Commonwealth v Tasmania (The Tasmanian Dam Case)
158 CLR 146 ALR 625
(Judgment by: DAWSON 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:
DAWSON J
DAWSON J. The factual setting of the questions for decision in this case, the relevant legislative provisions and the provisions of the Convention for the Protection of the World Cultural and Natural Heritage (the Convention) are summarized in the judgment of the Chief Justice and it is unnecessary to repeat that summary. What must be decided is whether any valid operation may be given to the World Heritage (Western Tasmania Wilderness) Regulations made under National Parks and Wildlife Conservation Act 1975 (Cth) and World Heritage Properties Conservation Act 1983 (Cth). Answers to those questions will determine whether the Tasmanian Hydro-Electric Commission may lawfully proceed with the construction of a dam downstream of the junction of the Gordon and Franklin Rivers as part of a new power development authorized by the Gordon River Hydro-Electric Power Development Act 1982 (Tas.).
The Commonwealth seeks to find the necessary power to support both s. 69 of the National Parks and Wildlife Conservation Act and World Heritage Properties Conservation Act in the Constitution (the external affairs power). In addition, it relies upon an implied inherent power said to arise from nationhood to support World Heritage Properties Conservation Act. It invokes the Constitution (the corporations power) in support of the Constitution (the power to make special laws for the people of any race) in support of s. 11. Tasmania and the Hydro-Electric Commission, in addition to disputing the existence of the power necessary to support the legislation, make a number of submissions. They say that, in any event, the operative provisions of the relevant legislation amount to laws with respect to the acquisition of property but fail to provide for just terms as required by s. 51(xxxi) of the Constitution and are for that reason invalid. They also contend that the legislation is prohibited by the Constitution, which provides that the Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. And finally, they submit that the operative provisions of the legislation are invalid because they interfere with Tasmania's legislative and executive functions and with the prerogative powers exercisable in that State. It is convenient to put to one side for the moment the submissions relating to acquisition upon just terms, the abridgement of the right to use water and interference with State functions, and to deal with the matter initially under the heads of power upon which the Commonwealth relies.
External Affairs Power
The scope of the power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs was, until the recent decision in Koowarta v. Bjelke-Petersen (1982), 56 ALJR 625, more uncertain than it now is. The extent of the previous case law upon the subject was succinctly set out by Brennan J. in that case, at p 662:
"Paragraph (xxix) has been held to support legislation for the acceptance and government of the Mandated Territory of New Guinea (Jolley v. Mainka (1933), 49 CLR 242 , at pp. 250, 281, 286), for the reciprocal surrender of persons charged with criminal offences (Frost v. Stevenson (1937), 58 CLR 528 , at p. 557), to carry into execution within Australia the provisions of Pt, X of the Treaty of Versailles (Roche v. Kronheimer (1921), 29 CLR 329 , at pp. 338-339; and see The King v. Burgess; Ex parte Henry, at p 641), to give effect to the Paris Convention for the Regulation of Air Navigation (The King v. Poole; Ex parte Henry (No 2) (1939), 61 CLR 634 , at pp 644, 645, 654), to carry out certain provisions of the Chicago Convention on International Civil Aviation (Airlines of NSW Pty Ltd v. New South Wales (No 2) (1965), 113 CLR 54 ) and to give effect to the Convention on the Territorial Sea and Contiguous Zone (New South Wales v. The Commonwealth, at pp. 361, 364-365, 377, 475-476, 503)."
Notwithstanding these decisions, there were at least two distinct views of the power afforded by s. 51(xxix) to implement international agreements by domestic legislation. On the one hand there was the view expressed by Evatt and McTiernan JJ. in R. v. Burgess; Ex parte Henry (1936), 55 CLR 608 (Burgess' Case), at p. 687, that the legislative power of the Commonwealth extends to the execution of any bona fide treaty or convention entered into with a foreign country and might even extend to the carrying out of international recommendations or requests "upon other subject matters of concern to Australia as a member of the family of nations". This view, which seemed to Dixon J. in the same case to be extreme, may be contrasted with the opinion expressed by him, at p. 669, that the nature of the external affairs power indicates limits upon the power of the Parliament to pass laws in the implementation of treaty obligations. Those limits are met, upon his view, if a treaty is made which binds the Commonwealth in reference to some matter which is international in character. In that event, a law might be made to secure the observance of the treaty obligations if they are of a nature affecting the conduct of Australian citizens.
The views of Latham C.J. and Starke J. in Burgess' Case appear to lie somewhere between the views expressed by Evatt and McTiernan JJ. on the one hand, and Dixon J. on the other, although the view of Latham C.J. (see p 640) appears to have a closer affinity with that of Evatt and McTiernan JJ. and the view of Starke J. (see p 658) may at least upon one reading of his judgment, be thought to resemble that of Dixon J. There is little to be gained by any closer analysis of Burgess' Case because the main question posed in that case was dealt with by the decision in Koowarta v. Bjelke-Petersen. It is that decision which now must be the real basis of any examination of the scope of Commonwealth legislative power to implement treaty obligations.
It is necessary, I think, to refer to only two observations in the cases subsequent to Burgess' Case, other than Koowarta v. Bjelke-Petersen. The first is the expression of a clear view by Barwick C.J. in Airlines of NSW Pty. Ltd. v. New South Wales (No 2) (1965) 113 CLR 54 (Airlines Case (No 2)), at p 85, that "the mere fact that the Commonwealth has subscribed to some international document does not necessarily attract any power to the Commonwealth Parliament".
The second observation is that of Stephen J. in New South Wales v. The Commonwealth (1975) 135 CLR 337 , at p 446:
"Whatever limitations the federal character of the Constitution imposes upon the Commonwealth's ability to give full effect in all respects to international obligations which it might undertake, this is no novel international phenomenon. It is no more than a well recognized outcome of the federal system of distribution of powers and in no way detracts from the full recognition of the Commonwealth as an international person in international law."
Although Stephen J. was in dissent in New South Wales v. The Commonwealth, these remarks have significance in view of the importance, as will be seen, of his judgment in Koowarta v. Bjelke-Petersen.
Before turning to Koowarta v. Bjelke-Petersen, I may, perhaps, be permitted several general observations upon the nature of the external affairs power.
There is in the Constitution no express power conferred upon the executive to make treaties with other countries or upon the Parliament to implement treaties if made on behalf of this country. In 1897 the draft Commonwealth of Australia Bill contained a covering cl.7 which provided that all treaties made by the Commonwealth as well as all laws made by the Parliament should be binding throughout the Commonwealth and should be in force on board all British ships whose last port of clearance or whose port of destination was in the Commonwealth. The external affairs power originally referred to "external affairs and treaties". The references to treaties in both the covering clause and par. (xxix) were omitted (see Convention Debates of 9th September, 1897, and 21st January, 1898) and the only reference to treaties in the Constitution is in s. 75(i), which bestows original jurisdiction upon the High Court in all matters arising under treaties. There can be little doubt that the express omission of any reference to the making of treaties was a reflection of the accepted view at the time that the treaty making power was, and was to remain, in the Imperial Crown and was to form no part of the functions of the Commonwealth. It is consistent with this view that the Constitution extends the executive power of the Commonwealth to the execution and maintenance of the Constitution and of the laws of the Commonwealth. In 1901 it was not thought that the Commonwealth executive power extended to the making of treaties with other countries, nor was it thought that it should do so. The events which marked the emergence of Australia to dominion status and finally as an independent international personality were the result, not of any increase in the powers vested in the Commonwealth by the Constitution, but of the removal by the Statute of Westminster of any restrictions upon legislation having extra-territorial effect or repugnant to Imperial legislation and of the de facto recognition of a new status by other nations. No doubt the conclusion of treaties on behalf of Australia is still in the name of the Crown, although obviously not any longer the Imperial Crown, and may perhaps be viewed as an exercise of the Crown prerogative to conclude treaties. Such a view is, however, not without anomaly having regard to the Constitution which makes specific provision for the powers and functions of the Crown to be assigned to the Governor-General. The prerogative power to make treaties has not been assigned.
The matter is for the most part of academic interest only because in the international community de facto recognition is all that is required for the negotiation and conclusion of international agreements and other participation in the community of nations. The existence of the external affairs power is for domestic purposes and, whatever its limitations, it provides the measure of power to implement international obligations. The interest is not, however, entirely academic because the assumption is frequently made that the power under which treaties are now concluded on behalf of this country is to be found in the Constitution. See, for example, Koowarta v. Bjelke-Petersen, per Stephen J., at p 643, and per Murphy J., at p. 654; generally, Zines, Commentaries on the Australian Constitution (1977) Chs. 1 and 2. But if this view were correct, it is unlikely that the debate would have centred upon the external affairs power as it has in this case. The unlimited power of the Commonwealth to conclude treaties is not now to be doubted, but if the source of that power is to be found in s. 61 of the Constitution, an argument would have been available that s. 61 coupled with the incidental power (s. 51(xxix)) is sufficient to support the legislation in question. Such an argument was not put. Compare with Victoria v. The Commonwealth and Hayden (1975), 134 CLR 338 (Australian Assistance Plan Case), per Jacobs J., at pp. 413-415. Speaking for myself, I cannot see that such an expanded view of the Constitution can be supported textually, historically or logically. It is, however, sufficient to note the view, because what is important for present purposes is that by contrast with the width of the treaty making power, the legislative power of implementation which is to be found in the Constitution is limited by the words used to describe the power, namely, "external affairs".
No difficulty has been found with the word "affairs": clearly it is wide enough in its context to embrace the business of government and is used in the sense in which it is used in the phrase "affairs of state". It is the word "external" which provides the limit and the difficulty. The use of synonyms such as "foreign" or "foreign relations" (see Burgess' Case, at pp. 643, 658) does not solve the problem and only serves to restate it. That problem, reduced to its simplest formulation, is where the line is to be drawn between external or foreign affairs on the one hand and those matters which are not external affairs on the other. The description of the power in par.(xxix) requires the line to be drawn and so creates the problem, but does not greatly assist in its solution.
At the risk of stating the self-evident, I think that it is important at the outset to draw a distinction between the conclusion of a treaty, including the negotiations leading to it, and the obligations which the treaty imposes. Whilst the making of treaties with other countries and the means by which they are made are clearly part of the external affairs of the Commonwealth and hence the legitimate subject matter of Commonwealth legislation, it is another thing, in my view, to say that a law implementing the obligations which a treaty imposes is necessarily a law with respect to external affairs. An agreement with another nation or other nations is necessarily made internationally because it is between nations and the agreement itself is for that reason part of the external affairs of this country. But the agreement may be to do something which is entirely domestic and has no international ramifications at all, save that if it is done it may satisfy an international obligation. Whether the mere satisfaction of an international obligation by the enactment of a law otherwise entirely domestic in character makes that law a law with respect to external affairs has been a question at the very heart of any consideration of the external affairs power.
It is, of course, true that a law can be a law with respect to external affairs although it is not made in the implementation of any international obligation. The subject matter of the law may of itself be within that category although it is not passed pursuant to any international obligation. Such matters as diplomatic rights and immunities, the treatment of fugitive offenders, the determination of external boundaries or the excitement of disaffection against other countries are affairs which, on their face and without more, are within the legislative power of the Commonwealth; see, for example, R. v. Sharkey(1949), 79 CLR 121 ; New South Wales v. The Commonwealth, (supra). However, it is not suggested that the subject matter of the Convention in this case is of such a character. If it is part of the external affairs of the country, it can only be because that characteristic is stamped upon it by some additional circumstance which gives it a sufficiently external or foreign aspect. Whether the existence of the Convention and such obligations as it imposes, or something other than the existence of the Convention, provides that additional characteristic is a question which leads me directly to a consideration of Koowarta v. Bjelke-Petersen.
In that case it was conceded that Racial Discrimination Act 1975 (Cth) were in conformity with the relevant obligations imposed by the International Convention on the Elimination of All Forms of Racial Discrimination. By a majority of four Justices to three, it was held that those sections were laws with respect to external affairs within the meaning of s. 51(xxix) and were, accordingly, validly enacted. Of the majority of four, however, only three Justices (Mason, Murphy and Brennan JJ.) held that a law implementing an obligation imposed by a treaty bona fide concluded by Australia was, by that fact and without more, a law with respect to external affairs within the meaning of s. 51(xxix). Indeed, Mason and Murphy JJ. went further. Mason J. was prepared to hold "that a matter which is of external concern to Australia having become the topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it" (see p. 653). Murphy J. was prepared to construe the external affairs power as sufficient to support the law in question because it related "to matters of international concern, the observance in Australia of international standards of human rights, which is part of Australia's external affairs"; see p. 656. But Mason, Murphy and Brennan JJ. were in a minority in giving to the external affairs power the breadth of operation which they did. A majority of the Justices (Gibbs C.J., Stephen, Aickin and Wilson JJ.) held that the mere fact that a law gives effect to treaty obligations will not for that reason alone make it a law with respect to external affairs. At p. 638, Gibbs C.J., with whom Aickin and Wilson JJ. agreed, expressed the view that "a law which carries into effect the provisions of an international agreement will only have the character of a law with respect to external affairs if the provisions to which it gives effect answer that description." And at p. 645, Stephen J. said: "It will not be enough that the challenged law gives effect to treaty obligations." There was, therefore, a clear rejection by the Court in Koowarta v. Bjelke-Petersen of the extreme view of the external affairs power which was propounded in Burgess' Case by Evatt and McTiernan JJ.
If I may say so with respect, the rejection of that extreme view was required by all the accepted canons of construction. No doubt, as those who hold the contrary view assert, the external affairs power is, as are the other legislative powers of the Commonwealth, a plenary power. But that is not to relieve the Court of the task of construing the power in order that it may be given its full effect; see Bank of NSW v. The Commonwealth (1948), 76 CLR 1 (Bank Nationalization Case), per Latham C.J., at p. 186. No doubt it is true that in the construction of the Constitution an expression should, where possible, be given a wider rather than a narrower construction. But it is only possible to do so where the context, which above all else emphasizes the federal nature of the Constitution, does not suggest that a narrower interpretation will best carry out the object and purpose of that instrument; see Jumbunna Coal Mine, N.L. v. Victoria Coal Miners' Association (1908), 6 CLR 309 , at p. 368. No doubt the legislative powers of the Commonwealth should not be construed with any preconception in mind of the residual powers of the States, but that does not mean that Commonwealth powers should receive an interpretation which has no regard to the federal context in which they are found. The notion that Commonwealth legislative powers are to be given the widest interpretation which the language bestowing them will bear, without regard to the whole of the document in which they appear and the nature of the compact which it contains, is a doctrine which finds no support in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 CLR 129 (the Engineers Case) and is unprecedented as a legitimate method of construction of any instrument, let alone a constitution.
Nor is the rejection of the extreme view in disregard of the accepted principle that, where appropriate, the content of Commonwealth legislative powers may expand to embrace new events and changed times. Their denotation remains the same but their connotation may vary according to the circumstances at the time they fall to be interpreted. However, what has changed with the times is the range of matters which are considered to be appropriate as the subject of treaties. Under modern conditions there are few matters which are not regarded as fit subjects for international agreement and any distinction between foreign and domestic affairs for this purpose has practically disappeared. But this presents no problem for, as I have pointed out, the capacity of Australia to conclude treaties with other countries is not to be found in the grant of any power in the Constitution and hence is the subject of no constitutional limitations. It has not been questioned in recent years that the treaty making power of this country is unlimited and there is, therefore, no occasion in the consideration of its scope to resort to the changing connotations of constitutional provisions.
The external affairs power, on the other hand, is a power specifically conferred upon the Commonwealth Parliament to make laws for the peace, order and good government of the Commonwealth. It is not a power to make treaties. It is a power to make laws with a domestic application and it requires a distinction to be made between those matters which may be said to be external affairs and those which may not. This is a distinction which may now be largely disregarded for the purposes of international agreement, but that is to throw little light upon the proper construction of s. 51 (xxix). And the proper construction must, of course, be determined before any question can arise concerning the impact of changing circumstances upon the power properly construed. Once it has been determined, as it has been by a majority of this Court, that the matters which may be described as external affairs within the meaning of s. 51(xxix) are not co-extensive with the matters which may form the subject matter of international agreement, then it is axiomatic that any expansion which may have occurred in the treaty making power has not produced a corresponding expansion in the external affairs power.
It would be superfluous to retrace here the steps by which a majority in Koowarta v. Bjelke-Petersen reached the conclusion that s. 51(xxix) must receive a more limited construction than that favoured by those who took the extreme view. It is sufficient to say that it was recognized by the majority that, because of its elastic nature, the phrase "external affairs" itself suggests no precise meaning and that its proper scope is to be determined consistently with the implications arising from the federal nature of the Australian Constitution rather than by reference to the unlimited scope of the treaty making power. To have done otherwise would have given par.(xxix) of s. 51 the potential to obliterate the limits set by that section upon Commonwealth legislative power. It would have given the paragraph an operation not required by the words of s. 51(xxix), which would have been entirely inconsistent with the context provided by the Constitution and destructive of the federal balance which it was intended to protect.
At p 638 in Koowarta v. Bjelke-Petersen, Gibbs C.J. pointed out:
"If the 'extreme view' is adopted, and the broadest possible interpretation is given to the words of s 51(xxix), that paragraph would mean that the power of the Commonwealth Parliament could be expanded by simple executive action, and expanded in such a way as to render meaningless that 'limitation and division of sovereign legislative authority' which is 'of the essence of federalism': Spratt v. Hermes (1965) 114 CLR 226 at 274
At pp. 660-661, Wilson J. said:
"It is no exaggeration to say that what is emerging is a sophisticated network of international arrangements directed to the personal, economic, social and cultural development of all human beings. The effect of investing the Parliament with power through s 51(xxix) in all these areas would be to transfer to the Commonwealth virtually unlimited power in almost every conceivable aspect of life in Australia, including health and hospitals, the workplace, law and order, the economy, education, and recreational and cultural activity to mention but a few general heads."
And Stephen J. adopted a position which showed no retreat either in reasoning or result from the passage which I have already cited from his judgment in New South Wales v. The Commonwealth, at p 446, where he referred to the limitations imposed by the federal character of the Constitution upon s 51(xxix); see Koowarta v. Bjelke-Petersen, pp.643, 644.
The rejection of the extreme view of s 51(xxix) by a majority of the Court in Koowarta v. Bjelke-Petersen did not, however, provide a majority in favour of any one test to identify those matters which are external affairs within the meaning of s 51(xxix).
At p 638, Gibbs C.J., with whom Aickin and Wilson JJ. agreed, said:
"I consider that a law which carries into effect the provisions of an international agreement will only have the character of a law with respect to external affairs if the provisions to which it gives effect answer that description."
He went on to say that international concern would not provide the requisite externality:
". . . since under modern conditions there are few matters which are not regarded as fit subjects for international agreement. . . . It is difficult to suggest any more precise test than that indicated by Dixon J. in the same case (Burgess' Case), at p 669 - was the treaty made in reference to some matter international in character? . . .
"What I have said is not intended to suggest that there is a limited class of matters which, by their nature, constitute external affairs, and that only such matters are subject to the power conferred by s 51(xxix). Any subject-matter may constitute an external affair, provided that the manner in which it is treated in some way involves a relationship with other countries or with persons or things outside Australia. A law which regulates transactions between Australia and other countries, or between residents of Australia and residents of other countries, would be a law with respect to external affairs, whatever its subject matter."
Stephen J. adopted a not dissimilar approach, save that he indicated that a sufficient degree of international concern, such as might be evidenced by customary international law with respect to a subject matter, might provide the necessary international character. At p 645, he said that:
". . . where the grant of power is with respect to 'external affairs' an examination of subject-matter, circumstance and parties will be relevant whenever a purported exercise of such power is challenged."
He went on to say:
"Nevertheless the quality of being of international concern remains, no less than ever, a valid criterion of whether a particular subject-matter forms part of a nation's 'external affairs'. A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's 'external affairs'."
It is clear that in referring to international concern, Stephen J. was referring to concern of a sufficient degree to warrant the description of the subject matter as part of the country's external affairs. Earlier he had dismissed the notion that it would be enough to attract the external affairs power that a law gave effect to treaty obligations. The conclusion of a treaty upon a subject matter is, of course, evidence of some degree of international concern over that subject matter and it is clear that his Honour was referring to something more. And, at p 646, he gives an indication of his view by saying that the prevention of racial discrimination had, by reason of the emphasis which the Charter of the United Nations places upon international recognition of human right and fundamental freedoms, become a legitimate subject of international concern. He saw much in the submission that non-discrimination on the grounds of race is now a part of customary international law and he equated it with slavery and genocide as of immediate relevance to relations within the international community.
If by applying these criteria which emerge from Koowarta v. B jelke-Petersen it is possible to answer in this case whether the laws in question answer the description of laws with respect to external affairs, then that is the course which I think I should take. I am mindful of the dangers of attempting any formulation of my own and heed the warning of Dixon J., repeated in other judgments, that:
"The limits of the (external affairs) power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example": Burgess' Case at p 669; see also Airlines Case (No. 2), per Barwick C.J., at p. 85; New South Wales v. The Commonwealth, per Stephen J., at p. 449.
It is convenient to turn first to the views expressed by Stephen J. It is clear that in Koowarta v. Bjelke-Petersen he regarded the subject matter of the Racial Discrimination Act as falling within the external affairs power because it was a subject of sufficient international concern regardless of whether or not it also was the subject of treaty obligations. In that respect he diverged from the views expressed by Gibbs C.J., Aickin and Wilson JJ. It followed that a fortiori Stephen J. regarded the Racial Discrimination Act in relevant respects as being a law with respect to external affairs because it also embodied treaty obligations. But apart from his application of a criterion of international concern and his finding that such concern was evident to the degree required by him, Stephen J. does not appear to have differed in his approach from that of Gibbs C.J. Aickin and Wilson JJ. If the laws in question in this case do not satisfy the test of international concern postulated by Stephen J. in Koowarta v. Bjelke-Petersen, it is then consistent with that authority to turn to the question whether those laws otherwise have the international character required by Gibbs CJ., Stephen, Aickin and Wilson JJ. That requirement will not be satisfied merely because those laws were made in the implementation of a treaty obligation.
In my view, neither National Parks and Wildlife Conservation Act, in so far as it purports to authorize the making of the World Heritage (Western Tasmania Wilderness) Regulations, nor s 9 (which is the relevant section for present purposes) of the World Heritage Properties Conservations Act, can be said to be a law upon a subject matter of sufficient international concern to be with respect to external affairs. I reach that conclusion upon the assumption, and without expressing any opinion of my own, that what was said by Stephen J. in Koowarta v. Bjelke-Petersen about the significance of international concern ought to be accepted.
I should say at this point that, for the reason given by the Chief Justice, I reject the submission that National Parks and Wildlife Conservation Act authorizes the making only of regulations which carry into effect an agreement referred to in the schedule in relation to parks and reserves which are established under Pt. II of the Act.
The subject matter of the regulations made under National Parks and Wildlife Conservation Act and of World Heritage Properties Conservation Act is the protection and conservation of certain property which forms part of the cultural heritage or natural heritage within the meaning of the Convention. The measure of international concern over the cultural or natural heritage is, I think, to be gauged from the Convention itself, that being the furthest point to which the international community has been prepared to go generally in adopting a common standpoint in relation to those matters. The Court was referred by the Commonwealth to a number of international instruments commencing in 1900 and to the travaux preparatoires of the Convention, all of which indicated world concern about cultural and environmental matters. These culminated, for present purposes, in the UNESCO recommendation concerning the protection, at national level, of the cultural and natural heritage, which was adopted in 1972 shortly before the adoption of the Convention. The recommendation, however, goes no further than to indicate a level of concern similar to that indicated by the Convention. Indeed, the recommendation is in important respects adopted by or reflected in the Convention. Tasmania, on the other hand, pointed to the limited extent to which the international community is prepared to countenance the imposition of international obligations for environmental purposes as evidenced by the Stockholm Declaration on the Human Environment which was also made in 1972. Principle 21 of that document declares that "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". In addition, the Court was referred to the Charter of Economic Rights and Duties of States adopted in 1974 which, in Chs. 1 and 2, contains assertions to the same effect as Principle 21 of the Stockholm Declaration. It is pertinent to remark, having regard to Koowarta v. Bjelke-Petersen, that in the same context the Charter affirms without qualification the principle of respect for human rights and fundamental freedoms.
If, as in my view it does, the Convention represents the highest point in the international expression of concern for the preservation of the cultural and natural heritage of nations generally, then it is necessary to go to the provisions of the Convention to determine the degree of concern.
Considerable time during the course of argument was spent in examining the question whether the significant provisions of the Convention constitute obligations imposed upon the parties to it or whether, despite being couched in terms giving the appearance of obligations, those provisions are in substance the expression of aspirations rather than obligations. I do not find it profitable to pursue this question. Whilst there is much to be said for the view that no relevant obligation is imposed by the Convention, I am prepared to assume for the purposes of the argument that its provisions are obligatory. Notwithstanding that assumption, it does not appear to me that the level of international concern shown by the adoption of the Convention is such as to make the protection of the cultural and natural heritage of Australia part of its external affairs.
The material provisions of the Convention are set out in the judgment of the Chief Justice and it would be repetitious to set them out again. What they make clear is that the duty of caring for their cultural and natural heritage is recognized as belonging primarily to the nations which are parties to the Convention. Whilst there is an obligation imposed upon parties to the Convention to undertake measures for the protection, conservation and presentation of the cultural and natural heritage, the measures required are those which are possible and appropriate for each country and it is a matter for each country to decide for itself what is possible and appropriate; see Arts. 4 and 5. Recognition is expressed of the fact that the cultural and natural heritage of individual countries constitutes as a whole a world heritage and that the international community as a whole should cooperate in its protection. This recognition is, however, expressed in guarded terms, being given without prejudice to property rights provided by national legislation and fully respecting the sovereignty of those countries on whose territory the cultural and natural heritage is situated; see Art. 6. The method of international co-operation for which the Convention provides is the establishment of a World Heritage Committee (Art. 8) and a World Heritage Fund (Art. 15). Contributions to the fund by parties to the Convention are compulsory only for those who choose to make them so (Art 16).
Parties to the Convention may make requests to the World Heritage Committee for international assistance for property forming part of the cultural or natural heritage of outstanding universal value within their territory (Art 19) and assistance may be granted in the form of expert help, the supply of equipment or loans or grants of money from the World Heritage Fund; see Art. 22. Assistance, however, may only be granted in respect of property entered upon the World Heritage List or the List of World Heritage in Danger; see Art. 20. The World Heritage List is compiled by the World Heritage Committee from an inventory of property suitable for inclusion in it, compiled in relation to its territory by each party to the Convention. Only property of outstanding universal value is to be placed upon the World Heritage List and it cannot be placed on the list without the consent of the party concerned. The List of World Heritage in Danger specifies property for the conservation of which major works are necessary and for which assistance has been requested and which is threatened by serious and specific dangers of a type described; see Art. 11. The Convention makes provision for educational programmes and reports upon the measures adopted for the application of the Convention; see Arts. 27, 28 and 29. Finally, there is provision for denunciation of the Convention by any party and for its registration and revision; see Arts. 35, 36, 37 and 38.
Article 34 contains a federal state clause in the following form:
"The following provisions shall apply to those States Parties to this Convention which have a federal or non-unitary constitutional system:
- (a)
- with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States;
- (b)
- with regard to the provisions of this convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption."
I have set out Art. 34 in full because of its significance in the Australian context. Although, as will appear, I do not find it necessary to determine the applicability of that clause, it is nevertheless of sufficient importance to return to it.
What emerges from the Convention with clarity is the extreme care which has been taken to affirm the right of individual parties to determine not only what constitutes the cultural and natural heritage situated upon its territory which is deserving of international attention, but also the right to determine whether it is possible or appropriate to endeavour to take the measures suggested by the Convention for the protection, conservation and presentation of that heritage. The Convention recognizes plainly that in this field of endeavour there can be no absolute imperatives and that difficult decisions must be made which involve the compromise of environmental, social and economic values. Those decisions are left to the individual parties to the Convention with the exhortation that they should endeavour, in so far as possible, and as appropriate for each country, to identify and conserve their heritage.
It is apparent, I think, from the foregoing that the Convention for the Protection of the World Cultural and Natural Heritage falls short of demonstrating the degree of international concern over its subject matter which Stephen J. would have considered sufficient to stamp it with the characteristics necessary to make it part of this country's external affairs. Indeed, the Convention itself points in the opposite direction. It is at pains to restrict the degree of concern which it shows so that there can be no suggestion of international invasion of the sovereign right of nations to determine for themselves the manner in which they will exploit their resources, notwithstanding the threat of impoverishment of the heritage of the world. All of this is a far cry from the Convention on the Elimination of All Forms of Racial Discrimination which does speak in the unambiguous terms of absolute imperatives. With the latter Convention it was possible to see by the nature of its provisions that any failure on the part of this country to observe them would affect other nations and this country's relations with them. Moreover, the international setting in which that Convention was adopted, as set out in the judgment of Stephen J. in Koowarta v. Bjelke-Petersen, served to emphasize the conclusion which he reached, which was that racial discrimination, like slavery and genocide, was of immediate relevance to international relations and its unacceptability was, if not a part of customary international law, close to it. Not only does the Convention for the Protection of the World Cultural and Natural Heritage expressly reserve to the parties to it the right to make their own decisions concerning how and when and whether they will act to achieve its objectives, but the international setting in which the Convention was adopted and which is illustrated by the documentary material to which the Court was referred, serves to demonstrate, if anything, that the Convention accurately reflects world opinion. I am for these reasons of the clear view that, even if international concern is a relevant factor in determining whether a law enacted in the implementation of a treaty is a law with respect to external affairs in accordance with the views of Stephen J., in this case no international concern of the requisite kind or degree can be demonstrated in relation to the subject matter of the laws in question or of the treaty obligations which they are intended to implement. It goes without saying that, in my view, if the degree of international concern is insufficient to support the implementation of the Convention, it is insufficient to support legislation upon the subject matter of the Convention independently of it.
That leaves me with the question whether the relevant obligations of the Convention (which is the treaty in this case - I use the term in a broad sense) were, apart from considerations of international concern, imposed in reference to some matter international in character. I speak of relevant obligations because clearly there are obligations which are, or at least can be, imposed by the Convention which are international in character. The obligation to contribute to the World Heritage Fund, if it is undertaken, is of such a character. The undertaking not to take any deliberate measures which might damage the cultural or natural heritage situated on the territory of some other party would appear to be another. The relevant obligations (again upon the assumption that they are truly obligations) are those which relate to the steps to be taken within their own territory by the parties to the Conventions for the preservation of their cultural and natural heritage. It is in the implementation of those obligations that the relevant laws were evidently passed and if the subject matter of those obligations possesses the necessary characteristics to make it part of this country's external affairs, so also does the subject matter of those laws.
In my view then it cannot be said that there is anything in the subject matter of those obligations which makes it part of this country's external affairs.
I have already pointed out that neither the mere fact of international agreement on the subject, nor the degree of international concern demonstrated in this case could, consistently with authority, be sufficient to establish the necessary international character. The relevant obligations are concerned, as are the laws, with the control by this country of activities upon its territory the effect of which is confined to this country. The activities to be controlled are of persons who will ordinarily be Australian citizens or bodies. If, in the event, they are not Australians, that will be merely coincidental and no evidence of any international ramification. There is nothing in the matters dealt with by the relevant treaty obligations or in the laws intended to implement those obligations which involves a relationship with other countries or with persons or things outside Australia. Nor is there anything in those laws which regulates transactions between this country and other countries, or between residents of this country and residents of other countries.
In my view, National Parks and Wildlife Conservation Act, to the extent that it purports to authorize the making of regulations to give effect to the Convention for the Protection of the World Cultural and Natural Heritage and, consequently, the World Heritage (Western Tasmania Wilderness) Regulations are beyond power and invalid. It is also my view that s. 9 of the World Heritage Properties Conservation Act is not a law with respect to external affairs and cannot be supported by that legislative power.
In the foregoing discussion I have been able to avoid, by the assumptions which I have made, the difficult question of how far the legislative implementation of a treaty must conform to the treaty obligations. The view has been forcefully expressed that if treaty obligations are the basis of a law, then it must conform closely to the treaty obligations. In Burgess' Case, at pp. 687-688, Evatt and McTiernan JJ said:
"But it is a necessary corollary of our analysis of the constitutional power of Parliament to secure the performance of an international convention that the particular laws or regulations which are passed by the Commonwealth should be in conformity with the convention which they profess to be executing. In other words, it must be possible to assert of any law which is, ex hypothesi, passed solely in pursuance of this head of the 'external affairs' power, that it represents the fulfilment, so far as that is possible in the case of laws operating locally, of all the obligations assumed under the convention. Any departure from such a requirement would be completely destructive of the general scheme of the Commonwealth Constitution, for, as we are assuming for the moment, it is only because, and precisely so far as, the Commonwealth statute or regulations represent the carrying into local operation of the relevant portion of the international convention, that the Commonwealth Parliament or Executive can deal at all with the subject matters of the convention".
Whilst the wide view taken by Evatt and McTiernan JJ. of the power to implement treaties must be borne in mind, this passage makes it clear that legislation upon the general subject matter of a treaty will not be valid merely because the treaty imposes obligations which are international in character. Of course, as Evatt and McTiernan JJ. go on to point out, the treaty obligations may be such as to allow a discretion as to the method of implementation but I would add that the wider the discretion the less likely it is in some cases (as in this case) that the obligations possess an international character. I do not in this case have to answer this question, but I mention it lest it be thought I have passed over it by default.
There remains to be made some further mention of Art. 34, the federal state clause, of the Convention. Had I found it necessary to determine the question whether the Convention imposed obligations upon the Commonwealth in any relevant respect, I should have found the conclusive answer in that clause. The nature of the significant obligations imposed by the Convention, if it is appropriate to call them obligations, require the formation of a judgment by each party as to what is possible and what is appropriate by way of measures for the protection, conservation and presentation of the cultural and natural heritage situated on its territory. Such a judgment requires the balancing of environmental, social and economic considerations which are by no means wholly, or even largely, entrusted to the Commonwealth in the division of legislative and executive powers which the Constitution effects between it and the States. Of particular relevance in the present context is the fact that the energy needs of the State of Tasmania and the means by which they are to be met are not matters which are confided to the Commonwealth and, that being so, the Commonwealth is in no position to exercise the judgment which is central to the relevant obligations imposed by the Convention. It follows inevitably, in my view, that the implementation of those provisions of the Convention which are in question in this case do not "come under the legal jurisdiction of the central government" and, hence, the only obligation of the Commonwealth under the Convention with regard to those provisions is to inform the "competent authorities" of the States of those provisions with its recommendation for their adoption. However, having expressed my views upon the assumption that obligations were imposed by the operative provisions of the Convention upon the Commonwealth, I have no need to develop in greater detail my view of the effect of Art. 34.
The Corporations Power
World Heritage Properties Conservation Act, which proscribes for foreign and trading corporations the same activities as are described in s 9 is brought into effect by a proclamation under s 6. A proclamation may only be made by the Governor-General under s 7 in respect of property which he is satisfied is being or is likely to be damaged or destroyed. The terms "foreign corporation" and "trading corporation" are to be given under sub-s. (1) of Section 10 also applies to corporations incorporated in a territory but, putting them on one side, it was not contested that the validity of that section stands or falls upon whether s. 10 can be said to be a law with respect to foreign corporations or trading corporations within the meaning of s. 51 (xx).
The activities proscribed are, as I have said, set out in s. 10(2), but they are made unlawful by s. 10(3), except with the consent of the Minister. Section 10(4) is a refinement. Without prejudice to sub-ss. (2) and (3), the same activities are made unlawful, except with the consent of the Minister, if done by a trading corporation for the purposes of its trading activities. It is convenient to defer consideration of sub-s (4) for the moment and to turn to s. 10 without regard to it.
Difficulties in the construction of par. (xx) of s. 51 of the Constitution have long been felt because that paragraph refers to persons, albeit corporate persons, unlike other paragraphs of the section with the exception of pars. (xix) (aliens) and (xxvi) (the people of any race). The nature of most paragraphs of s. 51 was noted by Dixon J. in Stenhouse v. Coleman (1944), 69 CLR 457 , at p. 471, where he said:
"In most of the paragraphs of s. 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter . . . "
However, the fact that the legislative power contained in s. 51(xx) is defined by reference to persons of a particular description does not mean that those persons do not form the subject matter of the power or that it is not necessary for the validity of a law made under s. 51(xx) that it be a law with respect to that subject matter. To put it as it was expressed in argument on behalf of the Hydro-Electric Commission, the Constitution treats foreign corporations and trading corporations formed within the limits of the Commonwealth as subjects of legislative power and not as objects of legislative command. To recognize this is to enable a qualified answer to be given to the question whether a law beginning "every foreign or trading corporation shall . . ." or "every foreign or trading corporation shall not . . ." is a valid law; Cf. Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 , per Menzies J., at p. 508. For the answer must be that such a law is not necessarily a valid law; its validity will depend upon whether the command or prohibition goes to something which may be said to be within the subject matter, that subject matter being defined by reference to corporations of the description contained in s. 51(xx). As was said by Barwick C.J. in Strickland v. Rocla Concrete Pipes Ltd., at pp. 489- 490:
". . . it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, . . . that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject matter of s. 51(xx). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law."
The submission put on behalf of the Commonwealth, when reduced to its essentials, was that an affirmative answer must be given in all cases to the question which I have posed above, but that is a submission which is not consonant with the preponderance of authority and would, if accepted, produce extraordinary results, "big with confusion"; see Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908), 8 CLR 330 , per Higgins J., at p. 409.
It is, I think, unnecessary to examine those judgments in which there is reference to the unlimited scope of Commonwealth legislative power which would result if the Commonwealth's submission were accepted; see, for example, Bank Nationalization Case, per Latham C.J., at p. 202; Actors & Announcers Equity v. Fontana Films Pty Ltd (1982), 56 ALJR 366, per Gibbs CJ, at p 369. The conception which lies behind the submission is described by Professor Harrison Moore in his Commonwealth of Australia, (2nd ed.), at p. 470, as "the revival of a medieval system of personal laws". Whilst it might be observed, as Gibbs C.J. has done in the case last cited, that such a conception is hardly consistent with the federal nature of the Constitution and is certainly incongruous in the context of s. 51, the real answer to my mind lies in the ordinary application of accepted principles. In the end the question is whether a law is a law with respect to a subject matter enumerated in s. 51, notwithstanding the difficulties which arise in the case of s. 51(xx) because of the definition of the power by reference to persons of a particular description.
As in Actors & Announcers Equity v. Fontana Films Pty. Ltd., it is unnecessary and undesirable to attempt to define in this case the outer limits of s. 51(xx); see p. 370, per Gibbs C.J. and also Strickland v. Rocla Concrete Pipes Ltd. at p. 490, per Barwick C.J. It is sufficient for present purposes to say that for World Heritage Properties Conservation Act to be a valid law it must be a law with respect to foreign corporations or trading corporations.
The words of Gibbs C.J. in Actors & Announcers Equity v. Fontana Films Pty. Ltd., at p. 370 are, I think, apposite in this case. He points out that the descriptive adjectives "foreign", "trading" and "financial" in s. 51(xx) are important and continues:
"The words of par. (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid: cf. per Walsh J. in Strickland v. Rocla Concrete Pipes Ltd., at p. 519. In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. This does not mean that a law under s. 51(xx) may apply only to the foreign activities of a foreign corporation, for ex hypothesi the law will be one for the peace, order and good government of the Commonwealth. It means that the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it."
It seems to me that the last line of that passage can be applied in the case of a trading corporation (or, for that matter, a financial corporation) as well as a foreign corporation. For a law to be a valid law with respect to a trading or financial corporation the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it.
In the present case it is apparent, in my view, that there is no significance in the way in which the Act relates to corporations in the fact that they are trading or foreign corporations or, indeed, in the fact that they are corporations at all. They are selected merely as pegs upon which Parliament has sought to hang legislation on an entirely different topic; see Huddart, Parker & Co. Pty. Ltd. v. Moorehead, per Higgins J., at p. 415. If the question is asked whether s. 10 is in fact a law dealing with trading or foreign corporations or dealing with some other subject and applying it to trading and foreign corporations, it admits of only one answer. The section is bereft of any attribute which connects it with corporations other than the fact that the command which it contains is directed to trading and foreign corporations. That is not sufficient to make it a law with respect to corporations, let alone trading or foreign corporations.
As was said by Menzies J. in Strickland v. Rocla Concrete Pipes Ltd., at pp. 502-503:
"A law is not to be described as with respect to the various persons or classes of persons upon whom it casts obligations. A criminal law of general application is neither a law with respect to all persons to whom its command goes, nor to such of those persons as happen to be criminals."
The same point was made by Walsh J. in the same case, at p. 516, when he said:
"It is, of course, true of any law that obedience to it can be rendered only by persons and sanctions for disobedience can be imposed only upon persons. But that does not mean that every law is a law with respect to the persons or to the classes of persons who are required to obey it."
World Heritage Properties Conservation Act is, as the long title of the Act would indicate, a law relating to the protection and conservation of certain property forming part of the cultural or natural heritage within the meaning of s. 2. It is not a law with respect to corporations.
The presence of sub-s. (4) of s. 10 may be thought to indicate some doubt as to the validity of the section without it. That sub-section is an attempt, if all else fails, to confine the operation of s. 10 to the trading activities of a trading corporation, evidently in the hope that to do so would transform the operation of the section into that of a law with respect to trading corporations. The attempt is a transparent one, for even if the activities which s. 10 proscribes are confined to activities for the trading purposes of a trading corporation, it is nevertheless not a law in which the character of a trading corporation has any significance. Activities so confined are not necessarily trading activities. Ultimately anything a trading corporation does is for trading purposes, so that the attempt to narrow the operation of s. 10 by the application of sub-s (4) achieves little if anything. It does no more than direct the same command to trading corporations in another way. It certainly does not convert the law to one with respect to trading corporations.
For the foregoing reasons it is my view that s. 10 is not a law with respect to trading or foreign corporations and is wholly invalid. That renders it unnecessary for me to go on and consider whether the Hydro-Electric Commission is a trading corporation within the meaning of s. 51(xx). However, had I needed to do so, I should have come to the same conclusion and for the same reasons as the Chief Justice.
The Power to Make Special Laws for the People of Any Race
Section 51(xxvi) gives power to the Parliament to make laws for the people of any race for whom it is deemed necessary to make special laws. The meaning of the word "race" is otherwise imprecise, but the words "other than the aboriginal race in any State", which were deleted from par. (xxvi) by amendment, make it clear that the term "any race" includes a race which may be described as the Aboriginal race. That does not eliminate all problems of definition, but it is proper, I think, to assume in this case that the Aboriginal race referred to in World Heritage Properties Conservation Act is sufficiently identifiable and identified as a race within the meaning of Section 8 of that Act declares that it is deemed necessary to enact ss. 11, 13(7) and 14(5) as special laws for the people of the Aboriginal race. Section 11 is the significant section; it is the provision which prohibits, subject to the consent of the Minister, the same activities as are prohibited by s. 9 with an additional prohibition against removing any artifacts or relics situated on any site to which the section applies. There is also a general prohibition in sub-s (2) against doing anything without the consent of the Minister that damages or destroys or that is likely to result in damage to or the destruction of any site to which the section applies or any artifacts or relics on such a site. Sections 13(7) and 14(5) do not assist for present purposes. An Aboriginal site is defined as a site that is, or is situated within, identified property, the protection 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 is important to note that Aboriginal sites are by definition confined to identified property which, by definition contained in s. 2, is property forming part of the cultural heritage or natural heritage within the meaning of the Convention for the protection of the World Cultural and Natural Heritage. Section 8(3) enables s. 11 to be brought into operation by proclamation 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 likely to be damaged or destroyed. The activities referred to in s. 11 are prohibited except with the consent of the Minister. Whilst s. 13 by sub-s. (1) requires the Minister, in determining whether or not to give consent under s. 9, to have regard "only to the protection, conservation and presentation, within the meaning of the Convention, of the property", there is no such requirement in relation to the consent of the Minister under s. 11. Other than being required to give certain notices under ss. 13(3) and (4), the Minister is at large in determining whether or not to give consent under s. 11. It is significant that in giving or refusing consent, the Minister is not required to have regard to any matters which may be said to be of significance to the people of the Aboriginal race.
Koowarta v. Bjelke-Petersen makes two things clear. First, the phrase "the people of any race" in s. 51(xxvi) is apt to refer to people of a particular race. Secondly, to fall within s. 51(xxvi), a law must not only be deemed necessary for the people of a particular race, but it must be a special law for those people; see per Gibbs C.J., at p. 632, per Stephen J., at p. 642, per Wilson J., at pp. 657-658 and per Brennan J., at p. 666.
Whilst Parliament may deem a law to be necessary for the people of any race and so satisfy one of the requirements of s. 51(xxvi), it cannot by so doing determine that the law is a special law for those people and so preclude any examination of its legislative power: Australian Communist Party v. The Commonwealth (1951), 83 CLR 1 . That must remain a question to be determined by an examination of the law for the purpose of ascertaining whether it is in truth a special law for the people of any race. Moreover, it is essential to keep in mind the distinction between a law which is specially for the people of a particular race and a law which has a special application to the people of a particular race. In the former case, there will be greater difficulty in showing that the law is a special law within the meaning of s. 51(xxvi). No more need be done here than to admit, without going further, the possibility adverted to by Stephen J. in Koowarta v. Bjelke-Petersen, at p. 643, that the "necessary special quality might perhaps be sufficiently attracted by facts dehors the legislation". The mere fact that a law is more significant to people of a particular race than to others or is approved of by them to a greater extent than by others clearly does not make the law a special law for those people. It may be thought that the Racial Discrimination Act, certain provisions of which were declared valid in Koowarta v. Bjelke-Petersen, was a law which had a greater significance to people of the Aboriginal race than to most other people in this country, but the submission that it could be said to be a special law within the meaning of s. 51(xxvi) was rejected by those members of the Court who considered the matter in that case. In the latter case referred to above, that is, the case of a law which has a special application to the people of a particular race, if the special application is a special application in a legal sense, in that it creates a distinction between those people and others in the rights which it confers or the obligations which it imposes, the law is likely to be a special law within the meaning of s. 51(xxvi).
What is clear is that a law of general application and of significance to all is not a special law for the people of any race. In Koowarta v. Bjelke-Petersen this was pointed out by Stephen J., at p. 642:
"To be within power under par. (26) a law must be special in the sense that it is the particular race, or races, for whom it legislates that gives rise to the occasion for its enactment. The Racial Discrimination Act is not such a law. True, it legislates about race and proscribes discrimination upon the basis of race. But it is a perfectly general law, addressed to all persons regardless of their race and requiring that the members of all races shall be free from discrimination on account of race. It protects no particular race or races. As its recitals attest, its purpose is to give effect to the International Convention, a copy of which is scheduled to the Act. That Convention, in its opening recitals, stresses the promotion of universal respect for human rights and fundamental freedoms for all without distinction; universality of application lies very much at its heart. The Act takes from the Convention this quality, thereby denying to it the character of a special law to which par. (26) refers."
See also per Gibbs C.J., at p. 632, per Wilson J. at p. 658.
As was said by Brennan J. at p. 665: "it is of the essence of a law falling within par. (xxvi) that it discriminates between the people of the race for whom the special laws are made and other people."
Notwithstanding the declaration made in s. 8(1) of the World Heritage Properties Conservation Act, it is plain to my mind that the laws which are deemed necessary for the people of the Aboriginal race are not special laws for those people. The operative provisions, which consist of the prohibitions contained in s. 11, are addressed generally to all persons. The Aboriginal sites in relation to which those prohibitions may operate are, by definition, part of the cultural or natural heritage of the nation. The laws are not laws for the protection of Aboriginal sites or artifacts or relics. There may be, and probably are, Aboriginal sites or artifacts or relics which are far more significant to the people of the Aboriginal race, but the Act has nothing to say about them. It is concerned with "identified property" which is property of significance because it forms part of the cultural heritage or natural heritage of the nation. Even if it can be said, as the Act does, that some of the sites may be of special significance to the people of the Aboriginal race, that does not affect the general application of the relevant law. If that is not otherwise apparent, it is made abundantly clear by the fact that in giving or refusing his consent to do those things which s. 11 otherwise makes unlawful, the Minister is not required to have regard to matters of significance to the people of the Aboriginal race. He may grant or refuse his consent with regard to those matters which he considers significant generally. This generality may be contrasted with the particularity of s. 13(1) which requires the Minister in determining whether or not to give a consent pursuant to s. 9 in relation to any property to which that section applies, to have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property.
The laws which are contained in World Heritage Properties Conservation Act are no less laws relating to the protection and conservation of certain property forming part of the Australian cultural or natural heritage than are the other provisions of the Act. They are not special laws for the people of the Aboriginal race.
The Implied Inherent Power Said to Arise from Nationhood
The submission made by the Commonwealth under this head was directed to World Heritage Properties Conservation Act which provides that s. 9 may be brought into operation by proclamation in relation to identified property if the property is part of the heritage distinctive of the Australian nation by reason of specified qualities or by reason of its international or national renown and if, by reason of the lack or inadequacy of any other available means for its protection or conservation, it is peculiarly appropriate that measures for the protection or conservation of the property be taken by the Parliament and Government of the Commonwealth as the national parliament and government of Australia. It was submitted that the words "peculiarly appropriate" mean no more than "fitting" and that the paragraph gives a valid operation to s. 9 in respect of the property proclaimed under s. 6(3).
It is not, I think, unfair to say that this submission was but faintly put. From time to time references have been made in the cases to Commonwealth legislative powers which are "incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government"; see Attorney-General (Vict.) v. The Commonwealth (1945), 71 CLR 237 , at p. 269. Generally speaking, the references are explicable in terms of the power to spend, if such is an appropriate term to describe the power arising from ss. 81 and the Constitution in combination with such other powers as the Commonwealth may possess, and the executive power, both coupled if necessary with the incidental power (s. 51(xxxix)); see Ex parte Walsh and Johnson; In re Yates (1925), 37 CLR 36 , at p. 94; Australian Communist Party v. The Commonwealth, (supra), at p. 188; R. v. Sharkey, (supra), at pp. 135, 148; Burns v. Ransley (1949), 79 CLR 101 , at pp. 109-110, 116. However, if there is some power which extends beyond that which can be drawn from the power to spend, the executive power and the incidental power and which can be described as inherent in nationhood, then it has not, as Barwick C.J. said in Victoria v. The Commonwealth and Hayden, (supra), at p. 362, "been fully explored." Indeed, it has not really been explored at all.
I would seek to make only one comment in this case because it is relevant to some of my earlier remarks. In speaking of nationhood, it is important to distinguish between the nationhood which was achieved upon federation and the nationhood which may be said to be the result of the attainment of international personality. Powers, executive rather than legislative, may be inherent in nationhood of the latter kind, but they are derived from the recognition of a status rather than from any constitutional provision. It is to the Constitution which one must look to find powers which arise from nationhood of the former kind.
In this case, however, it is sufficient to say that even if it be thought by some to be fitting that measures for the protection or conservation of the property in question be undertaken by the Commonwealth because that property is part of the heritage of the Australian nation, no such view was taken in the division of power made by the Constitution. Although it can be said that the protection or conservation of the Australian cultural and natural heritage is in the national interest (and the submission can be put no higher), that does not carry with it the implication that the Commonwealth has power to legislate with respect to the matter. There are many matters which may be said to affect the national interest - matters such as education, health, the prevention and punishment of crime - which are not the subject of Commonwealth legislative power and are consequently within the residual powers of the States. Whatever inherent legislative powers the Commonwealth may have, if any, they do not, in my view, extend to the matters dealt with by the World Heritage Properties Conservation Act. I agree with what was said by Gibbs J. in Victoria v. The Commonwealth and Hayden, (supra) at p. 378:
"The legislative power that is said to be incidental to the exercise by the Commonwealth of the functions of a national government does not enable the Parliament to legislate with respect to anything that it regards as of national interest and concern; the growth of the Commonwealth to nationhood did not have the effect of destroying the distribution of powers carefully effected by the Constitution."
Conclusion
It will be apparent from what I have written that I regard s. 69 of the National Parks and Wildlife Conservation Act, to the extent that is authorizes the World Heritage (Western Tasmania Wilderness) Regulations, as invalid. It follows that, in my view, those regulations are also invalid. It will also be apparent that I am of the view that each of World Heritage Properties Conservation Act is beyond power and invalid. The operation of 10 and the Act and I also regard the latter sections (save for s. 6(1) and the proclamations made under them as invalid.
It follows as a consequence that in my view the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) is a valid enactment.
These conclusions make it unnecessary for me to consider the submissions made in relation to the acquisition of property on just terms, the abridgement of the right to use the waters of rivers or the interference with State legislative or executive functions or with prerogative powers. It is also unnecessary for me to answer specifically the questions asked in each action. I would answer those questions in accordance with the views which I have expressed.