Commonwealth v Tasmania (The Tasmanian Dam Case)
158 CLR 146 ALR 625
(Judgment by: DEANE 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:
DEANE J
DEANE J. The questions before the Court are questions of law. They concern the validity of an entanglement of provisions of Commonwealth statutes, regulations and proclamations by which the Commonwealth seeks to obstruct the proposed construction of a dam across the Gordon River below its junction with the Franklin. Those questions fall to be resolved in accordance with legal method and legal principle. The general identification and assessment of any advantages or disadvantages which would probably or possibly result from the construction of the dam are not matters for the Court. They are matters for those who have authority, under the Constitutions and valid legislation of the Commonwealth and of Tasmania, to determine the political question whether the construction of the dam should proceed.
The Commonwealth and its Attorney-General (the Commonwealth) point to four perceived heads of legislative power as the basis of the impugned statutory provisions. World Heritage Properties Conservation Act 1983 (Cth) (the Act) is said to be based on what was described as an "inherent power deriving from nationhood". National Parks and Wildlife Conservation Act 1975 (Cth) (the National Parks Act) and ss. 6 (excluding sub-s. 2(e)) and 9 of the Act are said to be supported by s. 51(xxix) of the Commonwealth Constitution: the external affairs power. 10 of the Act are claimed to be within legislative competence as being laws with respect to trading and foreign corporations: Constitution, Sections 8 and the Constitution for the reason that they are special laws for the people of "the Aboriginal race".
For its part, the State of Tasmania (supported by its Premier, its Attorney-General and the Hydro-Electric Commission of Tasmania) disputes that the relevant statutory powers can be sustained by reference to the designated heads of Commonwealth legislative power. It also propounds two distinct grounds of overriding invalidity. First, it asserts that, to the extent to which they would preclude construction of the dam, the provisions of the Commonwealth statutes, regulations and proclamations are invalid in that they would transgress the guarantee of the Constitution that the Commonwealth should 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. Secondly, it submits that, if they be otherwise valid, the provisions of the Commonwealth statutes, regulations and proclamations cannot stand for the reason that they are laws with respect to the acquisition of property from a State which fail to provide for the just terms which the Constitution exacts as the price of validity. The first of those suggested grounds of overriding invalidity can be summarily disposed of. That based on s. 51(xxxi) requires to be considered in greater detail and will be discussed subsequently.
In Morgan v. The Commonwealth (1947), 74 CLR 421 , at pp. 455 and 458-459, it was held by this Court, in a case involving an alleged preference against retailers in Victoria contrary to the provisions of s. 99 of the Constitution, that the references in 102 to any law or regulation of trade or commerce must be read as restricted to laws which could be made under the power conferred by the Constitution, that is to say, laws with respect to trade and commerce with other countries and among the States. It was submitted on behalf of Tasmania that that decision was wrong and should not be followed. I find it unnecessary to consider that submission however since it appears to me to be plain that none of the provisions involved in the present case could properly be described as a "law or regulation of trade or commerce" regardless of whether those words are given the restricted meaning attributed to them in Morgan's Case. None of the impugned provisions in the present case is, either in character or in legal operation, a law or regulation of international, inter-State or intra-State trade or commerce.
The validity of the various regulations and proclamations depends upon the validity and scope of the statutory provisions in pursuance of which they were purportedly made. The convenient starting point is therefore the consideration of whether all or any of the statutory provisions are prima facie within the legislative competence of the Commonwealth Parliament. It will then be necessary to consider whether the provisions of any regulation or proclamation purportedly made in pursuance of prima facie valid statutory provisions come within the regulation or proclamation making power conferred by those statutory provisions. Finally, it will be necessary to examine: whether any general constitutional limitation on Commonwealth legislative power or the requirement of "just terms" contained in s. 51(xxxi) has the effect of invalidating any otherwise valid provision of a Commonwealth statute, regulation or proclamation; whether, if the provisions of 10 of the Act are valid, the Hydro-Electric Commission of Tasmania is a "trading corporation" for the purposes of those provisions; and whether, in the light of conclusions reached in relation to the above matters, the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) is valid. I shall, except to the extent necessary for discussion, endeavour to avoid repetition of background circumstances or the provisions of Acts, regulations, proclamations and international conventions which are adequately canvassed or set out in other judgments.
Legislative competence
(i) The "inherent power": Section 6(2)(e) of the Act
There are many statements in judgments in this Court which support the proposition that, in the context of s. 61 of the Constitution, each of the Commonwealth Parliament and Executive is vested with certain powers which are inherent in its existence or in the fact of Australian nationhood and international personality (see, generally, Attorney-General (Vict.) v. The Commonwealth (Dale's Case) (1945), 71 CLR 237 , at p. 269; Victoria v. The Commonwealth and Hayden (1975), 134 CLR 338 , at pp. 397 and 412-413). At the heart of such powers, there lies "the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities"; Black's American Constitutional Law, (2nd ed. 1910), s. 153, p. 210, quoted by Dixon J. in Australian Communist Party v. The Commonwealth (1951), 83 CLR 1 , at p. 188 and see, to the same effect, per Latham C.J. in Burns v. Ransley (1949), 79 CLR 101 , at pp. 109- 110. The outer limits of such powers remain unexplored. They have been suggested, in the context of an appropriation of moneys from consolidated revenue, to include, for example, exploration itself in both physical and intellectual fields; see per Barwick C.J. in Victoria v. The Commonwealth and Hayden, at p. 362).
As one moves away from those matters which lie at the heart of the inherent powers of the Commonwealth, it becomes increasingly predictable that any such powers will be confined within areas in which there is no real competition with the States. There are, no doubt, areas within the plenitude of executive and legislative power shared between Commonwealth and States (see Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth (1912), 15 CLR 355 ) which, while not included in any express grant of legislative power, are of real interest to the Commonwealth or national government alone. Even in fields which are under active State legislative and executive control, Commonwealth legislative or executive action may involve no competition with State authority: an example is the mere appropriation and payment of money to assist what are truly national endeavours. It is unnecessary to pursue the subject here however. It suffices, for present purposes, to say that I consider that the inherent powers of the Commonwealth could not, on any proper approach, be seen as including the power to enact a law imposing drastic restrictions of the type contained in s 9 of the Act in respect of the "identified property" (as defined in s 3(2) of the Act) in relation to which the requirements of sub-ss. 2(e) and (3) of the Act are satisfied. Those restrictions would involve the potential freezing of the "identified property" to which they were applied and would, to no small extent, override and displace the ordinary legislative and executive powers of the State, in which such property was situate, to authorize or regulate conduct thereon. The fact that particular physical property or artistic, intellectual, scientific or sporting achievement or endeavour is "part of the heritage distinctive of the Australian nation" may well be decisive of the question whether the protection, preservation or promotion of such property, achievement or endeavour may be made the object of an appropriation of money by the Commonwealth Parliament or of Commonwealth action to assist or complement actions of a State. In the absence of any relevant grant of power to the Commonwealth however, that fact cannot constitute the basis of some unexpressed power in the Commonwealth to arrogate to itself control of such property, achievement or endeavour or to oust or override the legislative and executive powers of the State in which such property is situate or such achievement or endeavour has been effected or is being pursued.
It follows that the Act cannot be sustained as an exercise of any inherent or unexpressed legislative power. The Commonwealth did not suggest that the paragraph could be justified by reference to any express grant of power. Accordingly, s. 6(2)(e) is invalid.
(ii) The External Affairs Power: National Parks Act, section 69; Act, sections 6 (other than subsection 2(e)) and 9
Section 51 (xxix) of the Constitution provides that the Commonwealth Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs. The phrase "external affairs" is, like the phrase "foreign affairs" and "foreign relations", a composite one in which the noun exists in its plural form; see, for example, "affair": Oxford English Dictionary, at p. 150; "foreign affairs": Webster's Third New International Dictionary, at p. 889). The use of the singular "external affair" to refer to a particular matter or aspect of "external affairs" is not only inapposite: it is liable to convey incorrect shades of meaning which will assume added significance if one proceeds to engage in the reverse process of defining the limits of the external affairs power by reference to whether a particular matter or object can or cannot properly be described as an "external affair". It was, in my view, for that reason that, up until Airlines of NSW Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54 at 85, the singular "external affair" was not used in judgments in this Court in relation to the legislative power conferred by s. 51(xxix). Thus, one finds in the judgments in Rex v. Burgess; Ex parte Henry (1936), 55 CLR 608 the consistent use of the phrases "external affairs", "external relations", "foreign affairs" and "foreign relations" - phrases "between which" Latham C.J. stated that he could "draw no distinction" (supra, at p. 643) - and of phrases such as "a matter of external affairs" or "an aspect of external affairs" when it was necessary to refer to a single subject. More importantly, "the meaning" which Latham C.J. gave to the phrase "external affairs" and the words in which Evatt and McTiernan JJ. explained what is comprehended by the phrase, in the passages set out below, lie ill indeed with the notion that the reference to "external affairs" in s 51(xxix) can properly be regarded as a reference to a number of distinct items each of which can appropriately be identified as "an external affair".
The grant of legislative power contained in s 51(xxix) is, like those contained in the other paragraphs of s 51, subject to the express general limitations of the Constitution. It is also subject to any general overriding constitutional principle that Commonwealth legislative powers cannot be exercised in a way which would involve an indirect amendment to the Constitution or which would be inconsistent with the continued existence of the States and their capacity to function or involve a discriminatory attack upon a State "in the exercise of its executive authority", see Melbourne Corporation v. The Commonwealth (1947), 74 CLR 31 , at p 83. Otherwise, it is a plenary grant of power to make laws for the peace, order and good government of the Commonwealth with respect to all that is comprehended in the phrase "external affairs". It is not to be limited by reference to notions of legislative powers being reserved to the States. Nor is it to be limited by the notion that to give the words conferring the power their full effect would imperil the balance between Commonwealth and States which was achieved by the distribution of legislative powers contained in the Constitution. To the contrary, it was pursuant to that distribution that the Commonwealth was given a full and complete grant of legislative power with respect to external affairs. As Latham C.J. commented in Burgess' Case, at pp.636- 637:
"In approaching the consideration of this matter I first emphasize the fact that the power to legislate with respect to external affairs is a power expressly conferred upon the Commonwealth Parliament by the Constitution. No question of interference with the rights of the States arises. The Commonwealth Parliament constitutionally possesses the power to legislate as it thinks proper with respect to external affairs, and, if any State legislation is inconsistent with Federal legislation on this subject, the State legislation is, to the extent of the inconsistency, invalid under s. 109 of the Constitution".
It was suggested in argument that to give the power conferred by s. 51(xxix) the full scope which a "literal interpretation" would give it would not be "consonant" with what the Constitution was "intended" to achieve. I can discern little legal force in that submission. It is, in any event, unduly harsh in its assessment of the foresight of the architects of our nation. As early as the 1891 Convention, Sir Henry Parkes identified, as a basic object of the proposed Federation, the creation of "one great union government which shall act for the whole". "That government", he continued, "must, of course, be sufficiently strong to act with effect, to act successfully, and it must be sufficiently strong to carry the name and the fame of Australia with unspotted beauty and with uncrippled power throughout the world. One great end, to my mind, of a federated Australia is that it must of necessity secure for Australia a place in the family of nations, which it can never attain while it is split up into separate colonies.. .", Official Record of the Debates of the National Australasian Convention (1891), at p. 14; and see, also, the comments of Mr. Alfred Deakin made at the Imperial Conference of 1907 and quoted by Evatt and McTiernan JJ. in Burgess' Case, at p. 685.
If it was not already obvious,Burgess' Case and its sequel, Rex v. Poole; Ex parte Henry (No 2) (1939), 61 CLR 634 , established that the power to make laws for the peace, order and good government of the Commonwealth pursuant to s. 51(xxix) includes the power to make laws which operate within the Commonwealth. As a matter of characterization, it may be more apparent that a law whose operation is external to Australia is a law with respect to external affairs. As a matter of legislative power however, the Parliament's power to legislate with respect to external affairs is not limited by considerations of whether the law operates within or without Australia. If the law does not conflict with constitutional prohibitions and can properly be characterized as a law with respect to external affairs, it is within power.
Burgess' Case was the first occasion on which this Court was required to consider the scope of the external affairs power. Latham C.J., in his judgment, and Evatt and McTiernan JJ., in their joint judgment, explained the meaning and scope of the phrase "external affairs" in s. 51(xxix) in words which remain authoritative and with which I respectfully agree. Latham C.J. said, at p. 643:
"The establishment of a political community involves the possibility, indeed the practical certainty in the world as it exists today, of the establishment of relations, between that community and other political communities. Such relations are necessarily established by governments, which act for their people in relation to other peoples, rather than by legislatures which make laws for them. This fact of international intercourse is unaffected by the fact that a government may think it wise or (as in the United States of America) be bound, to obtain legislative approval of certain of its international acts. The regulation of relations between Australia and other countries, including other countries within the Empire, is the substantial subject matter of external affairs. Such regulation includes negotiations which may lead to an agreement binding the Commonwealth in relation to other countries, the actual making of such an agreement as a treaty or convention or in some other form, and the carrying out of such an agreement." (emphasis added).
Evatt and McTiernan JJ. said(at p. 684):
"Therefore the real question is - what is comprehended by the expression 'external affairs'. It is an expression of wide import. It is frequently used to denote the whole series of relationships which may exist between States in times of peace or war. It may also include measures designed to promote friendly relations with all or any of the nations. Its importance is not to be measured by the output of domestic legislation on the topic because this sphere of government is characterized mainly by executive or prerogative action, diplomatic or consular. As has already been noted, the phrase 'external affairs' occurs, and is used in the very widest sense, in the Imperial Conference declaration of 1926. It would seem that, in s. 51 of the Constitution, the phrase 'external affairs' was adopted in preference to 'foreign affairs,' so as to make it clear that the relationship between the Commonwealth and other parts of the British Empire, as well as the relationship between the Commonwealth and foreign countries, was to be comprehended."
They concluded, at p 687:
"It would seem clear, therefore, that the legislative power of the Commonwealth over 'external affairs' certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers."
Latham C.J. and Evatt and McTiernan JJ. constituted a majority of the Court in Burgess' Case. The actual decision in the case is direct authority for the proposition that legislation empowering the Governor-General to make regulations for carrying out and giving effect to the Paris Convention on Aerial Navigation (1919) and to the provision of any amendment of that Convention was a valid exercise of the external affairs power. The subject of the Paris Convention possessed characteristics which made it "indisputably international in character" and the judgment of Dixon J. proceeds on that basis; see at p. 669. Starke J., at p. 658, referred to the possibility that it "may be . . . that . . . laws will be within power" only if their subject matter is, in words used by Willoughby in connection with the United States treaty-making power, "of sufficient international significance to make it a legitimate subject for international co-operation and agreement"; The Constitutional Law of the United States, (2nd ed. 1929), at p. 519. Such a qualification, if accepted, would be less restrictive than that suggested by Dixon J. It would, however, seem more appropriate as a qualification upon the power of the Executive to make treaties than upon the power of the Parliament to carry them into effect: this is particularly so in the context of Starke J.'s statement (supra) that, subject to the express and implied limitations which restrain generally the exercise of Federal powers, the legislative power conferred by s 51 (xxix) "is comprehensive in terms and must be commensurate with the obligations that the Commonwealth may properly assume in its relations with other Powers or States" (emphasis added). Be that as it may, such a qualification was not an essential element in the reasoning of the other members of the Court. Latham C.J., at pp. 640-641, expressly referred to - and rejected - an argument that "the power to legislate with regard to external affairs is limited to matters which in se concern external relations or to matters which may properly be the subject matter of international agreement". He concluded, after reference to some of the treaties to which Australia was a party or which affected Australia, that "the possible subjects of international agreement are infinitely various" and that it is "impossible to say a priori that any subject is necessarily such that it could never properly be dealt with by international agreement". Evatt and McTiernan JJ., at p. 681, stated that the prerogative "to enter into international conventions cannot be limited in advance of the international situations which may from time to time arise" and expressed the view that "the fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement". Burgess' Case is authority for the proposition that the "substantial subject matter of external affairs" includes "the carrying out", within or outside Australia, of an agreement binding the Commonwealth in relation to other countries whatever the subject matter of the agreement may be.
In Koowarta v. Bjelke-Petersen (1982), 56 ALJR 625, a majority of the Court (Stephen, Mason, Murphy and Brennan JJ; Gibbs C.J., Aickin and Wilson JJ. dissenting) held that Racial Discrimination Act 1975 (Cth) represented a valid exercise of the external affairs power. The individual judgments of the members of the Court contain an instructive canvassing of the considerations relevant to the determination of the true scope of the external affairs power. There is, however, nothing in the judgments which causes me to modify my acceptance of, and agreement with, the views expressed by a majority of the Court in Burgess' Case as to the meaning of the phrase "external affairs" and as to the scope of the legislative power which s. 51(xxix) confers.
The establishment and protection of the means of conducting international relations, the negotiation, making and honouring (by observing and carrying into effect) of international agreements, and the assertion of rights and the discharge of obligations under both treaties and customary international law lie at the centre of a nation's external affairs and of the power which s. 51(xxix) confers. They do not, however, cover the whole field of "external affairs" or exhaust the subject matter of the legislative power. The full scope of the power is best left for determination on a case by case basis - "by a course of decision in which the application of general statements is illustrated by example"; per Dixon J. in Burgess' Case, at p 669. It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today's world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation. This was recognized by Evatt and McTiernan JJ. in Burgess' Case when, in the sentences following the extract, from p. 687, of their judgment set out above, they commented that:
". . . it is not to be assumed that the legislative power over 'external affairs' is limited to the execution of treaties or conventions" and illustrated the comment by adding that "the Parliament may well be deemed competent to legislate for the carrying out of 'recommendations' as well as the 'draft international conventions' resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations."
Circumstances could well exist in which a law which procured or ensured observance within Australia of the spirit of a treaty or compliance with an international recommendation or pursuit of an international objective would properly be characterized as a law with respect to external affairs notwithstanding the absence of any potential breach of defined international obligations or of the letter of international law.
On the other hand, a law cannot properly be characterized as a law with respect to external affairs if its direct operation is upon a domestic subject matter which is not in itself within the ambit of external affairs and if it lacks the particular operation which is said to justify such characterization. Thus, a law would not properly be characterized as a law with respect to external affairs if it failed to carry into effect or to comply with the particular provisions of a treaty which it was said to execute (see Burgess' Case; Airlines of NSW (No. 2) or if the treaty which the law was said to carry into effect was demonstrated to be no more than a device to attract domestic legislative power; Burgess' Case, at pp. 687, 642 and 669; Koowarta, at pp. 651 and 664. More importantly, while the question of what is the appropriate method of achieving a desired result is a matter for the Parliament and not for the Court (see Poole (No. 2), at pp. 644, 647-648 and 655; Airlines of NSW (No 2), at p. 136), the law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs; cf. per Starke J., speaking of the scope of the regulation-making power, in Burgess' Case, at pp. 659-660 and in Poole (No. 2), at p. 647, and per Barwick C.J. in Airlines of NSW (No. 2), at p. 86). In that regard, the purpose which a law operating upon a domestic subject matter is intended to achieve (for example, the carrying into effect of a treaty, the performance of an international obligation or the obtaining of an international benefit) is likely to assume an importance in deciding questions of characterization in relation to s. 51(xxix) which is comparable to its importance in characterization in relation to the defence power (s. 51 (vi)) since it will commonly be that purpose which, in the factual context, is called in aid to provide the character of a law with respect to external affairs. As Dixon J. observed in Burgess' Case, at p. 674:
"It is apparent that the nature of this power necessitates a faithful pursuit of the purpose, namely, a carrying out of the external obligation, before it can support the imposition upon citizens of duties and disabilities which otherwise would be outside the power of the Commonwealth. No doubt the power includes the doing of anything reasonably incidental to the execution of the purpose. But wide departure from the purpose is not permissible, because under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates."
Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it. Thus, to take an extravagant example, a law requiring that all sheep in Australia be slaughtered would not be sustainable as a law with respect to external affairs merely because Australia was a party to some international convention which required the taking of steps to safeguard against the spread of some obscure sheep disease which had been detected in sheep in a foreign country and which had not reached these shores. The absence of any reasonable proportionality between the law and the purpose of discharging the obligation under the convention would preclude characterization as a law with respect to external affairs notwithstanding that Tweedledee might, "contrariwise", perceive logic in the proposition that the most effective way of preventing the spread of any disease among sheep would be the elimination of all sheep. The law must be seen, with "reasonable clearness", upon consideration of its operation, to be "really, and not fancifully, colourably, or ostensibly, referable" to and explicable by the purpose or object which is said to provide its character; cf., as regards the defence power, Rex v. Foster (1949), 79 CLR 43 , at p. 84; Shrimpton v. The Commonwealth (1945), 69 CLR 613 , at pp. 623-624; Marcus Clarke & Co. Ltd. v. The Commonwealth (1952), 87 CLR 177 , at pp. 215-216 and 256. In that regard, the "peculiar" or "drastic" nature of what the law provides or the fact that it pursues "an extreme course" is relevant to characterization; cf. Rex v. Foster, at pp. 96-97.
It is not suggested, in the present case, that the Western Tasmania Wilderness National Parks (the Wilderness National Parks) and the construction of a dam across the Gordon River are, in themselves, matters of external affairs. A law with respect to them would not, without more, be even arguably within s. 51(xxix). What is claimed, on behalf of the Commonwealth, to enliven the external affairs power and to support the specific statutory provisions is Australia's participation in the Convention for the Protection of the World Cultural and Natural Heritage (the Convention) which was adopted by the General Conference of UNESCO on 16th November, 1972, combined with the entry, on the nomination of Australia, of the Wilderness National Parks upon the World Heritage List which is kept pursuant to the provisions of the Convention. The Convention, which was ratified by Australia on 22nd August, 1974, is an international treaty between seventy-four nations. It is common ground that Australia's entry into it was within Commonwealth power.
International agreements are commonly "not expressed with the precision of formal domestic documents as in English law". The reasons for this include the different importance attributed to the strict text of agreements under different systems of law, the fact that such agreements are ordinarily "the result of compromise reached at the conference table" and the need to accommodate structural differences in official languages; see Wynes, Legislative, Executive and Judicial Powers in Australia, (5th ed., 1976), at p. 299. It is, therefore, not surprising that, in a Convention to which more than seventy States are parties and which was drawn up in no less than five "equally authoritative" official languages (Art. 30), the terms in which the obligations of "the States Parties" are defined do not possess the degree of precision which is desirable in a private contract under the common law. That absence of precision does not, however, mean any absence of international obligation. In that regard, it would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law. To adopt a phrase that has been the subject of some discussion in this Court, Australia would, in truth, be an "international cripple" if it needed to explain to countries with different systems of law and completely different domestic rules governing the enforceability of agreements that the ability of its national Government to ensure performance of "obligations" under an international convention would depend upon whether those obligations were or were not held by an Australian court to be merely "illusory" within the principles explained in the case of Placer Development Ltd. v. The Commonwealth (1969), 121 CLR 353 to which the Court was referred.
However loosely such obligations may be defined, it is apparent that Australia, by depositing its instrument of ratification, bound itself to observe the terms of the Convention and assumed real and substantive obligations under them. Apart from the obligation to pay contributions (Art.16), the most clearly defined obligations assumed by Australia under the Convention are those relating to properties, such as the Wilderness National Parks, which have been included, on Australia's nomination, in the World Heritage List. Such properties have been specifically identified as properties in respect of which obligations undertaken by parties to the Convention are applicable (see Arts. 6(1) and (2), 11 and 13). A main purpose of the provisions relating to establishing and keeping the World Heritage List with its requirement that a property be not entered without the agreement of the State in whose territory it is situated is to identify property which is indisputably subjected to the terms of the Convention. Those obligations include the primary "duty of ensuring", among other things, the protection, conservation and presentation of the relevant property (Art. 4) and an express undertaking to "endeavour, in so far as possible, and as appropriate for each country", to "take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation" thereof (Art.5(d)). The burden of international obligation in respect of properties entered upon the World Heritage List is, at least to some extent, counterbalanced by the express recognition, on the part of other States Parties, that those properties constitute a World Heritage "for whose protection it is the duty of the international community as a whole to cooperate" and by an express undertaking by such other States Parties, in accordance with the provisions of the Convention, to give their help in the identification, protection, conservation and preservation of such properties (Art.6). For its part, the World Heritage Committee is required to receive and study requests for international assistance formulated by States Parties with respect to such properties (Art.13). Such assistance may take the form of expert advice, labour, supply of equipment, interest-free loans and, in exceptional circumstances, non-repayable subsidies (Art.22). Unless one is to take the view that over seventy nations have engaged in the solemn and cynical farce of using words such as "obligation" and "duty" where neither was intended or undertaken, the provisions of the Convention impose real and identifiable obligations and provide for the availability of real benefits at least in respect of those properties which have, in accordance with the procedure established by the Convention, been indisputably made the subject of those obligations and identified as qualified for those benefits by being entered, upon the nomination of the States in which they are situated, on the World Heritage List. Those obligations have been undertaken by Australia in relation to, amongst other "properties", the Wilderness National Parks.
Article 34 of the Convention makes special provision in respect of States Parties to the Convention which have a federal or non-unitary constitutional system. It provides that, with regard to the provisions of the Convention whose implementation comes under the legal jurisdiction of the federal or central legislative power, "the obligations of the federal or central government shall be the same as for those States Parties which are not federal States" and that, with regard to those provisions whose implementation "comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons", "the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption". It was submitted on behalf of Tasmania that the effect of the provisions of Art. 34 is to absolve the Commonwealth of the obligation to carry the Convention into effect in so far as the protection or conservation of properties situated within a State is concerned. In my view, there is a plain answer to that submission. Article 34 acts on the distribution of powers under the Constitution. As I have indicated, I consider that, under that distribution of powers, the carrying into effect of the Convention is within the paramount legal jurisdiction of the Commonwealth Parliament by virtue of the express grant of legislative power contained in s. 51(xxix). It follows that, far from absolving the Commonwealth of the obligation to implement the provisions of the Convention, Article 34 underlines, in express terms, the "obligations" of the Commonwealth in that regard. I would add that, even if I had been persuaded that the Commonwealth could avoid the obligation to carry the Convention into effect by relying upon the provisions of Art. 34, I would have been of the view that the decision whether or not reliance should, in fact, be placed on the provisions of that Article would be a matter for decision by the Commonwealth in the conduct of Australia's external affairs.
It follows that, subject to any general constitutional restrictions, s. 51(xxix) of the Constitution confers upon the Commonwealth the legislative power necessary for carrying the Convention into effect including the power to make laws for procuring the performance within Australia of all or any of the obligations assumed by Australia under it.
Section 69(1) of the National Parks Act provides that the "Governor-General may make regulations for and in relation to giving effect to an agreement specified in the Schedule". The Convention is one of five international agreements listed in the Schedule. It was argued on behalf of Tasmania that, in its context in the National Parks Act, s. 69(1) should be construed as applying only to authorize the making of regulations in relation to parks or reserves established under Pt. II of that Act. The clear words of s. 69(1), the presence of the regulation-making power contained in s. 71 and consideration of the nature and content of the agreements listed in the Schedule combine to make clear that that submission cannot be accepted. Inappropriate though the setting provided by the National Parks Act may be, s. 69(1) must, in my view, be construed as including a general grant to the Governor-General of power to make regulations for and in relation to giving effect to the Convention. While such a general delegation to the Executive of the legislative power to give effect to the Convention may be thought undesirable, there is strong authority to support the view that it is not, for that reason, beyond power (Roche v. Kronheimer (1921), 29 CLR 329 ; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931), 46 CLR 73 ; Burgess' Case, at p. 657) and no submission was made on behalf of Tasmania that s. 69(1) was invalid on the ground that it constituted an excessive delegation of legislative power.
The scope of the regulation-making power which s. 69(1) confers will be considered in greater detail subsequently when consideration is given to the validity of the World Heritage (Western Tasmania Wilderness) Regulations purportedly made under the subsection. For immediate purposes, it suffices to say that s. 69(1) would only authorize the making of regulations which were capable of being reasonably considered to be appropriate and adapted to giving effect to the Convention (Poole (No. 2), at pp. 647 and 654-655). That being so, the provisions of s. 69(1) are, in so far as they authorize the making of regulations for and in relation to giving effect to the Convention, a law with respect to external affairs within the Constitution.
Section 3(2) of the Act provides that a reference to "identified property" shall be read as a reference either to property, forming part of the cultural or natural heritage (as defined in the Convention), which the Commonwealth has submitted to the World Heritage Committee as suitable for inclusion in the World Heritage List or which has been declared by the regulations to form part of the cultural or natural heritage or to any part of such property. Paragraphs (a), (b), (c) and (d) of s. 6(2) contain a number of sets of circumstances which, either alone or in any combination, will result in "identified property" situated within a State being property in relation to which a proclamation can be made under s. 6(3). Some, and possibly all, of those sets of circumstances are such as would give rise to a power in the Commonwealth Parliament to legislate, under the Constitution, to protect and conserve "identified property" in respect of which the specified circumstances exist. At least one of the sets of circumstances which would give rise to such a power exists in respect of both the whole and any part of the Wilderness National Parks, namely, that contained in s. 6(2)(b): "identified property", within a State, which is property of which the protection or conservation by Australia is a matter of international obligation under the terms of the Convention. It is unnecessary to decide whether all of the other sets of circumstances contained in s. 6(2)(a), (b), (c) and (d) would give rise to a corresponding legislative power since the subsection could be read down, pursuant to the provisions of s. 15A of the Acts Interpretation Act 1901 (Cth), to exclude any of them which would not.
Two points should be made about s. 6(2). The first is that the range of possible property which might satisfy one or other of the specified sets of circumstances is all but unlimited. It might, for example, include a monument, a sculpture, a painting, an inscription, a building, a geological or physiographical formation, a particular site or a defined area of land (Convention, Arts. 1 and 2). It might constitute cultural heritage or natural heritage or, conceivably, both. It might be small in size or, as in the case of the Wilderness National Parks, be measured in hundreds of thousands of hectares. It might be owned by the Crown in right of a State or by a private individual. The range of the possible nature and source of damage or likely damage and the range of the appropriate means for combating such damage or likely damage to such property are as vast as is the range of possible property. The second point is that the Act does not entitle the Commonwealth to assume control of identified property merely because of the existence of any one or more of the sets of circumstances specified in s. 6(2) in relation to it. A list of the properties which would, at least arguably, qualify for inclusion in Australia's natural and cultural heritage would plainly be a formidable one and would include some very large areas of land. Already, Lord Howe Island and the Barrier Reef are included, with the Wilderness National Parks, in the World Heritage List. To take substantial control of all properties which might satisfy the provisions of s. 6(2) regardless of the existence or nature of likely damage would lack any reasonable proportionality to the purpose of discharging the obligation or attaining the objective of protection and conservation of such properties.
Section 6(3) of the Act 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. Paragraphs (a) to (g) (inclusive) of s. 9(1) prohibit a very wide range of acts ranging from carrying out excavation work or using explosives to damaging a tree or constructing a vehicular track. In combination, they would effectively prevent any real development or improvement of land to which they applied. the Act provides that, in determining whether to give a consent pursuant to s 9, the Minister shall have regard "only" to the protection, conservation and presentation, within the meaning of the Convention, of the property. It would seem to follow that consent to the doing of any of the specified acts can only be obtained if the doing of them would be positively conducive to the "protection, conservation and presentation" of the relevant property.
The overall effect of s. 13(1) is that all of the prohibitions contained in paragraphs (a) to (g) (inclusive) of s. 9(1) are automatically imposed in respect of any property which is proclaimed by the Governor-General pursuant to s. 6(3) regardless of their appropriateness for the purpose of protecting or conserving the property and regardless of whether any relationship at all exists between all or any of the prohibited acts and the nature and source of likely damage to the property. In these circumstances, there is a lack of any reasonable proportionality between the provisions of s. 9(1)(a) to (g) and the purpose of protecting and conserving the relevant property. Those paragraphs are not capable of being reasonably considered to be appropriate and adapted to achieving that purpose. Since it is the purpose of protecting and conserving the property and thereby complying with the obligations under the Convention (or achieving one of the other international objectives referred to in s. 6(2)(a), (b), (c) and (d) that is said to warrant characterization as a law with respect to external affairs, it follows that, in that absence of the necessary relationship with that purpose, paragraphs (a) to (g) (inclusive) of the Act cannot be sustained by s. 51(xxix). They are invalid.
Section 9(1)(h) and s. 9(2) are in a different category. Paragraph (h) of s. 9(1) prohibits the doing, without the consent of the Minister, of an act which is prescribed for the purposes of the paragraph in relation to particular property to which s. 9 applies. The power to prescribe such acts is vested in the Governor-General by s. 21. It is not an arbitrary power and must be construed in its context. It is exercisable only in respect of property which has been prescribed by the Governor-General pursuant to s. 6(3) upon his being satisfied that the property is being or is likely to be damaged or destroyed. In that context and in the context of s. 6(2), the power to prescribe an act for the purposes of paragraph (h) is limited by the purpose for which it exists, namely, the purpose of preventing or avoiding damage or further damage to or destruction of the particular property, and is exercisable only in relation to an act which could reasonably be considered to be a possible cause of, or a contributing factor to, such damage or further damage or destruction (see Re Toohey; Ex parte Northern Land Council (1981), 56 ALJR 164, at pp. 173, 177, 183, 201 and 208-209). Section 9(2) provides that, except with the consent in writing of the Minister, it is unlawful for a person to do any act, not being an act the doing of which is unlawful by virtue of sub-s. (1), that damages or destroys any property to which the section applies.
Section 9(1)(h) and (2) are, by reason of the provisions of s. 15A of the Acts Interpretation Act 1901, severable from the invalid provisions of paragraphs (a) to (g) (inclusive) of s. 9(1)(h) are capable of being considered as appropriate and adapted to the purpose of discharging the international obligation under the Convention to protect or conserve the relevant property. That being so and subject to any general constitutional limitations, including whether "just terms" were required or provided, they are within the legislative competence of the Parliament pursuant to the Constitution.
It was submitted, by Tasmania, that the relevant provisions of the Act are not within s. 51(xxix) because, to the extent that they represent implementation of the Convention, that implementation is partial only. It should be apparent from what has been said that I do not accept the proposition that a law under s. 51(xxix) for the carrying into effect of a treaty or for the discharge of treaty obligations must, as a condition of validity, carry into effect the whole treaty or completely discharge all the obligations. It is competent for the Parliament, in a law under s. 51(xxix), partly to carry a treaty into effect or partly to discharge treaty obligations leaving it to the States or to other Commonwealth legislative or executive action to carry into effect or discharge the outstanding provisions or obligations or leaving the outstanding provisions or obligations unimplemented or unperformed. On the other hand, if the relevant law "partially" implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterized as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty. That was the position in Burgess' Case where, as Latham C.J. pointed out (at p. 646), some of the regulations were "in conflict with fundamental principles of the convention". The relevant provisions of the Act and s. 69 of the National Parks Act do not fall within that category in that they do not conflict with the provisions of, or obligations assumed by Australia under, the Convention.
(iii)The Corporations Power: Act, sections 7 and 10
The grant of power contained in the Constitution is to make laws with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. It is now well settled that that grant is a plenary grant which, like the other grants contained in s. 51, must be given a liberal construction. In particular, it must not be read down by reference to any presumption that the various grants of power contained in s. 51 should be construed as being mutually exclusive; see the cases cited by Professor Zines, The High Court and the Constitution (1981), at pp. 18-21, and, in particular, Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 CLR 468 , at p. 510, per Menzies J., rejecting the assumed dichotomy between the grant of legislative power upon which Higgins J. "based" his decision in Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1909), 8 CLR 330 .
It was submitted, on behalf of Tasmania, that the power to legislate with respect to trading corporations should be construed as being restricted to a power to make laws with respect to the trading activities of trading corporations. On that approach, a statute, which was entitled "An Act with respect to Trading Corporations formed within the limits of the Commonwealth" and which regulated and controlled, in separate sections, the general activities of trading corporations, would be a law with respect to trading corporations in its application to their trading activities and would not be a law with respect to trading corporations in its application to their nontrading activities. In other words, to the extent that a law prohibited trading corporations from engaging in activities which were appropriate to their character, it would be a law with respect to trading corporations but to the extent to which it prohibited trading corporations from engaging in activities which were, or might be, inappropriate to that character, it would not be a law with respect to trading corporations. I find it more than difficult to accept that such a construction of s. 51(xx) accords with the well-established principle that constitutional grants of legislative power should be construed expansively rather than pedantically.
Examination of the words and structure of s. 51(xx) discloses no reason in language or in principle of legal interpretation why the power to legislate with respect to trading corporations should be given such a restricted meaning. The paragraph contains no mention at all of trading activities. Three specified types of corporation are made the subject of the one grant of legislative power. It could not be seriously suggested that the power to legislate with respect to foreign corporations should be confined to a power to legislate with respect to their foreign activities. Consistency would support the approach that the power to legislate with respect to trading or financial corporations formed within the limits of the Commonwealth should not be artificially confined to the trading or the financial activities of such corporations.
Nor, in my view, is there any reason in logic or history for so confining the grant of legislative power contained in s. 51(xx). No one with knowledge of the political and other non-trading activities of trading corporations in and since the days of the East India Company would suggest that the non-trading activities of trading corporations are any less appropriate to be placed under the legislative control of a national government than are their trading activities. Nor is it realistic to treat the trading activities of a trading corporation as compartmentalized and isolated from its non-trading activities. The trading activities and the non-trading activities are likely to be conducted in the context of overall corporate strategy and financial planning and restraints. Their viability and financial stability are likely to be interdependent. Power and success on one side are likely to contribute to power and success on the other. Failure on one side is likely to involve failure of the whole. In my view, the legislative power conferred by s. 51(xx) is not restricted to laws with respect to trading corporations in relation to their trading activities. It is a general power to make laws with respect to trading corporations.
As has been said, it is settled law that there is no general dichotomy between the grants of legislative power contained in the various paragraphs of s. 51. It is also settled that a single law can possess more than one character. It suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth power. In determining validity, the task is not to single out the paramount character. It suffices that the law "fairly answers the description of a law 'with respect to' one given subject matter appearing in s 51" regardless of whether it is, at the same time, more obviously or equally a law with respect to other subject matter; see Actors & Announcers Equity v. Fontana Films Pty Ltd (1982), 56 ALJR 366, at p 375.
A law which applied only to cobblers (identified by reference to their trade) and prohibited them from engaging in certain activities away from their lasts could not properly be characterized as a law with respect to the boot-making activities of cobblers; it could, however, properly be characterized both as a law with respect to cobblers and as a law with respect to the prohibited activities. Likewise, a law which applies only to trading corporations (identified by reference to their character as such) and prohibits them from engaging in certain non-trading activities cannot properly be characterized as a law with respect to the trading activities of trading corporations; it can, however, properly be characterized both as a law with respect to trading corporations and as a law with respect to the prohibited activities. Indeed, the position is plainer in the case of the trading corporation than in the case of the cobbler for the reason that one can readily isolate the non-trading activities of the cobbler from his boot-making work in a manner in which it is quite impossible to isolate the non-trading activities of a trading corporation from its trading activities.
the Act is directed only to foreign corporations, corporations incorporated in a Territory and trading corporations incorporated within the limits of the Commonwealth (other than in a Territory). In the context of 7, it provides that those three specifically identified types of corporation shall not, without the Minister's consent, perform certain acts on property which forms, or is declared by regulation to form, part of Australia's cultural or natural heritage and which the Governor-General, being satisfied that the property is being or is likely to be damaged or destroyed, has declared to be property to which s. 10 applies. The acts prohibited are either acts which could have some physical effect on the property or acts which are particularly identified, by proclamation, in respect of a specific property.
In so far as trading corporations are concerned, the effect of s. 10(2) is to impose a prohibition by reference to their character as trading corporations. As I followed the argument, it was not disputed that, if the prohibited acts were limited to acts performed by a trading corporation in and for the purposes of its trading activities, the law prohibiting trading corporations from engaging in those activities could properly be characterized, for the purposes of s. 51(xx), as a law with respect to trading corporations. In effect, the submission against the validity of s. 10(2) was to the effect that a law which prohibits trading corporations, by express reference to their character as such, from engaging in certain activities will or will not be a law with respect to trading corporations according to whether or not the prohibited activities are trading or non-trading activities. For reasons which I have already given, I do not accept that submission.
The provisions of s. 10(1) and (2), in their application to trading corporations, are properly to be characterized both as a law with respect to activity on endangered property associated with Australia's cultural or natural heritage and as a law with respect to trading corporations. Subject to any general constitutional limitation, including any question of "just terms", they are within the legislative power conferred by s. 51(xx) of the Constitution. A similar conclusion applies in relation to the Act which provides that, except with the consent of the Minister, it is unlawful for a trading corporation (or a foreign or Territory corporation) to do any other act that damages or destroys identified property which is the subject of a proclamation under s. 10(4) is also a valid law under s. 51(xx).
I would mention that nothing in the foregoing should be construed as suggesting that a law comes within the power conferred by s 51(xx) "simply because" it happens to apply to corporations of the kind described in that paragraph; see Actors & Announcers Equity v. Fontana Films Pty. Ltd. at p. 370. Strickland v. Rocla Concrete Pipes Ltd. makes clear that that is not so. The provisions of s 10(2) and (3) do not "simply happen" to apply to foreign, trading and Territory corporations. They are laws which apply to foreign, trading and Territory corporations by reference to their character as such and whose operation is restricted to the regulation and control of activities of such corporations. I would also mention that it does not necessarily follow from the foregoing that every law which commences "a trading corporation shall" or "a trading corporation shall not" is a law with respect to trading corporations for the purposes of s. 51(xx). That is a question which does not arise in the present case and it is unnecessary to express any view in relation to it.
(iv) Laws with respect to the people of any race: Act, sections 8 and 11
The Constitution, as originally adopted, contained but two references to Australian Aboriginals. Both were dismissive. Section 51(xxvi), in its original form, empowered the Parliament to make laws with respect to "(t)he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws". Section 127 was an enigmatic directive that "(i)n reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted". By alteration of the Constitution effected pursuant to a referendum held on 27th May, 1967, the words "other than the aboriginal race in any State" were deleted from s. 127 was deleted in its entirety. Since then, the Constitution has contained no express reference at all to the people of the Aboriginal race.
As Professor Sawer comments ("The Australian Constitution and the Australian Aborigine", (1966-67), 2 F.L.Rev. 17), the architects of the Constitution paid no attention at all to the position of the Aboriginal people of Australia. Their express exclusion from the provisions of s. 51(xxvi) could not be attacked as adversely discriminatory since that grant of power was primarily seen as a power to permit adverse discrimination against the people of a particular race rather than as a power to pass a law for the benefit or protection of such people; see Professor Harrison Moore, The Constitution of the Commonwealth of Australia, (2nd ed. 1910), at p. 464. As it became increasingly clear that Australia, as a nation, must be diminished until acceptable laws be enacted to mitigate the effects of past barbarism, the exclusion of the people of the Aboriginal race from the provisions of s. 51(xxvi) came to be seen as a fetter upon the legislative competence of the Commonwealth Parliament to pass necessary special laws for their benefit. The referendum of 27th May, 1967, deleting the reference in s. 51(xxvi) and deleting s. 127 altogether, was carried by an overwhelming majority of the voters in every State of the Commonwealth. The power conferred by s. 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race. Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race.
Section 8(3) of the Act provides that where the Governor-General is satisfied that an "Aboriginal site" is being or is likely to be damaged or destroyed or that any artifacts or relics situated on an "Aboriginal site" are being or are likely to be damaged or destroyed, he may, by Proclamation, declare that site to be a site to which s. 11 applies. Section 8(2) provides that a reference in the section to an "Aboriginal site" is a reference to a site that is, or is situated within, "identified property" and "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". It follows that the power of the Governor-General to declare a site to be a site to which s. 11 applies is restricted to a site which is, or has been declared to be, part of Australia's cultural or natural heritage and which is of particular significance to the people of the Aboriginal race.
Section 11(1) of the Act provides that, except with the consent in writing of the Minister, it is unlawful for a person to do a variety of things on a site declared to be a site to which the section applies. The prohibited acts consist of acts of a kind which are likely to have some physical effect upon a site or acts prescribed for the purpose of s. 11 in relation to a particular site. Section 11(2) prohibits the doing, without the consent of the Minister, of any other act which damages or destroys, or is likely to result in damage to or the destruction of, a declared site. Section 11(3) provides that, except with the consent in writing of the Minister, it is unlawful for a person to do any act preparatory to the doing of an act that is unlawful by virtue of sub-s. (2).
It is unnecessary, for the purposes of the present case, to consider the meaning to be given to the phrase "people of any race" in s. 51(xxvi). Plainly, the words have a wide and non-technical meaning; see, for example, King-Ansell v. Police, (1979) 2 N.Z.L.R. 531; Mandla v. Dowell Lee, (1983) 2 W.L.R. 620 . The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par. (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By "Australian Aboriginal" I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal. While it is unnecessary to express a concluded view on the matter, the reference in s. 8(2)(b) of the Act would appear to be a reference to the Australian Aboriginal people generally rather than a reference to any particular racial sub-group.
The validity of a declaration under s. 8(3) is dependent upon the existence of a number of objective facts. The site must be, or be situated within, "identified property". The protection or conservation of that site must be of particular significance to the people of the Aboriginal race. There is a dispute between the Commonwealth and Tasmania as to whether those conditions are satisfied in the present case which may need to be subsequently resolved if it be held that ss. 8 and 11 are valid laws of the Parliament. For present purposes, it is to be assumed that the conditions are in fact satisfied. The immediate question is whether the provisions of ss. 8 and 11 can properly be characterized as laws with respect to the people of any race for whom it is deemed necessary to make special laws.
Mr. Gleeson Q.C., who argued this aspect of the case on behalf of Tasmania, submitted that the provisions of ss. 8 and 11 were not within the legislative power conferred by s. 51(xxvi) for the reason that they were not a "special law" for the people of the Aboriginal race and for the additional reason that their character was not that of a law with respect to the people of that race. By definition, it was said, an "Aboriginal site" must be "identified property" and, therefore, it must be of outstanding universal significance: a law for the protection and conservation of sites if, and only if, they are of significance to the whole of mankind is the antithesis of a special law for the people of a particular race. In so far as the character of the law is concerned, it was submitted that a law which addresses no command either to Aboriginals as such or to other people in regard to their dealings with Aboriginals cannot properly be characterized as a law with respect to the people of the Aboriginal race.
The relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life. Past violations of Aboriginal culture and of Aboriginal life, both traditional and otherwise, have not obliterated the fundamental importance to the Aboriginal people of Australia of their ancient sites. To the contrary, one effect of the years since 1788 and of the emergence of Australia as a nation has been that Aboriginal sites which would once have been of particular significance only to the members of a particular tribe are now regarded, by those Australian Aboriginals who have moved, or been born, away from ancient tribal grounds, as part of a general heritage of their race. The dual requirement that a declaration can only be made in respect of a site if it is both "of outstanding universal value" and "of particular significance to the people of the Aboriginal race" means that only those Aboriginal sites which are of extraordinary significance qualify for protection and conservation under ss. 8 and 11. A law protecting such sites is, in one sense, a law for all Australians. It appears to me however, on any approach to language, that a law whose operation is to protect and preserve sites of universal value which are of particular importance to the Aboriginal people is also a special law for those people.
The question remains whether the provisions of ss. 8 and 11 are within the scope of the grant of the legislative power to make laws with respect to the people of any race. In approaching that question, one should bear in mind the well-known words of Dixon C.J., McTiernan, Webb and Kitto JJ. in Grannall v. Marrickville Margarine Pty. Ltd. (1955), 93 CLR 55 , at p. 77, where, speaking of the grant of legislative power contained in s. 51(i) of the Constitution, their Honours remarked that the words "with respect to" should never be neglected in considering the extent of legislative power conferred by s 51 for the reason that what they require is a relevance to or connection with the subject assigned to the Commonwealth Parliament" (emphasis added). Their Honours commented that that was something "very different" from the strict "criterion of operation" test which had been employed in the exposition of the Constitution. They continued:
"In the next place, every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter."
The characterization of a law for the purposes of s. 51 of the Constitution is not an unrealistic or pedantic procedure to be performed by extracting the words that constitute the heart of the legislative power from their context in a plenary grant of power and then proceeding to the abstract question of whether the appropriate description of the impugned law is a law with respect to the extracted words. It is a task to be discharged with regard to substance and with reference to the full scope of the grant of legislative power. As has been previously mentioned, it is settled that a law may exhibit a number of characters and that, provided one of the characters comes within the ambit of the grant of legislative power, the law is within power. Thus, it was recently held by this Court (Actors & Announcers Equity v. Fontana Films Pty. Ltd.) that a law which directed no command to trading corporations but which was concerned with the protection of their trading activities was a law with respect to trading corporations. Viewed as a matter of substance, a special law which protects the persons or the property or the activities of Aboriginal people is not only a law with respect to the prohibited actions against such persons, property or activities. It is also a law with respect to people of the Aboriginal race. Indeed, so much was rightly conceded in argument. In my view, a law which protects those - and only those - endangered Aboriginal sites included in the "cultural heritage" which satisfy the requirement that they are of particular significance to people of the Aboriginal race is not only a law with respect to Aboriginal sites. It is a law of the character which comes within the primary scope of the grant of legislative power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. The reference to "people of any race" includes all that goes to make up the personality and identity of the people of a race; spirit, belief, knowledge, tradition and cultural and spiritual heritage. A power to legislate "with respect to" the people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of particular significance to that spiritual and cultural heritage. Subject to any general constitutional restriction and any question of "just terms", 11 of the Act are within the legislative power conferred upon the Parliament by s. 51(xxvi).
Regulations and Proclamations
(i) World Heritage (Western Tasmania Wilderness) Regulations (the Wilderness Regulations)
The World Heritage (Western Tasmania Wilderness) Regulations are dated 30th March, 1983. They were made by the Governor-General in intended exercise of the regulation-making power conferred by s. 69 of the National Parks Act. They apply to areas of land containing a total of 14,125 hectares or thereabouts. This land (the HEC land) had formerly been included in one of the three parks which are proclaimed State reserves pursuant to the National Parks and Wildlife Act 1970 (Tas.) and which together comprise the Wilderness National Parks.
The HEC land was excised from the relevant National Park (the Franklin-Lower Gordon Wild Rivers National Park) as from 2nd September, 1982, by Proclamation made under s. 16(1) of the National Parks and Wildlife Act 1970. By that Proclamation, it was provided that a further area of 780 hectares (the future HEC land) would be excised from that Park as from 1st July, 1990. By a Proclamation made on 7th September, 1982, under the Hydro-Electric Commission Act 1944 (Tas.), the HEC land was vested in the Hydro-Electric Commission of Tasmania (the HEC) for the purposes of that Act as from 16th September, 1982, and it was provided that the future HEC land would vest in the HEC on 2nd July, 1990. By the Gordon River Hydro-Electric Power Development Act 1982 (Tas.), the HEC is authorized to construct a hydro-electric power scheme in south-west Tasmania including the proposed dam. The HEC has, on the HEC land, commenced construction of the works involved in that power scheme and the dam.
Regulation 5 of the Wilderness Regulations prohibits any person, without the consent of the Minister, doing a number of specified acts in the area to which the Regulations apply. The prohibited acts include the construction of a dam or associated works and "any act in the course of, or for the purpose of, the construction of a dam or associated works". They also include a variety of other specific acts of a kind which would be likely to have a physical effect on the land. Finally, they include the carrying out of "any other works".
As has been seen, the power conferred upon the Governor-General by s. 69(1) of the National Parks Act is, for present purposes, a power to "make regulations for and in relation to giving effect" to the Convention. It is at least as wide as the regulation-making power which was upheld in Burgess' Case (that is, "for the purpose of carrying out and giving effect to the convention"). The judgments in Burgess' Case and Poole (No. 2) make clear that such a power includes both the taking of whatever steps are involved in the mechanical execution of the terms of the Convention and the making of provisions which reflect discretionary decisions as to the means of ensuring that obligations under the Convention are honoured and that the provisions of the Convention are observed. An example of such a provision is the imposition of a penalty for non-observance of a prohibition imposed for the purpose of carrying out the Convention.
In Poole (No. 2), at pp. 654-655, Evatt J. summarized the various tests which had been suggested by members of the Court in Burgess' Case for determining whether any particular regulation or series of regulations should be regarded as having been made for the purpose of carrying out or giving effect to the Aerial Navigation Convention in that case. His Honour concluded that there was "no substantial difference" between those tests. They included the requirement of "a faithful pursuit of . . . a carrying out of the external obligation" (per Dixon J.) and a requirement that the regulations must be "sufficiently stamped with the purpose of carrying out the terms of the Convention" (per Evatt and McTiernan JJ.). The Wilderness Regulations are plainly directed to protecting and conserving the land to which they relate which is part of the area which has been listed on the World Heritage List pursuant to Australia's nomination. As has been said, it is not for this Court to determine what is the appropriate method of achieving the objective under the Convention to protect and conserve that land. The Regulations will survive the above-mentioned tests if they are capable of being reasonably considered to be appropriate and adapted to the protection and the conservation of the HEC land in accordance with Australia's obligations under the Convention to protect and conserve the Wilderness National Parks.
The restrictions imposed by the Wilderness Regulations on the use, without the Minister's consent, of the HEC land are extremely wide. They would prevent any real development of that land. If such restrictions had been purportedly imposed in respect of the whole of the Wilderness National Parks, I would have had little hesitation in concluding that they displayed such a lack of proportionality as to render them incapable of being reasonably considered appropriate for the discharge of Australia's obligations under the Convention. As has been seen however, they are restricted in their operation to the area of land which has already been vested in the HEC for the purpose of the construction of the dam and associated works. With some hesitation, I have come to the view that, in a situation where the HEC land is the central site of the proposed power scheme which will undoubtedly have a far-reaching physical effect, particularly in relation to the surrounding land, the restrictions imposed are capable of being reasonably considered appropriate and adapted to the protection and preservation of the HEC land and the adjoining areas of the Wilderness National Parks.
I therefore conclude that, subject to the effect of any general constitutional limitations including any question of "just terms", the Wilderness Regulations are within the regulation-making power conferred by s. 69(1) of the National Parks Act.
(ii) World Heritage Properties Conservation Regulations (S.R. 1983 No. 65) and Proclamations
The World Heritage Properties Conservation Regulations were made under the Act. Regulation 2 declared that the Wilderness National Parks and an area adjacent to the Franklin and Gordon Rivers which includes the dam site (the Franklin natural area) form part of the natural heritage. Regulation 3 declared that a specific area of the Franklin-Lower Gordon Wild Rivers National Park which is adjacent to the Franklin River (the Franklin cultural area), Kutikina and Deena Reena Caves and all other archaeological sites within the Franklin cultural area form part of the cultural heritage. The effect of those declarations was that the Wilderness National Parks and the relevant sites were "identified property" pursuant to s. 3(2)(a)(ii) of the Act. By ten Proclamations made on 26th May, 1983, the Governor-General declared a number of areas and sites as property to which ss. 9, 10 or 11 of the Act applied. The Franklin-Lower Gordon Wild Rivers National Park, as it stood before the excision of the HEC land, was declared as property to which s. 9 applied. Two areas, being that part of the Franklin natural area and that part of the Franklin cultural area within the HEC land and the HEC future land, were declared as properties to which both ss. 9 and 10 applied. Kutikina Cave and Deena Reena Cave were declared as property to which ss. 9, 10 and 11 applied. An open archaeological site within the Franklin cultural area was declared as property to which ss. 9 and 11 applied.
The validity of these Proclamations depends upon the validity of the provisions of the Act in intended pursuance of which they were made. If any of ss. 6, 7 or 8 of the Act is held to be invalid by reason of a failure to provide for just terms or for any other reason, the Proclamations made thereunder will fail. The validity of the declaration of sites for the purposes of s. 11 will also depend upon whether the sites in question satisfy the requirement of being of particular significance to the people of the Aboriginal race.
(iii) World Heritage Properties Conservation Regulations (Amendment)(S.R. 1983 No. 67)
The World Heritage Properties Conservation Regulations (Amendment) are also dated 26th May, 1983. They were made in intended pursuance of the regulation-making power conferred by the Act (s. 21(1)(a)) and prescribe acts for the purposes of ss. 9(1)(h), 10(2)(m) and 11(1)(j) which respectively prohibit the doing, without the Minister's consent, of particular acts prescribed for the purpose of the relevant paragraph in respect of specific properties. The particular acts which were prescribed for the purposes of ss. 9(1)(h) and 10(2)(m) apply in relation to that part of the Franklin cultural area which is within the HEC land and the HEC future land, the Kutikina and Deena Reena Caves and the open archaeological site. The prescribed acts for the purposes of s. 11(1)(j) of the Act apply in relation to these two Caves and the open archaeological site. In each instance, the prescribed acts are as follows:
"
- (a)
- carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that relevant property (or site) or of any part of that relevant property (or site);
- (b)
- carrying out works preparatory to the construction of such a dam;
- (c)
- carrying out works associated with the construction or continued construction of such a dam."
The power to prescribe acts for the purposes of ss. 9(1)(h), 10(2)(m) and 11(1)(j) must be exercised for the purpose for which it is conferred, namely, the protection and conservation of the property in respect of which prohibited acts are prescribed. Plainly, the prescription of the above acts in relation to the two Caves and the open archaeological site satisfied the requirement of being capable of being reasonably considered to be appropriate and adapted to that purpose. The same can, in my view, be said of the prescription of the acts for the purposes of ss. 9(1)(h) and 10(2)(m) in relation to the Franklin cultural area within the HEC land and the future HEC land. If, however, any of ss. 9(1)(h), 10(2)(m) or 11(1)(j) is found to be invalid, the Regulations will to that extent fail.
Constitutional restrictions and limitations
(i) General limitations
A broad submission was developed on behalf of Tasmania to the effect that the Wilderness Regulations and the relevant provisions of the Act and of the Regulations and Proclamations made under the Act "are invalid because they interfere with, inhibit, curtail or impair the legislative and executive functions of the State of Tasmania and the prerogative of the Crown in right of Tasmania in relation to the lands". Mr. Ellicott Q.C., for Tasmania, emphasized that this submission did not involve any attempt to reassemble the pieces of the "exploded" doctrine of the reserve powers of the States. The basis of the submission lies in the principle, to which reference has already been made, that the legislative powers of the Commonwealth are subject to a general limitation that they cannot be exercised in a manner which would be inconsistent with the continued existence of the States and their capacity to function or which would involve a discriminatory attack upon a State in the exercise of its executive authority; see Melbourne Corporation v. The Commonwealth. The question whether that principle should be treated as it would sometimes appear to be, as if it were embodied in the Constitution as an express overriding guarantee is a matter which it is unnecessary to pursue here.
The fact that the Wilderness National Parks comprise more than 11 per cent of the land area of Tasmania provided a setting in which this submission was advanced with an effectiveness that, in my view, does not survive closer scrutiny. The declaration, in Reg. 2 of the Regulations under the Act, of the Wilderness National Parks as part of the natural heritage, which is the only provision which relates to the whole of the Wilderness National Parks, did not involve any operative interference at all with the legislative or executive powers of Tasmania in respect of that land. Nor, in my view, can the actual prohibitions and restrictions which the Act, Regulations and Proclamations impose in respect of more limited areas properly be seen as in any way inconsistent with the continued existence of Tasmania or its capacity to function.
The mere fact that land is Crown land or waste land provides, under the Constitution, no immunity against the paramount legislative powers of the Commonwealth. This is underlined by the express grant of power in s. 51(xxxi) of the Constitution to make laws with respect to the acquisition of property on just terms from any State. The relevant provisions of the Act, Regulations and Proclamations do restrict the legislative and executive powers of Tasmania in that they operate to invalidate any inconsistent Tasmanian law. That is, however, the case with every valid law of the Commonwealth. To that extent, they no doubt "interfere with, inhibit, curtail or impair the legislative and executive functions of the State of Tasmania". They do not however, in any relevant sense, involve "a discriminatory attack" upon the exercise by Tasmania of its executive authority.
(ii) The acquisition of property on just terms: Constitution, section 51(xxxi)
the Constitution expressly deals with the power of the Parliament to make laws with respect to the "acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". It would seem (see R.L. Hamilton, "Some Aspects of the Acquisition Power of the Commonwealth", (1973) 5 F.L. Rev. 265ff) that this head of legislative power was included in the Constitution to remove any room for doubt about the power of the Parliament to make legislative provision for the acquisition of property. It has, however, assumed the status of a constitutional guarantee (see, for example, Minister of State for the Army v. Dalziel (1944), 68 CLR 261 , at pp. 276 and 284-285) not of just terms but against acquisition without just terms. It is settled that the effect of the presence of paragraph (xxxi), with its requirement of "just terms", in s. 51 is that other heads of power, including the incidental power (s 51(xxxix), do not authorize legislation for the acquisition of property; see, for example, Trade Practices Commission v. Tooth & Co. Ltd. (1979), 142 CLR 397 , at pp. 403, 407, 427. It also settled that a law can be a law with respect to the acquisition of property for any purpose in respect of which the Parliament has power to make laws notwithstanding that the acquisition is not by the Commonwealth; see McClintock v. The Commonwealth (1947) 75 CLR 1 , at pp 23 and 36; PJ Magennis Pty. Ltd. v. The Commonwealth (1949), 80 CLR 382 , at p. 401.
There are two obvious limitations to the proposition that the other paragraphs of s. 51 do not authorize a law with respect to the acquisition of property; see per Dixon C.J. in Attorney-General (Cth) v. Schmidt (1961), 105 CLR 361 , at p. 372. They are related. The first is that some laws which are plainly authorized under other heads of power necessarily involve the acquisition of property for the purposes of the Commonwealth: the compulsory payment of tax, the forfeiture of prohibited imports and the sequestration of the property of a bankrupt are obvious examples. The second is that the proposition "does not apply except with respect to the ground actually covered by par.(xxxi)" (supra). Unless what the law effects can properly be described as an "acquisition of property", one will not enter the area which has, subject to the first limitation, been made the exclusive domain of s. 51(xxxi).
In Bank of NSW v. The Commonwealth (1948), 76 CLR 1 , at p 349, Dixon J. pointed out that s 51 (xxxi) is "not to be confined pedantically to the taking of title. . . to some specific estate or interest in land recognized at law or in equity. . ., but. . . 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". In the same judgment, at p 350, his Honour was at pains to emphasize that the Constitution did not permit the Parliament to achieve by indirect or devious means what s 51 did not allow to be done directly.
On the other hand,laws which merely prohibit or control a particular use of, or particular acts upon, property plainly do not constitute an "acquisition" of property for purposes of the Commonwealth. Commonly, such laws are of general application and apply to property by reason of its being property of a particular description or by reference to the nature of the use or act prohibited or controlled. While a law which restricts or controls the use or enjoyment of property by means of specific identification of the property effected comes closer to the area of acquisition of property, it is, as a matter of ordinary language, impossible to say that there has been any acquisition of property if all that is involved is restriction of what can be done upon it; see, for example, Belfast Corporation v. O.D. Cars Ltd., (1960) AC 490 The mere extinguishment or deprivation of rights in relation to property does not involve acquisition.
Difficult questions can arise when one passes from the area of mere prohibition or regulation into the area where one can identify some benefit flowing to the Commonwealth or elsewhere as a result of the prohibition or regulation. Where the benefit involved represents no more than the adjustment of competing claims between citizens in a field which needs to be regulated in the common interest, such as zoning under a local government statute, it will be apparent that no question of acquisition of property for a purpose of the Commonwealth is involved. Where, however, the effect of prohibition or regulation is to confer upon the Commonwealth or another an identifiable and measurable advantage or is akin to applying the property, either totally or partially, for a purpose of the Commonwealth, it is possible that an acquisition for the purposes of s. 51(xxxi) is involved. The benefit of land can, in certain circumstances, be enjoyed without any active right in relation to the land being acquired or exercised; see, for example, Council of the City of Newcastle v. Royal Newcastle Hospital (1957), 100 CLR 1 . Thus, if the Parliament were to make a law prohibiting any presence upon land within a radius of 1 kilometre of any point on the boundary of a particular defence establishment and thereby obtain the benefit of a buffer zone, there would, in my view, be an effective confiscation or acquisition of the benefit of use of the land in its unoccupied state notwithstanding that neither the owner nor the Commonwealth possessed any right to go upon or actively to use the land affected.
In Trade Practices Commission v. Tooth & Co. Ltd, at pp.414-415, Stephen J. Referred to the distinction which has been recognized in the United States between the regulation of proprietary rights and the taking of property; see, for example, Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978), at pp. 123-128 and 139-146. After referring to the differences between the United States Fifth Amendment and s. 51(xxxi) of the Australian Constitution, his Honour quoted, as of "some guidance in the Australian context", the following passage from 29A Corpus Juris Secundum ("Eminent Domain", par. 6):
"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."
Stephen J. continued:
"On the one hand, many measures which in one way or another impair an owner's exercise of his proprietary rights will involve no 'acquisition' such as pl. (xxxi) speaks of. On the other hand, far reaching restrictions upon the use of property may in appropriate circumstances be seen to involve such an acquisition. That the American experience should provide guidance in this area is testimony to the universality of the problem sooner or later encountered wherever constitutional regulation of compulsory acquisition is sought to be applied to restraints, short of actual acquisition, imposed upon the free enjoyment of proprietary rights. In each case the particular circumstances must be ascertained and weighed and, as in all questions of degree, it will be idle to seek to draw precise lines in advance."
I agree with Stephen J.'s approach and propose to adopt a similar approach in the present case. I turn to consider the effect of the relevant provisions of the Act, Regulations and Proclamations.
It is apparent that there has been no acquisition by the Commonwealth of the whole of the Wilderness National Parks. The declaration of those Parks as part of the natural heritage has the effect that they are "identified property" for the purposes of the Act in the twofold sense that they come within (a)(ii) as well as (a)(i) of the definition contained in s. 3(2) of the Act. That declaration did not, however, impose any operative restriction upon Tasmania's or the HEC's interest in or control of land constituting those Parks. A similar comment can be made as regards the declarations that each of the designated area of the Franklin-Lower Gordon Wild Rivers National Park, Kutikina and Deena Reena Caves and the other archaeological sites form part of the cultural heritage.
Nor, in my view, did the proclamation of the Franklin-Lower Gordon Wild Rivers National Park, those parts of the Franklin natural area and the Franklin cultural area within the HEC land and the future HEC land, the two Caves and the open archaeological site as property to which s. 9 of the Act applied and the prescription of the prohibited acts for the purposes of s. 9(1)(h) in respect of that part of the cultural area, those Caves and that site constitute an acquisition of either the land, the Caves or the site for the purposes of s. 51(xxxi). The only prohibited acts under the valid provisions of s. 9(see above) are acts done, without the consent of the Minister, involving damage to or destruction of the relevant property or the carrying out of works in the course of preparatory to, or associated with, the construction or continued construction of a dam. Those restrictions upon the use of property are, particularly in the circumstances of the present case, far from insignificant. They do not, however, enter the area of acquisition of property.
The proclamation of the parts of the Franklin natural and cultural areas and the two Caves as property to which s. 10 applied, coupled with the prescription of acts for the purposes of s. 10(2)(m) in respect of that part of the cultural area, the Caves and the open archaeological site, had the effect that trading, financial and Territory corporations were prohibited from doing a wide variety of acts on the relevant land without the Minister's consent. The acts varied from acts associated with the construction of a dam to a wide variety of acts which would be involved in development and, possibly, improvement of the land. The limited nature of the restriction upon activity (that is, a prohibition addressed only to corporations of the three types), even in a context where the owner of some and the future owner of the rest of the land (the HEC) is a trading corporation, precludes the imposition of the restrictions effected by the Proclamation from constituting an acquisition of property.
The difficult problem, in relation to s 51(xxxi), arises in relation to the making of the Wilderness Regulations in respect of the HEC land and in respect of the declaration of the Caves and archaeological site as property to which the provisions of s. 11 apply. It is convenient to consider the question of the effect of the Wilderness Regulations on the HEC land first.
As has been seen, the Wilderness Regulations prohibit, in the absence of the Minister's consent, a wide variety of specific activities culminating in a general prohibition of "any other works". Their purpose is, in accordance with Australia's obligations under the Convention, to protect and conserve the land as part of the cultural or natural heritage. They effectively preclude development and what would, in an ordinary context, be described as "improvement" of the land without the Minister's consent: no building or other substantial structure can be erected; no tree can be cut down or removed; no vehicular track can be established; no works can be carried out. The Regulations apply indefinitely. The land remains vested in the HEC. The HEC, however, is not only prohibited, in the absence of a consent which there is every reason to believe will not be forthcoming, from building the proposed dam; it is, without such consent, effectively excluded from putting the land to any active use at all.
If the Commonwealth could, in these circumstances, be seen as gaining for itself a material benefit of a proprietary nature from the restrictions imposed in respect of the HEC land, I would have no hesitation in concluding that there had been an acquisition of property for the purposes of the Commonwealth. With some hesitation, I have come to the view that the absence of any material benefit of that nature does not, in the circumstances of the present case, avoid the conclusion that there has been such an acquisition. The Commonwealth has, by the Wilderness Regulations, brought about a position where the HEC land is effectively frozen unless the Minister consents to development of it. On its own case in this Court, it has brought about that position for the purpose of fulfilling its international obligations under the Convention. On its own case, it has set out to protect and conserve the HEC land as a natural park. If there were any reason in principle to prevent the achievement of that objective, by the imposition of restrictions, constituting an acquisition of property, the safeguard of s. 51(xxxi) would be ineffective to preclude the Commonwealth from effectively dedicating the property of others to its purposes without compensation whenever such dedication could be achieved by the imposition of carefully worded restrictions upon an owner's use and enjoyment of his land. In my view, there is no such reason in principle. The benefit of a restrictive convenant, which prohibits the doing of certain acts without consent and which ensures that the burdened land remains in a state which the person entitled to enforce the covenant desires to have preserved for purposes of his own, can constitute a valuable asset. It is incorporeal but it is nonetheless property. There is no reason in principle why, if "property" is used in a wide sense to include "innominate and anomalous" interests, a corresponding benefit under a legislative scheme cannot, in an appropriate case, be regarded as property.
In the present case, the Commonwealth has, under Commonwealth Act and Regulations, obtained the benefit of a prohibition, which the Commonwealth alone can lift, of the doing of the specified acts upon the HEC land. The range of the prohibited acts is such that the practical effect of the benefit obtained by the Commonwealth is that the Commonwealth can ensure, by proceedings for penalties and injunctive relief if necessary, that the land remains in the condition which the Commonwealth, for its own purposes, desires to have conserved. In these circumstances, the obtaining by the Commonwealth of the benefit acquired under the Regulations is properly to be seen as a purported acquisition of property for a purpose in respect of which the Parliament has power to make laws. The "property" purportedly acquired consists of the benefit of the prohibition of the exercise of the rights of use and development of the land which would be involved in the doing of any of the specified acts. The purpose for which that property has been purportedly acquired is the "application of the property in or towards carrying out" Australia's obligations under the Convention; see Schmidt, at p. 372. The compensation which would represent "just terms" for that acquisition of property would be the difference between the value of the HEC land without and with the restrictions.
The effect of the declaration of the two Caves and the archaeological site as property to which the provisions of s. 11 apply was only marginally less comprehensive as regards the restriction of the use or development of the land comprised in those sites is concerned. Under s. 11 of the Act, it is unlawful, without the Minister's consent, for any person, including the Crown in right of Tasmania as the owner and the HEC as the future owner, to excavate or to exploit those sites. More importantly for immediate purposes, it is also unlawful, without such consent, to erect any building or substantial structure, to kill or damage any tree or to establish any vehicular track. These are all prohibitions which apply regardless of whether the relevant activity is directed towards the construction of the dam: acts which would be involved in the construction of the dam are, as has been seen, specifically prescribed for the purposes of s. 11(1)(j). The reasoning which leads me to conclude that there has been a purported acquisition of property for the purposes of the Commonwealth by the operation of the Wilderness Regulations on the HEC land leads me also to conclude that there has been a purported acquisition of property for the purposes of the Commonwealth by the operation of the declaration of the Caves and site as land to which s. 11 of the Act applies. The property purportedly acquired consists of the benefit of the prohibition, which the Commonwealth can enforce or relax, of the exercise of those rights of use and development of land which would be involved in the doing of the specified acts. The purpose of the purported acquisition is the protection and conservation of the sites as sites of particular significance to people of the Aboriginal race, that being a purpose which the Parliament is empowered to pursue under the Constitution.
It becomes necessary to consider whether the purported acquisitions were upon just terms as required by s. 51(xxxi). That involves consideration of the complicated provisions of the Act which currently apply both in respect of any acquisition which has resulted from the operation of the Act and in respect of any acquisition which has resulted from the operation of the Wilderness Regulations; see the definition of "Regulations" in s. 17(1) and the repeal, by s. 19(2), of the former Reg. 7 of the Wilderness Regulations. In that regard, it should be mentioned that the argument has proceeded, on all sides, on the basis that the question of "just terms" in relation to the Wilderness Regulations is to be answered by reference to the provisions of s. 17 of the Act and not by reference to the former Reg. 7.
The relevant provisions of the Act are set out in the judgment of the Chief Justice. In summary, their effect is as follows. Where a person (the claimant) considers that the operation of the Act or of the Regulations has resulted in an acquisition of property from him, he may give notice in writing to the Minister requesting the Minister to pay a specified amount of compensation (the claimed amount) in respect of the acquisition (s. 17(3)). If, within three weeks, the Minister gives notice advising that he does not consider that there has been such an acquisition, the claimant may apply to the High Court for a declaration that there has been (s. 17(4)). If the Minister does not give such a notice within three weeks, the operation of the Act or the Regulations shall be taken to have resulted in such an acquisition (s. 17(5)). If the Minister has given such a notice and the High Court subsequently declares that there has been such an acquisition, the Commonwealth is then liable to pay such compensation as is agreed or, failing agreement, "as is determined in accordance with the succeeding provisions of this section" (s. 17(6)). The procedure established for determining the amount of compensation varies according to whether the amount claimed is less than $5 million. If the amount claimed is less than $5 million, the claimant may apply to the Federal Court to "determine the compensation that is fair and just in respect of the acquisition" (s. 17(14)(a)). If the amount claimed is equal to or more than $5 million, the Act establishes a compulsory waiting period of six months in which agreement as to the amount might be reached. After that waiting period without agreement, the Governor-General shall, after fourteen days' notice, establish a Commission of Inquiry (s. 17(7)(b)). The Commission of Inquiry shall, before the expiration of twelve months after its establishment, report in writing to the Governor-General setting out its "recommendation" as to the compensation that is "fair and just in respect of the acquisition" (s. 17(10)). Within three months of the receipt of those recommendations, the Governor-General shall "if the person and the Commonwealth have not reached agreement as to the compensation payable, having regard to the report of the Commission and to such other matters as the Governor-General considers relevant, determine the compensation that the Governor-General considers to be fair and just in respect of the acquisition" (s. 17(12): (emphasis added). If the claimant considers that the amount determined by the Governor-General is not fair and just, he may then apply to the Federal Court to "determine the compensation that is fair and just in respect of the acquisition" (s. 17(14)).
Before proceeding to consider whether the provisions of s. 17 of the Act satisfy the requirement of "just terms", it is convenient briefly to mention a number of relevant matters. First, the Constitution does not confer upon any person an enforceable right to claim just terms in respect of an acquisition of property. The effect of the paragraph is that a law providing for an acquisition of property for the purposes of the Commonwealth otherwise than on just terms is invalid. Secondly, there is no precise definition of the meaning of the phrase "just terms" in s. 51(xxxi). Compensation provided by the Commonwealth for an acquisition may assume a variety of forms any of which would satisfy the requirement of "just terms". It is implicit in s. 51(xxxi) that it is for the Parliament to determine what is the appropriate compensation in respect of an acquisition. If that compensation satisfies the requirement of "just terms", the Court will not declare the terms unjust and the law in excess of power for the reason that the Court entertains an opinion that other terms would have been fairer or more appropriate (see Grace Bros. Pty. Ltd v. The Commonwealth (1946), 72 CLR 269 , at p. 295; Minister of State for the Army v. Dalziel, at p. 291; McClintock v. The Commonwealth, at p. 24). Thirdly, where the Parliament does not specify the amount of compensation but provides a procedure for determining what is fair and just, the Court will examine the nature and extent of the entitlement of a claimant under the procedure established and the nature of the procedure itself in deciding whether the acquisition for which the law provides is "on just terms".
It was not suggested, by any of the parties, that the provisions of s. 17 of the Act should be dissected so as to enable the question whether they provided just terms in respect of an acquisition where the compensation claimed was less than $5 million and the question whether they provided just terms when the compensation claimed was equal to or more than $5 million to be separately considered. The scheme contained in s. 17 is an overall one. If it does not satisfy constitutional requirements in respect of claims equal to or in excess of $5 million, it must fail as a whole. Otherwise, the result would be plainly one which could not have been intended by the Parliament, in that an acquisition would be made unconstitutional by a claimant simply claiming compensation in excess of $5 million or alternatively a claimant would be in a position where he was obliged to claim less than $5 million or enjoy no right to claim compensation at all.
The provisions of s. 17 do not confer any immediate right to be paid compensation upon the acquisition of property. All they confer is a right to set a procedure in chain. If the Minister contests that there has been an acquisition, the Commonwealth is under no obligation to pay compensation unless and until the claimant has instituted proceedings in the High Court and obtained a declaration that there has been an acquisition. Inevitably, the obtaining of such a declaration will involve the passage of time. If such a declaration is obtained and the amount claimed is in excess of $5 million, the claimant is still not entitled to enforce payment of any amount of compensation. He is only entitled to have a Committee of Inquiry established. It is instructive to consider the situation which exists if he obtains a favourable recommendation from that Committee of Inquiry. At that stage, the Act envisages that more than eighteen months plus whatever time may be involved in obtaining a declaration in the High Court may have expired. The claimant is still not entitled to be paid an ascertained amount of compensation or to apply to have a binding determination of such an amount. He has to wait for the next step which is for the Governor-General to determine what the Governor-General considers to be "fair and just" compensation in respect of the acquisition. The Governor-General will, of course, act on the advice of the relevant Minister of the Commonwealth. He is not obliged to accept the recommendations of the Committee of Inquiry. It is only after the Governor-General has determined what he considers to be "fair and just" compensation that the claimant has the right to seek compensation in a tribunal which has authority to make a binding decision.
There is not, of course, anything intrinsically unfair in the Parliament providing a procedure for determining the quantum of compensation outside the ordinary judicial process. There is however something intrinsically unfair in a procedure which, in effect, ensures that, unless a claimant agrees to accept the terms which the Commonwealth is prepared to offer, he will be forced to wait years before he is allowed even access to a court, tribunal or other body which can authoritatively determine the amount of the compensation which the Commonwealth must pay. In the case of s. 17 of the Act, this intrinsic unfairness is heightened by a failure to make any provision in respect of the payment of interest during the period between the time when the acquisition is made and the time when the person whose property is acquired can finally institute an effective claim for compensation. In my view, the system established by s. 17 for ascertaining whether compensation is payable and, if it is, the amount which should be paid is quite unacceptable and unfair according to the ordinary standards of "fair dealing between the Australian nation and an Australian State or individual in relation to the acquisition of property for a purpose within the national legislative competence"; Nelungaloo Pty. Ltd. v. The Commonwealth (1952), 85 CLR 545 , at p. 600.
In the result, the acquisitions which I have found to have been purportedly effected by the operation of the Wilderness Regulations and by the operation of the Proclamation under s. 8 were not upon just terms. They were beyond the constitutional competence of the Commonwealth. It is unnecessary to consider whether the provisions of s. 17 are invalid, as was submitted on behalf of Tasmania, on the further ground that they represent an attempt to exclude the original jurisdiction of the Court under the Constitution. It should be mentioned in that regard, however, that I consider it to be plain that the only compensation to which a claimant is entitled under s. 17 is the amount determined in accordance with the provisions of that section. That being so, no independent claim for compensation could be instituted in this Court.
The Wilderness Regulations are only applicable in respect of the HEC land. Their only operative provisions (Reg. 5) are those which effect the acquisition. The consequence of a failure to provide just terms is that the Wilderness Regulations are, in their entirety, invalid.
The reasoning which leads me to conclude that an acquisition of property was involved in the application of the provisions of s 11 to the relevant sites would apply in respect of any application of those provisions to any area of land which constituted an Aboriginal site. I have been troubled as to whether it would be appropriate to read down the provisions of s 11 in an endeavour to preserve the validity of those parts which, if left on their own, would not constitute an acquisition of the property to which they applied. The Court has not had the benefit of argument on that matter. I have come to the view that such a reading down is not justified in the context of provisions which, when taken as a whole, involve an acquisition of property otherwise than on just terms. It follows that s 11 is, in its entirety, invalid. s 11.
Two outstanding questions
(i) Is the HEC a "trading corporation"?
The HEC is not the Crown or an emanation of the Crown (Launceston Corporation v. The Hydro-Electric Commission (1959), 100 CLR 654 , at pp.661-663). It is a statutory corporation established by and under the provisions of the Hydro-Electric Commission Act 1944 (Tas.). It performs a number of functions of a semi-governmental nature including the recommending of regulations and orders in council and the making of by-laws with the approval of the Governor. Its precise functions, duties and powers are set out in the Hydro-Electric Commission Act 1944 and in other legislation such as the Water Resources Investigation Act 1937 (Tas.) and the Water Act 1957 (Tas.). It carries on an extensive trading activity of selling the power which it generates.
During the financial year ended 30th June, 1982, the HEC derived over $55 million from the bulk sale of power, over $105 million from the retail sale of power and over $2 million from accrued retail sales. During that period, it made a gross profit on its Trading Account of over $103 million which was carried to its profit and loss account. It supplies electricity to approximately 190,000 customers
In State Superannuation Board v. Trade Practices Commission (1982), 57 ALJR 89, at pp.96-97, Mason J., Murphy J. and I pointed out that the approach taken by the majority in Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1974), 130 CLR 533 had been subsequently disapproved by the majority of the Court in Reg. v. Federal Court of Australia; Ex parte The Western Australian National Football League (Adamson) (1979), 143 CLR 190 . We went on to express the view that the fact that a trading corporation carries on extensive non-trading activities which might properly warrant its being categorized as a corporation of some other type will not prevent it from being properly categorized as a trading corporation by reason of its trading activities. In that regard, we referred to a comment of Mason J. in Adamson, at p. 233 that the expression "trading corporation" is essentially "a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation".
The HEC is, by virtue of its wide semi-governmental powers and functions, a corporation of an unusual type. It could not inaccurately be described as a "public utility" corporation. It is, nonetheless, a corporation of which a main objective is the sale of power to consumers in Tasmania and which carries on the trading activity of selling such power on a very large scale indeed. Whatever other description might be applied to it, it is, in the context of its overall activities as described in the agreed facts, a trading corporation both for the purposes of the Act.
The questions asked include the question whether, if, as I have held, the HEC is a trading corporation and s. 10(4) is valid, the HEC is carrying out the acts referred to in s. 10(2) and (3) for the purposes of its trading activities. In my view, that question must be answered in the affirmative. The "Development" upon the Gordon River below the junction with the Franklin is being carried out by the HEC for the purpose of acquiring a new source of power to be sold in the course of its ordinary trading activities. That being the case, the acts involved in the Development are being done "for the purposes of" those trading activities within the Act.
(ii) Is the Gordon River Hydro-Electric Power Development Act 1982(Tas.) invalid?
Section 16 (1) of the Hydro-Electric Commission Act 1944 provides that no new power development shall be undertaken or constructed by the HEC unless it has been authorized by the Parliament of Tasmania. The Gordon River Hydro-Electric Power Development Act 1982 (Tas.) authorizes the HEC to construct the proposed Gordon below Franklin power development, including the dam, at a cost not exceeding $452,891,000.
The effect of valid provisions of the Act and of the Regulations and Proclamations made under it (the Commonwealth laws) is that the acts which would be essential to the construction of the power development are prohibited by valid laws of the Commonwealth unless the consent of the Commonwealth Minister is obtained. There is no fundamental inconsistency between a provision of the law of Tasmania that the HEC is vested with authority to do an act which it is prohibited under Tasmanian law from doing without such authority and a valid law of the Commonwealth that no person shall do that act without the permission of a Commonwealth Minister. Theoretically at least, it is conceivable that the consent of the Commonwealth Minister to the doing of the acts involved in the building of the power scheme might be forthcoming.
The result of the prohibitions imposed by the operation of the Commonwealth laws is not the total invalidity of the Tasmanian Act pursuant to the Constitution. It is that the authority conferred by the Tasmanian Act to construct the power development is subject to the prohibition, imposed by the Commonwealth laws, of the doing of acts involved in the construction of the development without the consent of the Commonwealth Minister. The Tasmanian Act is ineffective to authorize the doing of any of those acts without that consent.
Conclusion
I would answer the questions asked as follows:
Actions No. C6 and No. C8 of 1983
Question 1. (a) "Yes".
Question 1. (b) "It does not enable the making of those Regulations in their present form without the provision of 'just terms' in respect of the acquisition of property which they effect."
Question 2. "No."
Question 3. "Yes. The said Regulations are all invalid by reason only of a failure to provide 'just terms' as required by s. 51(xxxi) of the Constitution."
Question 4. Does not arise.
Question 5. "Not invalid, but ineffective unless the Commonwealth Minister consents."
Question 6. Unnecessary to answer.
Action No. C12 of 1983
Question 1. (a) "Yes, apart from (i) pars. (a),(c) and (d) of s. 6(2), the validity of which it is not necessary to determine; (and) (ii) par. (e) of s. 6(2) and pars. (a), (b), (c), (d), (e), (f) and (g) of s. 9(1) which are invalid."
Question 1. (b) "Yes, in their entirety."
Question 1. (c) "No. They are invalid in their entirety by reason only of a failure to provide 'just terms' as required by s. 51(xxxi) of the Constitution."
Question 1. (d) "No."
Question 2. "No."
Question 3. "The Regulations are invalid to the extent to which they are made pursuant to s. 8 are invalid. Otherwise, no."
Question 4. Does not arise.
Question 5. (a). "Yes."
Question 6. "Not invalid, but ineffective unless the Commonwealth Minister consents."
Question 7. Unnecessary to answer.
Question 8. "Yes."