative power conferred by the Constitution should be liberally construed. And the final objection is that a power to make laws with respect to corporations (of designated categories), as in the case of a power with respect to natural persons, would seem naturally to extend to their acts and activities. In Koowarta Stephen J., when referring to the power conferred by s. 51(xxvi) with respect to the people of any race, said, at p. 642, that "the content of the laws which may be made under it are left very much at large" and that "they may be directed to any aspect of human activity".
There is nothing in the context of s. 51(xx) which compels the conclusion that the language in which the power is expressed should be given a restricted interpretation. In this respect I mention, without repeating, what I said in Fontana, at pp. 636-637. In the result we should recognize that the power confers a plenary power with respect to the categories of corporation mentioned.
It is of some interest to note that Griffiths C.J. in Huddart, Parker made it clear that, but for the doctrine of reserved powers, this is the interpretation of s. 51(xx) to which he would have been compelled. He said, at p. 348:
"The Commonwealth Parliament can make any laws it thinks fit with regard to the operation of the corporation, for example, (it) may prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them. In short, any law in the form 'No trading or financial corporation formed within the Commonwealth shall,' or 'Every trading or financial corporation formed, etc., shall,' must necessarily be valid, unless forbidden by some other provision of the Constitution."
He then went on to say:
"It is not seriously disputed that the words of pl. xx., if they stood alone, might be capable of such a construction, but the appellants contend that it is not the true one."
It was the doctrine of reserved powers that led him to depart from this, the natural and literal construction of the words.
Barwick C.J. in Rocla Pipes, at pp. 489-490, when referring to Griffiths C.J.'s comments, said:
". . . that it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, from the validity of those sections, that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations . . . is necessarily a law with respect to the subject matter of s 51(xx)."
In substance these remarks amount to a counsel of caution. However, when analysed in the light of Barwick C.J.'s view of characterization of a law as expressed in the Pay-roll Tax Case, which I do not accept and which I shall discuss shortly, they suggest that his Honour was accepting that the potential reach of a law under s. 51(xx) would extend to the non-trading acts and activities of a trading corporation, subject only to its being characterized as a law with respect to the subject matter. Although it may be that his Honour entertained some doubt as to the universality of the illustrations given by Griffith C.J., the doubt appears to have stemmed from Barwick C.J.'s view of characterization.
The argument presented in the present case tends to obscure the difference between two distinct and separate questions: (1) what is the scope of the power; and (2) is the law in truth a law with respect to the subject matter of the power, once its scope has been ascertained. Characterization, the name given to the process of arriving at an answer to the second question, cannot begin until the first question is answered.
Tasmania then argues that s. 10 is not a law about trading and foreign corporations; rather it is a law about the activities which are prohibited by the section or, alternatively, about the Western Tasmania Wilderness area. There is no need to recall all that has been said on the topic of characterization of a law. It is sufficient to mention the discussion in Fontana by Stephen J., at pp. 622-625, Brennan J., at pp. 648- 649, and myself, at pp. 632-635. But it is necessary to reject the invitation proffered by Mr Merralls, Q.C., to accept what Barwick C.J expressed in Pay-roll Tax Case, at pp. 372-373, as constituting a correct approach to characterization. There his Honour said:
". . . a law may be at the same time thought to be a law with respect to either of two of the topics enumerated in s. 51 and it may be satisfactory in such a case not to trouble to say with respect to which of the two subject matters the law should preferably be referred. But when a law may possibly be regarded as having either of two subjects as its substance, one of which is within Commonwealth power and the other is not, a decision must be made as to that which is in truth the subject matter of the law."
His Honour then likened the manner in which the choice is to be made to the manner in which the validity of a law claimed to be within one of the two mutually exclusive lists in the Canadian Constitution is determined. He went on to say, at p. 373: "The law must be upon one or other of the subjects. It cannot be on both."
His Honour's statement reflects an approach similar to that which had been adopted by Latham C.J. in West, at pp. 668-669, and in Melbourne Corporation, at pp. 50-51. But it does not accord with the approach that has been consistently taken by the Court in modern times. It is now well settled (a) that a law upon a subject matter within Commonwealth power does not cease to be valid because it touches or affects a topic outside Commonwealth power or because it can be characterized as a law upon a topic outside power; and (b) that it is not necessary to characterize a law upon one topic to the exclusion of the other - see Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v. Dignan (1931), 46 CLR 73 , at pp. 103-104; Attorney-General (Vict.) v. The Commonwealth (1962), 107 CLR 529 , at p. 601; the Pay-roll Tax Case at pp. 400, 403-404; Fairfax v. Federal Commissioner of Taxation (1965), 114 CLR 1 , at p. 13; Herald and Weekly Times at pp. 433-434; Worthing v. Rowell and Muston Pty Ltd (1970), 123 CLR 89 , at p. 137; Rocla Pipes, at p. 510; Murphyores Incorporated Pty Ltd v. The Commonwealth (1976), 136 CLR 1 , at pp. 19-23, esp. at p. 22; Seamen's Union of Australia v. Utah Development Co (1978), 144 CLR 120 , at p. 154; Re Linehan; Ex parte Northwest Exports Pty Ltd (1981), 55 ALJR 402, at pp. 405, 406, 409; Fontana Films at pp. 624-626. No doubt, as Stephen J. suggested in Fontana, at p 625, the statement was made with reference to the argument that the character of the law in that case was with respect to the functions of a State. Be this as it may, his Honour's remarks cannot be accepted as a correct approach to characterization in general.
The true principle is that the character of the law is to be ascertained from its legal operation, that is by reference to the rights, duties, obligations, powers and privileges which it creates. This is not to deny the validity of a law which exhibits in its practical operation a "substantial connexion" with a relevant head of power. Taking the practical effect of the relevant law into account led the Court to uphold its validity in Herald and Weekly Times. So much appears from the judgments of Kitto and Menzies JJ. Kitto J. said, at p. 436:
"Undoubtedly it is right to scrutinize minutely the effect of a challenged law in all the variety of cases to which it applies according to its terms; but when that has been done the broader inquiry remains: what, then, is the law really doing by the operation which the scrutiny reveals that it has?"
And Menzies J. said, at p. 440:
"A law governing a particular relationship may, however, be supported by a legislative power with respect to a subject matter notwithstanding that the connexion between the legal relationship and the subject matter of legislative power is of practical rather than of legal significance."
The requirement that there should be a substantial connexion between the exercise of the power and its subject matter does not mean that the connexion must be "close". It means only that the connexion must not be "so insubstantial, tenuous, or distant" that it cannot be regarded as a law with respect to the head of power; Melbourne Corporation, at p. 79.
In this respect Tasmania submits that s. 7 is invalid because it selects damage to or destruction of property as the basis of the power to make a proclamation and not an act or prohibited act of a foreign or trading corporation. An event having no necessary connexion with trading or foreign corporations is made the occasion for prohibiting them from damaging property. This demonstrates something that is evident from other provisions of the Act, namely that the object of s. 10 is to protect the Western Tasmania Wilderness area. The Parliament has exercised the corporations power to achieve this end, not for some overriding purpose having a connexion with trading and foreign corporations. But the point is that the legislative power with respect to trading and foreign corporations is not, on the view which I have expressed, in any sense purposive. It is enough that the law has a real relationship with the subjects of the power; it matters not, when the power is not purposive, that the object of the exercise is to attain some goal in a field that lies outside the scope of the Commonwealth power. A law which prohibits trading and foreign corporations from doing an act is a law about trading and foreign corporations, notwithstanding that it is also a law about the act which is prohibited. It is a law which imposes obligations on such corporations enforceable by injunctions. Consequently, it is simply impossible to say that the law has no substantial connexion with trading and foreign corporations.
In the result then, subject to consideration of the argument based on s. 100 of the Constitution, s. 10(4) is a necessary consequence of the validity of s. 10(2) and (3).
Does the Act infringe Section 100 of the Constitution?
Section 100 provides:
"The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation."
The prohibitions in the Constitution are plainly directed to the Commonwealth, not to the States. It is unnecessary to decide whether s. 100 guarantees to riparian States and their residents access to the use of the waters for the purposes mentioned or whether it merely imposes a restriction on the power of the Commonwealth when legislating under ss. 51(i) and 98. It is, however, appropriate to point out that in the form in which it is expressed s. 100 does impose a restriction on the exercise of Commonwealth legislative power, one which prevents the Commonwealth by a law or regulation of the kind described from abridging the rights of a State and its residents.
The words "of trade or commerce" relate back to "law" as well as "regulation". This view is supported by similar expressions in the neighbouring sections, 102 which make it plain that the group of sections is dealing with laws with respect to trade and commerce. In this context the concept of laws and respect to trade and commerce signifies laws made, or perhaps capable of being made, under ss 51(i) and 98 for that is the relevant power conferred on the Parliament to make laws with respect to trade and commerce. The prohibitions are naturally directed to laws which may be made in the exercise of that power, with the addition in the case of s. 99 of revenue laws because the exercise of the taxation power might otherwise result in the giving of a preference to a State or to part of a State. Section 98 is of special significance because (1) it provides that Parliament's power with respect to trade and commerce extends to navigation and shipping; (2) it demonstrates that the references in other sections to a law or regulation of trade and commerce are references to laws which are made, or perhaps can be made, under s. 98; and (3) it thereby suggests that the primary purpose of s. 100 was to safeguard the rights of a State and its residents to the use of waters in rivers used for interstate trade and commerce including navigation and shipping, viz., the Murray River.
What I have said accords with what was decided in Morgan v. The Commonwealth (1947), 74 CLR 421 , where the Court held that the National Security (Rationing) Regulations and certain orders made under the regulations, though they had an effect in relation to trade and commerce, were not laws or regulations of trade and commerce within the meaning of s. 99 because they could not have been made under the Constitution. Latham C.J., Dixon, McTiernan and Williams JJ. left open the question whether a law which might be supported under s. 51(i) and independently under some other power might fall within the prohibition contained in s. 99 (p. 455). On the other hand, Starke J. was disposed to answer the question in the affirmative; p. 458. For the purposes of the present case it is unnecessary to answer this question.
At first glance it may seem somewhat artificial to confine the restriction on legislative power to laws made, or capable of being made, in exercise of one power when a somewhat similar effect in relation to the use of waters of rivers by a State and its residents for conservation or irrigation might be achieved by the Commonwealth in the exercise of other legislative powers. Why, one might ask, would the framers of the Constitution confine the pursuit of the objective - the protection of the State and its residents in relation to the use of the waters - to some Commonwealth laws but not others?
The answer to this question probably lies in the importance of the Murray River to New South Wales, Victoria and South Australia and the residents of those States and the apprehensions entertained by them as to the impact of the Commonwealth's legislative powers under 98. Time does not permit an examination of this aspect of our history. And in any event the legal answer to the question is that we must give preponderant weight to the significance of the expression "law or regulation of trade and commerce" used in 100 which, as we have seen, confines the prohibition to laws made, or capable of being made, under 98.
In my opinion neither the Act infringes s. 100.
Is the Commission a Trading Corporation Within the Meaning of Section 10?
This question must be answered in the affirmative for reasons which may be shortly stated in this way:
1. The decision in Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1973), 130 CLR 533 , is no longer to be regarded as correct. A majority of the Court in Reg. v. Federal Court of Australia; Ex parte WA National Football League (1979), 143 CLR 190 considered it to have been wrongly decided. See also State Superannuation Board v. Trade Practices Commission (1982), 57 ALJR 89, at p. 96.
2. As Barwick C.J. observed in his dissenting judgment in St. George County Council, at p. 541, the connexion of the corporation with the government of a State will not take it outside s. 51(xx). In making this statement, his Honour referred to certain features of the County Council in that case and stated that they did not take the Council outside the category of "trading corporations". The features were (1) that it was incorporated under the Local Government Act 1919 (NSW); (2) that it had power to levy a loan rate; (3) that there was a limitation on profitmaking to ensure that the council performed a public service for the county district; and (4) that in reticulating electricity to the district it was performing a public service.
3. The Commission's connexion with the government of Tasmania is certainly closer than the connexion of St. George County Council with the government of New South Wales. And the Commission's position in the structure of government is certainly more important than that of the County Council. The Commission is the State authority responsible for generating and distributing electrical power in the State. It constructs and manages the relevant dams, generating plants and other works and makes the policy decisions and recommendations to the Minister in connexion with its functions. But in Launceston Corporation v. The Hydro-Electric Commission (1959), 100 CLR 654 , it was decided that the Commission was an independent statutory corporation and it was not a servant or agent of the Crown. Since then the Commission's Act has been amended, notably by the inclusion of ss. 15A and 15B. Section 15A enables the Minister to notify the Commission of the policy objectives of the government with respect to any matter relating to generation, distribution, etc. of electrical energy. Section 15B enables the Minister to give a direction to the Commission with respect to the performance of its functions, subject to certain limitations and qualifications. The Commission may object to the direction. If the Minister does not withdraw the direction or qualify it in a manner acceptable to the Commission, the matter is then submitted to the Governor for decision (s 15B(4) and (5)). The Commission is bound to comply with the direction, subject to any withdrawal or modification and subject to a decision of the Governor. However, it is specifically provided that the Minister's power to give a direction does not make the Commission a servant or agent of the Crown or confer on the Commission any status, privilege or immunity of the Crown (s. 15B(9)). Accordingly it is not suggested that the decision in Launceston Corporation has been eroded by legislative developments.
4. The trading activities of the Commission therefore form a much less prominent feature of its overall activities than was the case with St. George County Council. The Commission has an important policy-making role. It is the generator of electrical power for Tasmania for distribution to the public and for this purpose it engages on a large scale in the construction of dams and generating plants. In this respect its operations are largely conducted in the public interest.
5. However, WA National Football League demonstrates that these considerations do not exclude the Commission from the category of "trading corporations". The majority judgment in State Superannuation Board pointed out, at p 96, that the case decided that a trading corporation whose trading activities take place so that it may carry on some other primary or dominant undertaking (which is not trading) may nevertheless be a trading corporation.
6. The agreed facts show that the Commission sells electrical power in bulk and by retail on a very large scale. This activity in itself designates the Commission as a trading corporation.
7. The final question, one raised on behalf of the Commission, is whether it is possible to treat for the purposes of s 51(xx) a corporation as a trading corporation in relation to its trading activities and as a non-trading corporation in relation to its non-trading activities. My earlier conclusion that the legislative power is not confined to the trading activities of trading corporations is in one sense an answer to this submission. The other answer is that s. 51(xx) designates as the subject of the power the corporate persona itself, that is the artificial person created by incorporation. There is no suggestion in the paragraph that it is looking to some hypothetical or notional incorporation which covers only the trading activities of a trading corporation.
I therefore conclude that the Commission is a trading corporation within the meaning of s 10 of the Commonwealth Act. And in my opinion the Commission is constructing the dam and associated works for the purposes of its trading activities. The dam will provide additional electrical energy for supply and sale by the Commission.
Validity of World Heritage Properties Conservation Act 1983
By virtue of two proclamations gazetted on 26th May, 1983, it was declared pursuant to the Act applies to Kutikina Cave and Deena Reena Cave and to the open archaeological site. Likewise, Reg. 5(1) defines the "relevant site" for the purposes of s 11(1)(i) as meaning the two caves and the open archaeological site.
Regulation 5(2) then prescribes for the purposes of s. 11(1)(i) the following acts - the carrying out of works in the course of constructing a dam which will be capable of causing the inundation of a relevant site or part of a relevant site, the carrying out of works preparatory to such construction and the carrying out of works associated with the construction.
The prohibitions in s. 9(1), except for the inclusion of a new prohibition, that contained in par. (d) of s. 11(1). Paragraph (d) prohibits damage to or destruction of any artifacts or relics sited on any site to which the section applies. Section 11(2) then prohibits, without the consent in writing of the Minister, the doing of any act, not being an act prohibited by sub-s. (1) that damages or destroys or is likely to result in damage to or destruction of any site, artifact or relic on any site to which the section applies. Subsection (3) prohibits without the written consent of the Minister the doing of any act preparatory to the doing of an act that is prohibited by sub-s. (2).
Section 8(2) provides that a reference to an aboriginal site is a reference to a site (a) situated within identified property and (b) the protection or conservation of which is, whether by reason of the presence on the site of artifacts or relics or otherwise, of particular significance to the people of the aboriginal race.
The question is whether the relevant provisions are supported by the power conferred by s. 51(xxvi), that is, the power to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws".
In Koowarta, Stephen J., after saying that laws made under par. (xxvi) "must be special laws, in the sense of having some special connexion with people of any race", stated, at p 642:
". . . I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises."
Later he said: "To be within power under par.(26) a law must be special in the sense that it is the particular race, or races, for whom it legislates that gives rise to the occasion for its enactment."
See also p 665, per Brennan J.
Tasmania contends that 11 lie outside this conception of a special law for the people of the aboriginal race for two reasons: (1) they are not special laws for the people of that race; and (2) their character is not that of a law with respect to the people of that race. The two reasons, though different, are by no means distinct. They share in common the notion that a law made under par. (xxvi) must, if it operates upon people generally, be confined to their dealings with people of the aboriginal race.
To my mind this is too narrow a view of the power. It seems to require of the law that it must regulate the rights of people of the particular race inter se or vis-avis others or, to put it another way, that the law must regulate the conduct and transactions of people of that race inter se or vis-a-vis others. Why the power should be so limited is not immediately apparent. Its terms are wide enough to enable the Parliament (a) to regulate and control the people of any race in the event that they constitute a threat or problem to the general community; and (b) to protect the people of a race in the event that there is a need to protect them. Indeed, it is not denied that the power extends to a law protecting them, for example, a law protecting the people of that race from racial discrimination. Of course, a distinction can be drawn between (a) the protection from injury to, and discrimination against, the individual members of a particular race and (b) the protection from damage or injury to elements of the cultural heritage - and I use this term to include the historical and spiritual or religious heritage - of the people of a particular race, for example, a church, a shrine or an archaeological site. But there is no persuasive reason for drawing such a distinction in the context of a legislative power in the Constitution so broadly expressed as to apply to "the people of any race".
In essence the argument is that, as a subject matter of the legislative power, the cultural heritage of the people of a race is distinct and divorced from the people of that race, so that a power with respect to the latter does not include power with respect to the former. The answer is that the cultural heritage of a people is so much of a characteristic or property of the people to whom it belongs that it is inseparably connected with them, so that a legislative power with respect to the people of a race, which confers power to make laws to protect them, necessarily extends to the making of laws protecting their cultural heritage.
A law which protects the cultural heritage of the people of the aboriginal race constitutes a special law for the purpose of par. (xxvi) because the protection of that cultural heritage meets a special need of that people. However, it is argued that 11 do not answer the description of such a law because the law only protects a site which is of significance to the whole of mankind and to the people of the aboriginal race. This argument fails to acknowledge that something which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage. Thus an aboriginal archaeological site which is part of the cultural heritage of people of the aboriginal race has a special and deeper significance for aboriginal people than it has for mankind generally. If it be found on the facts that the sites do have a particular significance for them because the sites are part of their cultural heritage, there is a special need to protect the sites for them, a need which differs from, and in one sense transcends, the need to protect it for mankind.
Other points which are made are said to go to the character of the law, viz. the law does not attempt to deal with sites of aboriginal significance in their generality, the actual protection which a proclaimed site receives may be unrelated to features which make it significant to aboriginal people and the true object of the law is to protect the property which forms part of the world heritage. These matters may be acknowledged, subject only to saying that the protection given to the sites will result in the protection of the features which make them significant to aboriginal people. But they do not detract from the validity of the law if, on the facts, it does what it purports to do on its face, namely protects sites which are part of the heritage of the aboriginal people. It is then a law upon the legitimate subject of legislative power.
In the result 11 are valid, subject to the sites being of "particular significance" to the people of the aboriginal race, using that expression in the sense which I have ascribed to it, namely that the sites are significant because they are elements in the cultural heritage (including the historical and spiritual or religious heritage) of that people.
I answer the questions asked as follows:
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."It is not invalid but it is ineffective unless the federal Minister consents."
Question 6. Not necessary to answer.
Action No C12 of 1983
Question 1.(a) "Yes; ss. 6 and 9 in their entirety except pars.(a),(c),(d) and (e) of s 6(2), the validity of which it is not necessary to determine.
Question 1.(b)"Yes;ss. 7 and 10 in their entirety".
Question 1.(c)"Yes;ss. 8 and 11 in their entirety".
Question 1.(d) Does not arise.
Question 2. "No, save as to Reg. 5 and the two proclamations made under s 8(3), 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.(a)Does not arise.
Question 3.(b) Does not arise.
Question 4.See answer to Question 2.
Question 5.(a)"Yes".
Question 6."It is not invalid but it is ineffective unless the federal Minister consents".
Question 7.Not necessary to answer.
Question 8."Yes".