Commonwealth v Tasmania (The Tasmanian Dam Case)

158 CLR 1
46 ALR 625

---

(Judgment by: MURPHY J)

COMMONWEALTH v. TASMANIA (The Tasmanian Dam Case)

Court:

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

Subject References:
Constitutional Law (Cth)
International Law

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

BRISBANE

---

Judgment by:
MURPHY J

MURPHY J. The Gordon River Hydro-Electric Power Development Act 1982 (Tas.) authorized the construction of a dam by the Hydro-Electric Commission in the wilderness area of South West Tasmania. Unless that State Act is inconsistent with federal law there is no reason to doubt its validity. However, the effect of both the National Parks and Wildlife Conservation Act 1975 (Cth)s. 69 and the World Heritage Properties Conservation Act 1983 (Cth) (together with the instruments made under each) is to prevent the building of the dam and other conduct without the consent of a federal Minister. If either of these Acts is valid, there is clear inconsistency between the State Act and federal law. If there is such an inconsistency it is resolved by supremacy clauses, s. 5 of the covering clauses and the Constitution, in the Commonwealth of Australia Constitution Act. Section 5 of the covering clauses states:

"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; . . ."

Section 109 of the Constitution states:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

The question is whether either of the Acts, to the extent that it, or the instruments (regulations or proclamations) made under it, prohibits the construction of the dam or other conduct within the area without the consent of a federal Minister, is within the legislative powers of the Federal Parliament. If so, to that extent it is valid, and by force of the Constitution, prevails over the State Act.

The suggested bases of legislative power for the two Acts are: the external affairs power (s. 51(29)); the corporation's power (s. 51(20)); the power to make special laws for the people of any race (s. 51(26)); and the inherent nationhood power. Tasmania disputes that any of these authorize the Acts and contends that even if these powers were otherwise available they are subject to the Constitution, which renders them invalid because they abridge the right of the State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. It also claims that the Acts amount to acquisitions of property from the State without just terms contrary to the Constitution.

Before dealing with those powers and prohibitions, I will refer to the presumptions of validity and of facts essential to validity, and to the doctrines of reserved State powers, and "the federal balance".

Presumption of validity

An Act of Parliament is the authentic expression of the will of the people through their elected representatives. There is a strong presumption of the constitutionality or validity of every Act. However as Tasmania asserted that there was no presumption of validity, an examination of the status of the presumption is desirable.

The presumption of validity has been referred to by many judges of this Court. Isaacs J. stated:

"Nullification of enactments and confusion of public business are not lightly to be introduced. Unless, therefore, it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will." Federal Commissioner of Taxation v. Munro (1926), 38 CLR 153 , at p. 180.

On appeal, this passage was specifically approved by the Privy Council; Shell Company of Australia Ltd v. The Federal Commissioner of Taxation (1930), 44 CLR 530 , at p. 545.

Starke J. said: "Every legislative Act, regulation or order must find some warrant in the Constitution, though the presumption is in favour of validity." Stenhouse v. Coleman (1944), 69 CLR 457 , at p. 466; see also Dixon J., at p. 470. Dixon, McTiernan and Fullagar JJ. observed that parties to issues of constitutional validity, even those interested to support the legislation, "usually prefer to submit such an issue in the abstract without providing any background of information in aid of the presumption of validity and to confine their cases to dialectical arguments and considerations appearing on the face of the legislation." Wilcox Moffin Ltd v. State of NSW (1952), 85 CLR 488 , AT P. 507; (my emphasis).

The presumption was recognised by Latham C.J. in South Australia v. Commonwealth (1941), 65 CLR 373 , at 432; by Fullagar J. in Australian Communist Party v. The Commonwealth (1951), 83 CLR J, at p. 255 and by Kitto J. in Breen v. Sneddon (1961), 106 CLR 406 , at p. 414. Mr Justice Dixon said: "In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour", Attorney-General (Vic.); Ex rel. Dale v. The Commonwealth (1945), 71 CLR 237 , at p. 267. I have referred to the presumption in a series of cases from Attorney-General (WA) v. Australian National Airlines Commission (1976), 138 CLR 492 , at p. 528-529 to Gazzo v. Comptroller of Stamps (Vic); Ex parte Attorney-General (Vic.) (1981), 56 ALJR 143, at p 153, but have taken the view that it does not apply where the challenge to an Act is based on a constitutional prohibition or guarantee.

Many Australian commentators have referred to it. Inglis Clark stated:

"The Federal Judiciary will at all times be guided by the fundamental rule the constant observance of which is the foundation of public confidence in its decisions affecting its own position under the Constitution, and which requires that the validity of any apparent exercise of legislative authority which has been promulgated in proper form is always to be presumed until the alleged law is clearly demonstrated to be in excess of the contents of the legislative power conferred by the Constitution, and if at any time the question is a doubtful one, the decision must be in favour of the validity of the impugned law", Studies in Australian Constitutional Law (1901) p. 33.

Moore referred to it as "the ordinary presumption in favour of the validity of a legislative Act", The Constitution of the Commonwealth of Australia (2d ed.), (1910) p. 383. Sawer has written that the presumption of validity "meant little to the High Court from 1903-13, a good deal from 1920-42 and has again meant very little since about 1950, but could become a real factor once again" (Australian Federalism in the Courts (1967) p. 119; see also Burmester "The Presumption of Constitutionality", (1983) 13 Federal Law Review) Wynes states: "in construing an enactment the constitutional validity of which is in issue, the Court will not hold it to be ultra vires unless the invalidity is clear beyond all doubt; the presumption is always in favour of validity"; Legislative Executive and Judicial Powers in Australia (5th ed. (1976) p. 35.).

The presumption of validity or constitutionality is a fundamental rule of constitutional law in countries which have written constitutions which limit the powers of legislatures. "The presumption of the validity of the statue is employed in most countries with written constitutions containing supremacy provisions"; Groves Comparative Constitutional Law (1963) p. 5.

United States: The presumption was "thoroughly established" by 1811; see Thayer "The Origin and Scope of the American Doctrine of Constitutional Law", (1893-94) 7 Harvard Law Review, 129, at p 150. It is also known as the doctrine of "reasonable doubt" after the classic statement by Washington J. in Ogden v. Saunders 12 Wheat (25 U.S.)(1827)213, at p 270:

"It is but a decent respect due to the . . . legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt."

See also Fletcher v. Peck 6 Cranch 10 U.S.(1810) 87, at p 128, Marshall J. Pure Oil Co v State of Minnesota 248 U.S.(1918), 158, at p. 162-163; Chicago Board of Trade v. Olsen 262 U.S.(1923),1, at pp. 37-38; Gitlow v. New York 268 U.S.(1925), 652, at p 668; Davies Warehouse Co v. Bowles 321 U.S.(1944),144, at p 153; United States v. Five Gambling Devices 346 U.S.(1953), 441, at p 449; Hodel v. Virginia Surface Mining and Reclamation Association 452 U.S.(1981),264, at p 276.

The United States Supreme Court referred to "the rule that every reasonable intendment must be indulged in favor of the constitutionality of a legislative power exercised" (First National Bank of Bay City v. Union Trust Co. 244 U.S.(1917), 416, at p 422).

It has been described as a well established rule that the judges will always "lean in favour of the validity of a legislative Act; that if there be a reasonable doubt as to the constitutionality of a statute, they will solve that doubt in favour of the statute; that where the legislature has been left a discretion they will assume the discretion to have been wisely exercised; that where the construction of a statute is doubtful, they will adopt such construction as will harmonize with the Constitution, and enable it to take effect"; Bryce, The American Commonwealth, (1912) vol 1 p 447. The unanimity with which the doctrine of reasonable doubt has come to be accepted "as the only correct and orthodox rule of judicial construction "is attested by "subsequent judicial utterances numbering into the thousands as well as by the statements of practically every commentator in the field of constitutional law"; (Cushman in Selected Essays on Constitutional Law (ed. Association of American Law Schools,(1938), at PP.527,532). The presumption is, however, given a narrower scope of operation, or not applied, when the legislation appears on its face to violate a specific constitutional prohibition or guarantee of freedom. There are now very few challenges to federal legislation on the ground that a law is not one with regard to a constitutional head of power.

Canada: The practice of the Supreme Court of Canada has been consistent with a presumption of constitutionality for both provincial and federal laws; see Weiler "The Supreme Court and the Law of Canadian Federation" (1973), University of Toronto Law Journal at p 307. Strong J. stated that the Court's duty in determining the validity of provincial statutes is "to make every possible presumption in favour of such Legislative Acts" (Severn v The Queen (1878)2 S.C.R.70, at p 103); see also Valin v. Langlois (1879) 3SCR1, at p 28; In re Railway Act Amendment (1904)36SCR136, at p 143; Hewson v Ontario Power Co. (1905)36S.C.R.596, at p 603; Reference re Farm Products Marketing Act (1957)7D.L.R.(2d) 257, at p 311.

In the Constitutional Law of Canada (1977) Hogg writes at p 47:

"The legislative decision should always receive the benefit of a reasonable doubt, and should be overridden only where its invalidity is clear. There should be, in other words, a presumption of constitutionality. In this way a proper respect is paid to the legislators, and the danger of covert (albeit unconscious) imposition of judicial policy preferences is minimized." See also Lefroy Legislative Power in Canada (1898) pp.260-269; Driedger The Construction of Statutes (1974)p 167;Magnet "The Presumption of Constitutionality", Osgoode Hall Law Journal, vol 18 (1980) p 87.

Malaysia: There is a presumption - "perhaps even a strong presumption - of the constitutional validity of the impugned section" (Public Prosecutor v. Datuk Harun bin Haji Idris,(1976)2M.L.J.116, at p 117; Datuk Haji Harun bin Haji Idris v. Public Prosecutor, (1977) 2MLJ155, at p 166)

Phillipines: Fernando J., for the Supreme Court, stated that the presumption of validity is one of the "constitutional doctrines of a fundamental character" (Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manilla (1967), 20S.C.R.A. 849, at p 856- 857. See also Fernando, The Power of Judicial Review (1968),pp.110-116).

India: The presumption is always in favour of the constitutionality of an enactment and "the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles" (see Chiranjit Lal Chowdhuri v. Union of India, (1950)1SCR 869, at p879; State of Bombay v Balsara, (1951)38A.I.R.(S.C.)318, at p 326; V.M. Syed Mohammad & Co v. State of Andhra, (1954) S.C.R.1117, at p 1120; Shri Ram Krishna Dalmia v. Shri Justice Tendolkar (1959) S.C.R. 279, at p 297; Madhubhai Amathalal Gandhi v. Union of India, (1961) 1 SCR 191 , at p209; GK Krishnan v The State of Tamil Nadu, (1975) 2 S.C.R. 715, at p 729; Seervai Constitutional Law of India (1967), p. 54; Jain Indian Constitutional Law (1978), p 411).

Ireland: When the Court has to consider the constitutionality of a law "it must be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established" (Pigs Marketing Board v. Donnelly (Dublin) Ltd. (1939),I.R.413, at p 417). An interpretation favouring the validity of an Act "should be given in cases of doubt" (East Donegal Co-operative Livestock Mart Ltd v. Attorney-General, (1970) I.R.317, at p 341).

The presumption of constitutionality "springs from, and is necessitated by, that respect which one great organ of the State owes to another", Buckley v. Attorney-General,(1950) I.R.67, at p 80; see also In re Article 26 and the Offences against the State (Amendment) Bill, (1940),(1940)I.R.470, at p 478; In re Article 26 and the School Attendance Bill, (1942),(1943)I.R.334, at p. 344; Foley v. The Land Commission, (1952) I.R. 118, at p. 129; National Union of Railwaymen v. Sullivan, (1947)I.R.77, at p 100; McDonald v. Bord na gCon (1965)I.R.217, at p 239; In re Padraic Haughey, (1971)I.R.217, at p 227; Boland v. An Taoiseach, (1974)I.R.338, at p 362.

Pakistan: The Court "should lean in favour of upholding the constitutionality of . . . legislation", Province of East Pakistan v. Sirajul Hug Patwari, (1966) 1 P.L.D. (S.C.)854, at p 954; Mahmood The Constitution of Pakistan (1965) p 16.

Bangladesh: Whenever legislation is challenged as unconstitutional "the presumption is in favour of its constitutionality", Munim J. Rights of the Citizen under the Constitution and Law (1975) p 24.

Japan: The Supreme Court has accorded a "strong presumption of constitutionality to both challenged legislation and administrative decrees", Murphy and Tanenhaus Comparative Constitutional Law Cases and Commentaries (1977) p 44; see also the "Sunakawa Case" in Series of Prominent Judgments of the Supreme Court upon Questions of Constitutionality (No 4)(1960)pp.6-7; David and Brierley Major Legal Systems in the World Today (2d ed. (1978),p 499; Tanaka "Democracy and Judicial Administration in Japan",(1959-60) Journal of the International Commission of Jurists.2 at pp7.10).

Federal Republic of Germany: The Federal Constitutional court takes the view that "there is always a presumption that a statute is consonant with the Constitution" (Rupp "Judicial Review in the Federal Republic of Germany",(1960) American Journal of Comparative Law, 9 at pp.29, 38; Hahn "Trends in the Jurisprudence of the German Federal Constitutional Court", (1968-69) American Journal of Comparative Law, 16, at pp.570,572).

It is therefore apparent that in other countries where laws may be challenged as beyond the powers of a limited legislature, the presumption is regularly applied by the courts. To ignore the presumption of validity is to deal cavalierly with the representatives of the people and the legislative power entrusted to them by the Constitution. The fact that in Australia the presumption has often been overlooked may help to explain the considerable number of laws, extraordinary by the standards of other national courts, which have been held by this Court to be beyond the powers of the Parliament.

Presumption of Facts Essential to Validity

A corollary of the presumption of validity is that the existence of all facts and circumstances essential to the validity is presumed. The U.S. Supreme Court has stated: "If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did"(Munn v. People of Illinois(1877),24 Law Ed 77, at p 86)and "when the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts", Borden's Farm Products v. Baldwin 293 U.S.(1934),194, at p 209. Those challenging the legislative judgment "must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker", Vance v. Bradley 440U.S.(1979),93, at p 111).(See also Lindsley v. Natural Carbonic 220U.S. (1911),61, at p 78; Clarke v. Deckebach 274U.S. (1927), 392, at p 397; Lawrence v. State Tax Commissioner 286 U.S.(1932),276, at p 283; U.S. v. Carolene Products Co. 304U.S.(1938),144, at p 152; McGowan v. Maryland 366U.S.(1961), 420, at p 426; U.S. v. Maryland Savings-Share Ins. Corp. 400U.S. (1970),4, at p 6:Schilb v. Kuebel 404U.S.(1971), 357, at p 364;McGinnis v. Royster 410U.S.(1973),263, at p 274;U.S. Railroad Retirement Board v. Fritz 449 U.S.(1980), 368, at p 376.

The Supreme Court of India also presumes the existence of facts essential to validity (see Dalmia's Case, at p 297), as does the Supreme Court of the Philippines; United States v. Salaveria (1918), 39 Phil 102, at p 111.(See also Bikle "Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action",(1924-25), Harvard Law Review, 38, at p 6;"The Consideration of Facts in 'Due Process' Cases",(1930) Columbia Law Review, 30, at p 360.)

The Fallacy of Reserved State Powers

The grants of legislative power in the Constitution, s 51, are plenary. There is no reservation from any such grant unless the reservation is explicitly stated in the grant; Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (the Engineers' Case) (1920), 28 CLR 129 , at p 154. Despite the fact that the doctrine of implied reserved State powers was discredited in the Engineer's Case, it is advanced, not openly but indirectly, in almost every case in which an Act is challenged as having no head of legislative power. Dixon J. explained that it is a fundamental error to regard a State Act as if it were an exercise of an express grant, contained in the Constitution, to the States of a power to make laws with respect to the specific subject of the State Act: it is an exercise of a general residuary legislative power. He said:

"The content and strength of this power are diminished and controlled by the Commonwealth Constitution. It is of course a fallacy, in considering what a State may or may not do under this undefined residuary power, to reason from some general conception of the subjects which fall within it as if they were granted or reserved to the States as specific heads of power. But no fallacy in constitutional reasoning is so persistent or recurs in so many and such varied applications"; In Re Foreman & Sons Pty Ltd; Uther v. Federal Commissioner of Taxation and Another (1947)74C.L.R.508,530.

It follows that the question under s 51 "is always whether a particular enactment is within Commonwealth power. It is never whether it invades a State's domain"; Windeyer J. Victoria v. The Commonwealth (1971)122CLR353,400 However Tasmania, while claiming to disavow the doctrine, also claimed that the power to develop and to control the environment and "wastelands" of Tasmania belonged to the State Parliament to the exclusion of the Commonwealth Parliament.

The Federal Balance

Closely allied to the fallacy of reserved State powers is the doctrine of federal balance. Novel uses of federal legislative power challenged by the States are said to upset "the federal balance". According to this proposition, when a challenged law is supported as an exercise of the power to make laws with respect to any subject enumerated in s 51, the Court should disregard the federal power sought to be relied upon, and conceive a federal balance between the other enumerated federal powers and State powers. Then it is claimed that the exercise of the federal power sought to be relied upon would upset the federal balance. This has occurred in relation to external affairs (see The King v. Burgess;Ex parte Henry (1936), 55 CLR 608 ; Koowarta v. Bjelke Petersen (1982),56 ALJR 625 and this case) and corporations (see Actors and Announcers Equity v. Fontana Films Pty Ltd (1982), 56 ALJR 366) and marriage (see Russell v. Russell (1976), 134 CLR 495 and Gazzo v. Comptroller of Stamps (Vic); Ex parte Attorney-General (Vic.) (1981) 56 ALJR 143 )and even bankruptcy; see Storey v. Lane (1981), 55 ALJR 608.

In this case, it was contended that the use of the external affairs or the corporations power to support the Acts would upset "the federal balance". There are two serious objections to this doctrine. One is that the State powers brought into the balance can only mean "reserved State powers". The other is that no rational argument is advanced for disregarding the particular federal power relied upon when achieving the balance. It builds upon the doctrine of reserved State powers by a fallacious method of "balancing" those notional State powers with some only of the undoubted federal powers. As advanced in this and recent constitutional cases the doctrine of federal balance presents only a balance between fallacies.

Counsel for Tasmania, relied on Melbourne Corporation v. The Commonwealth (1947), 74 CLR 31 ; Victoria v. The Commonwealth (1971), 122 CLR 353 and Koowarta, to argue that the Acts would prevent the continued existence of the State or its capacity to function. The Acts manifestly do not have such an operation; the argument is frivolous. The mere fact that the Acts impair, undermine, make ineffective or supersede various State functions or State laws is an ordinary consequence of the operation of federal Acts and does not affect their validity.

Any "extravagant" use of the granted powers in the actual working of the Constitution is a matter to be guarded against by the constituency and not by the Courts; Engineers' Case, p 151.

External Affairs Power (Constitution(s 51(29))

The power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs authorises the Parliament to make laws with respect to external affairs which govern conduct, in as well as outside, Australia. The core of Tasmania's case was that the construction of the dam and the regulation of the South West area of Tasmania were purely domestic or internal affairs of the State. However it is elementary that Australia's external affairs may be also internal affairs (see Burgess; New South Wales v. The Commonwealth (1975), 135 CLR 337 (the Sea and Submerged Lands Case) and Koowarta); examples are control of traffic in drugs of dependence, diplomatic immunity, preservation of endangered species and preservation of human rights.

The circumstances which bring a law within the power have not been stated exhaustively. It was recognized in Burgess, and is even clearer now, that along with other countries, Australia's domestic affairs are becoming more and more involved with those of humanity generally in its various political entities and groups. Increasingly, use of the external affairs power will not be exceptional or extraordinary but a regular way in which Australia will harmonize its internal order with the world order. The Constitution in its references to external affairs (s 51(29)) and to matters arising under treaties or affecting consuls or representatives of other countries (s 75) recognizes that while most Australians are residents of States as well as of the Commonwealth, they are also part of humanity. Under the Constitution Parliament has the authority to take Australia into the "one world", sharing its responsibilities as well as its cultural and natural heritage.

The power extends to the execution of treaties by discharging obligations or obtaining benefits, but it is not restricted to treaty implementation. The power would be available for example where, without any treaty, Australia wished to assist in an overseas famine. No doubt the Parliament could authorize acquisition of food in Australia (albeit on just terms, in accordance with s 51(31)) for relief of the famine and could legislate to prevent hoarding and profiteering in regard to the food remaining in Australia. Again, suppose that in the next few decades, because of the continuing rapid depletion of the world's forests and its effect on the rest of the biosphere, the survival of all living creatures becomes endangered. This is not a fanciful supposition; see The Global 2000 Report to the President of the United States, (1980). Suppose the United Nations were to request all nations to do whatever they could to preserve the existing forests. Let us assume that no obligation was created (because firewood was essential for the immediate survival of people of some nations). I would have no doubt that the Australian Parliament could, under the external affairs power, comply with that request by legislating to prevent the destruction of any forest, including any State forest. Again, without any treaty but in order to avert threatened military or economic sanctions by another nation, the Parliament could legislate on a subject which was otherwise outside power.

Although external affairs are mostly concerned with our relationships with other nation States, they are not exclusively so concerned. There may be circumstances where Australia's relationship with persons or groups who are not nation States, is part of external affairs. The existence of powerful transnational corporations, international trade unions and other groups who can affect Australia, means that Australia's external affairs, as a matter of practicality, are not confined to relations with other nation States.

In Koowarta, the majority considered that if the subject was one of international concern this brought it within the external affairs power. For the reasons I have given it is not necessary that the subject be one of concern demonstrated by the other nation States generally. For example concern expressed by the world's scientific community or a significant part of it over action or inaction in Australia might be enough to bring a matter within Australian external affairs. However even if international concern is not always necessary, it is sufficient. External concern over human rights violations often extends internal affairs into external affairs.

It is preferable that the circumstances in which a law is authorized by the external affairs power be stated in terms of what is sufficient, even if the categories overlap, rather than in exhaustive terms. To be a law with respect to external affairs it is sufficient that it:

(a)

implements any international law; or

(b)

implements any treaty or convention whether general (multilateral) or particular; or

(c)

implements any recommendation or request of the United Nations Organization or subsidiary organizations such as the World Health Organization, The United Nations Education, Scientific and Cultural Organization, The Food and Agriculture Organization or the International Labour Organization; or

(d)

fosters (or inhibits) relations between Australia or political entities, bodies or persons within Australia and other nation States, entities, groups or persons external to Australia; or

(e)

deals with circumstances or things outside Australia; or

(f)

deals with circumstances or things inside Australia of international concern.

The fact that a subject becomes part of external affairs does not mean that the subject becomes, as it were, a separate, plenary head of legislative power. If the only basis upon which a subject becomes part of external affairs is a treaty, then the legislative power is confined to what may reasonably be regarded as appropriate for implementation of provisions of the treaty. This does not mean that either all of the provisions must be implemented or else none can be implemented. It does not mean that there must be any rigid adherence to the terms of the treaty. Again, if the subject of external affairs is some other circumstance, the legislative power will extend to laws which could reasonably be regarded as appropriate for dealing with that circumstance.

The world's cultural and natural heritage is, of its own nature, part of Australia's external affairs. It is the heritage of Australians, as part of humanity, as well as the heritage of those where the various items happen to be. As soon as it is accepted that the Tasmanian wilderness area is part of world heritage, it follows that its preservation as well as being an internal affair, is part of Australia's external affairs.

As at December 1982, there were some 64 items on the World Heritage List maintained by the World Heritage Commission under the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (the Convention), Art. 11(2); see Schedule to the World Heritage Properties Conservation Act 1983 (Cth). These included cultural items of world renown such as the Pyramid fields of Egypt; Aksum and the Rock-hewn churches of Lalibela in Ethiopia; the decorated caves of the Vezere Valley in France; the Mesa Verde in the United States, the ruins of Antigua in Guatemala and the sacred city of Anuradhapura in Sri Lanka.

The natural heritage on the World Heritage List includes:

Algeria: The M'Zab Valley.

Argentina: Los Glaciares National Park.

Australia: Kakadu National Park; Great Barrier Reef; Willandra Lakes

Region; Western Tasmania Wilderness National Parks; Lord

Howe Island Group.

Canada: Nahanni National Park;

Dinosaur Provincial Park; Anthony Island; Head-Smashed-In

Bison Jump Complex.

Ecuador: The Galapagos Islands.

Ethiopia: Simien National Park; Lower Valley of the Awash; Lower

Valley of the Omo.

Guatemala: Tikal National Park.

Guinea & Ivory Coast:

Mount Nimba Strict Nature Reserve.

Honduras: Rio Platano Biosphere Reserve.

Ivory Coast: Tai National Park.

Nepal: Sagarmatha National Park; Kathmandu Valley.

Poland: Bialowieza National Park.

Panama: Darien National Park.

Senegal: Island of Goree; Niokolo-Koba and Djoudj National Parks.

Seychelles: Aldabra Atoll.

Tanzania: Ngorongoro Conservation Area; Serengeti National Park;

Selous Game Reserve.

U.S.A.: Yellowstone; Grand Canyon, Everglades, Redwood, Mammoth

Cave and Olympic National Parks.

Yugoslavia: Durmitor National Park; Plitvice Lakes National Park.

Zaire: Virunga, Garamba and Kahuzi-Biega National Parks.

Wilderness regions such as that of South West Tasmania are thus common on the World Heritage List.

The Preamble to the World Heritage Convention states:

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

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

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

The concern of nations which lead to the Convention is understandable. In the ancient mediterranean civilization there were seven "wonders of the world": the Pyramids of Egypt, the Hanging Gardens of Babylon, the Statue of Zeus at Olympia, the Temple of Artemis at Ephesus, the Mausoleum of Halicarnassus, the Colossus of Rhodes and the Pharos of Alexandria. Of these only the Pyramids remain. It is significant that the Convention provides for a List of World Heritage in Danger (Art. 11(4)). It is notorious that much of the world's natural and cultural heritage is endangered from periodic wars and natural decay and man-made pollution; see Cousteau The Cousteau Almanac - An Inventory of Life on Our Water Planet (1981); The Global 2000 Report. Dangers such as those of acid rain, radioactive fallout, destruction of the forests and extinction of many plant and animal species indicate that the preservation of the world's cultural and natural environment is dependent upon international cooperation and international concern; see Barros and Johnson The International Law of Pollution (1974).

The cooperation of Australia with other nation States to preserve the world cultural and natural heritage falls easily within the external affairs power. It is part of Australia's external affairs to participate with other nations bodies and persons in this process of declaring that world renowned monuments, scenic and architectural sites belong to the world, and not merely the nation or the province where they are situated. It is also part of Australia's external affairs to cooperate with others, each nation doing what it can to preserve the sites within its area, as part of a web of international regulation and supervision of such sites. Even if there were no treaty the preservation of world heritage is part of Australia's external affairs and federal laws directed to preservation of any part of that heritage in Australia, would be within the legislative powers of the Parliament.

International concern about preservation of the world's heritage was amply demonstrated. The Commonwealth put in evidence a list of international agreements dating from the early part of this century dealing with the preservation of the world's cultural and natural heritage; examples are Convention Relative to the Preservation of Fauna and Flora in their Natural State Nov. 8, 1933 (1933) L.N.T.S. 172, at p. 242; Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere Oct. 12, 1940 (1953) U.N.T.S. 161, at p. 193; Convention for the Protection of Cultural Property in the Event of Armed Conflict May 14, 1954 (1956) U.N.T.S. 249, at p. 240. The principal agreement is the World Heritage Convention 1972.

International concern about the preservation of the world's natural heritage is a particular aspect of the intense international concern about conservation of the world's natural resources. This led in 1980 to a new global programme known as World Conservation Strategy, compiled by the International Union for the Conservation of Nature and Natural Resources, the United Nations Environment Program and the World Wildlife Fund, in collaboration with the Food and Agricultural Organization of the United Nations and UNESCO. Aimed at protection of vital habitats, it has identified regional ecosystems in need of immediate and special attention.

Australia, sharing in the international concern, on the initiative of former Prime Minister Fraser, has developed a National Conservation Strategy which adopts the three main objectives of living resource conservation identified in the World Conservation Strategy. These are:

"

(a)

to maintain essential ecological processes and life support systems (such as soil regeneration and protection, the recycling of nutrients, and the cleansing of waters), on which human survival and development depend;

(b)

to preserve genetic diversity (the range of genetic material found in the world's organisms), on which depend the breeding programs necessary for the protection and improvement of cultivated plants and domesticated animals, as well as much scientific advance, technical innovation, and the security of the many industries that use living resources;

(c)

to ensure the sustainable utilisation of species and ecosystems (notably fish and other wildlife, forests and grazing land), which support millions of rural communities as well as major industries." See "The National Conservation Strategy", George Wilson Director, National Conservation Strategy Task Force, UNESCO Review, No. 8, May 1983.

Other agreements reflect international concern about the environment and its resources and support the concept of the "Common Heritage of Mankind"; see Antarctica Treaty (1961), 402 U.N.T.S. at p. 71 (reprinted: (1960), American Journal of International Law, 54, at p 476); Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies Art.1 (1967) U.N.T.S., 610, at p 205 (reprinted: (1967), American Journal of International Law, 61, at p 644); 1971 Declaration of the Principles Governing the Seabed and Ocean Floor and The Subsoil Thereof Beyond the Limits of National Jurisdiction, G.A. res. 2749 (XXV) (reprinted: (1971), International Legal Materials, 10, at p 220); 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies Art. 11, U.N. Doc. A/34/664 (reprinted: (1979), International Legal Materials, 18, at p. 1434); Convention on the Law of the Sea, Art. 136, U.N. Doc. A/Conf.62/122 (reprinted: (1982), International Legal Materials, 21, at p. 1261); Arnold "The Common Heritage of Mankind as a Legal Concept", (1975), International Lawyer, 9, at p. 156; Christol "The Common Heritage of Mankind Provision in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies", (1980), International Lawyer, 14, at p. 429.

The preservation of the world's heritage must not be looked at in isolation but as part of the cooperation between nations which is calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace and displace those of narrow nationalism and alienation which promote war. The United Nations came into being because of the Second World War. In its constitutive documents, proceedings and evolution over forty years, there has been a continuing emphasis on removing the causes of war - the denial of human rights and intense nationalism. Thus the preamble to the United Nations Charter (1945) states:

"We the Peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind . . . and for these ends to practice tolerance and live together in peace with one another as good neighbours . . . have resolved to combine our efforts to accomplish these aims".

Through bodies such as the United Nations Educational, Scientific and Cultural Organization, under whose auspices the convention was created, the United Nations has attempted to educate the people of the world to think of themselves as one, to break down the intense nationalistic attitudes which lead to war. The encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual world heritage, is important in the endeavour to avoid the destruction of humanity.

The Constitution of UNESCO (1945) declares:

"'That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed . . .

"That ignorance of each other's ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war . . .

"That a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that the peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind'."

Protecting the world's cultural and natural heritage and thus fostering the intellectual and moral solidarity of mankind, in promoting the elimination of war, advances the foremost object of international relations.

Obligation: Although it is not necessary for validity that the federal law implement some treaty obligation, the Acts do so. There has been a continuing dispute about the nature of obligation in international law; see Holder and Brennan, The International Legal System (1972) p. 41; Brierly, The Basis of Obligation in International Law (1958); Schachter, "Towards a Theory of International Obligation" in The Effectiveness of International Decisions (Schwebel ed., 1971) p. 9. This has increased with the recent widesread use of the consensus procedure in international organizations in the production of treaties and resolutions; see Falk "On the Quasi-Legislative Competence of the General Assembly", (1966), American Journal of International Law, 60, at p. 782; Vignes "Will the Third Conference on the Law of the Sea Work According to the Consensus Rule?", (1975), American Journal of International Law, 69, at p. 119; Buzan "Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea" (1981), American Journal of International Law, 75, at p. 324.

The Convention should be interpreted giving primacy to the ordinary meaning of its terms in their context and in the light of its object and purpose (Art. 31(1) Vienna Convention on the Law of Treaties, A.T.S. (1974) No. 2 (reprinted: (1969), American Journal of International Law, 63, at p 875), which endorsed existing principles). So interpreted, it contains obligations which the Acts tend to carry out. The preamble speaks of the necessity for creating "an effective system of collective protection". Australia has accepted the "primary" duty for "protection, conservation, presentation and transmission to future generations" of the world cultural and natural heritage situated on its territory (Art. 4). It is obliged to "do all it can to this end, to the utmost of its own resources" (Art. 4). Article 5, states: "To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this convention shall endeavour, in so far as possible, and as appropriate for each country . . . to take the appropriate legal . . . measures necessary . . . "

In considering treaty obligations for the purposes of the external affairs power, it is an error to assume that they must have the same characteristics and should be interpreted in the same way as contractual obligations in municipal law. However, even in our domestic law, obligations are often framed similarly. For example, in occupational safety laws a command to take a precaution is often qualified by the words "so far as is reasonably practicable". Nevertheless such provisions have repeatedly been held to impose a direct obligation, a duty to take the precaution if it is practicable, and if it is not, to do it as far as it is; see Butler (or Black) v. Fife Coal Co Ltd., [1912] A.C. 149 ; Duff v. Lake George Mines Ltd. (1960), S.R.(NSW) 83; Wellington v. Lake George Mines Ltd (1962), S.R.(NSW) 326; Australian Oil Refining Pty Ltd v. Bourne (1980), 54 ALJR 192, 194-195. Taking into account the imprecise standards of obligation under international law, for the purposes of the external affairs power, the Convention, in particular Art. 5, imposes a real obligation.

Federal Clause: The federal clause (Art. 34) in the Convention is not material. It seemed to be common ground that Art. 34 does not determine which organ in a federal State should discharge its obligation; this requires examination of its own Constitution. If the provisions of a treaty are within the competence of the Federal legislature then the Article has no relevant operation; see Bernier, International Legal Aspects of Federalism (1973), p. 172; Looper "'Federal State' Clauses in Multilateral Instruments", (1955-56), British Yearbook of International Law, 32, at p 162; Liang, "Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments", (1951), American Journal of International Law, 45, at p. 108).

Section 69 of the National Parks and Wildlife Conservation Act 1975 authorises the making of regulations for giving effect to a number of agreements between Australia and other countries (The Convention on Wetlands of International Importance, especially as Waterfowl Habit at 1971; the Convention for the Conservation of Antarctic Seals 1972;Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973; the Australia-Japan agreement for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment 1974 and the World Heritage Convention 1972). Section 69 is a regulation - making power independent of the general regulation making power in the Act (s. 71). It is authorised by the external affairs power at least so far as it applies to the World Heritage Convention. The World Heritage (Western Tasmania Wilderness) Regulations are valid. The parts of the World Heritage Properties Conservation Act 1983 (Cth) which rely upon the external affairs power are also valid. Apart from any wider basis of validity, all the provisions of the challenged laws are reasonably appropriate for implementation of the World Heritage Convention.

Corporations power (Constitution (s. 51(20))

The corporations power is relied upon for those parts of the World Heritage Properties Conservation Act 1983 (Cth), particularly 10, which are directed specifically to foreign or trading corporations, and which in detail make it unlawful for such a corporation to do anything, without the consent of the Minister, which might injure the South West Tasmanian site. The corporations power is plenary. It must be read with all the generality which the words of s. 51(20) admit. That power authorizes the Parliament to make laws with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. It enables Parliament to make laws covering all internal and external relations of all or any foreign corporations and trading or financial corporations; to enact a civil and criminal code dealing with the property and affairs of such corporations, or a law dealing with any aspect of the affairs of any such corporation or corporations (see Fontana's Case). The power under s. 51(20) extends to any command affecting the behaviour of a foreign corporation or a trading or financial corporation and is not restricted to commands about the trading activities of trading corporations or about the financial activities of financial corporations. The Act in so far as it regulates the conduct of such corporations is valid.

The constitutional description of trading corporations includes those bodies incorporated for the purpose of trading and also those corporations which trade; see Ex parte National Football League Western Australia; re Adamson (1979), 23 ALR 439 , at p 477; State Superannuation Board v Trade Practices Commission (1982), 44 ALR 1 ; (1981), 41 ALR 279 ; Fencott v Muller (1983 Federal Court Reporter, 150). The Hydro-Electric Commission incorporated by and under the Hydro-Electric Commission Act 1944 (Tas.) is a trading corporation both by virtue of its constitution and its activities which make it a major trader. Once it is established that the Commission is a trading or financial corporation it is immaterial that it has other functions.

It is a fallacy to suggest that a law with respect to a subject within s 51 is invalid because it is also a law on a subject not within s. 51. It is beside the point to endeavour to characterize the second subject as being more dominant than the first. It is necessary but also sufficient for the law to be with respect to a subject within power.

World Heritage Properties Conservation Act 1983 (Cth) are valid.

Special Laws for People of any Race Power (Constitution (s. 51(26))

Certain parts of the World Heritage Properties Conservation Act 1983 (Cth) (ss. 8, 11, 13(7), 14(5)) are claimed by the Commonwealth to be authorized by s 51(26) which empowers the Parliament to make laws with respect to the people of any race, for whom it is deemed necessary to make special laws.

A broad reading of this power is that it authorizes any law for the benefit, physical and mental, of the people of the race for whom Parliament deems it necessary to pass special laws. Whatever technical meaning "race" might be given in other contexts, in the Australian Constitution it includes the aborigines and Torres Strait Islanders and every subdivision of those peoples. To hold otherwise would be to make a mockery of the decision by the people to delete from s 51(26) the words "other than the aboriginal race in any State" (Constitution Alteration (Aboriginals) Act 1967 (Cth)) which was manifestly done so that Parliament could legislate for the maintenance, protection and advancement of the aboriginal people.

The history of the Aboriginal people of Australia since European settlement, is that they have been the subject of unprovoked aggression, conquest, pillage, rape, brutalization, attempted genocide and systematic and unsystematic destruction of their culture. According to recent studies, at the time of the first European settlement in 1803 there were approximately 4,000 Aborigines (or Parlevars) in Tasmania. They were divided into sixty or more bands of nomadic hunter-gatherers who ranged over a fifty mile radius inside about ten major tribal areas. In 1829, 250 aboriginals, believed to be possibly the last of their race, were transported to various Islands in the Furneaux Group. However, the Tasmanian aboriginal peoples did not become extinct, even though some of the tribes may be. The Report of the Aboriginal Affairs Study Group of Tasmania (No. 94 of 1978) states, at p. 16:

"any claim that 'there are no aborigines in Tasmania' is false . . . the prevalence of such claims in Tasmania is regrettable . . . There are, according to the 1976 census 1,564 males and 1,378 females who, by reason of mixed descent justifiably have the right to be proud to defend their aboriginality"; see also Ryan The Aboriginal Tasmanians (1981).

Parliament was entitled to act on the view that a law to preserve the material evidence of the history and culture of the Tasmanian aboriginals is a law with respect to the people of the Tasmanian aboriginal race, or with respect to the people of the aboriginal race of Australia. Information from archaelogical sites such as Kutikina and Deena-Reena (see for example, Flood, The Moth Hunters - Aboriginal Prehistory of the Australian Alps (1980); Mulvaney, The Prehistory of Australia (1969) may not only strengthen the common understandings that make the Aboriginal people conscious of their identity as a race but may promote tolerance of their position amongst the general community. Because of the attempted genocide of the Aboriginal Race in Tasmania, which extended to their customs, tribal structures and culture, a law aimed at the preservation, or the uncovering, of evidence about their history is a special law with respect to the people of this race. The law in question which provides for the protection and conservation of aboriginal sites that are, or are within, world heritage sites, "the protection or conservation of which is of particular significance to the people of the Aboriginal race" is a law within s 51(29). I agree with the interpretation of "particular significance" given by Mr Justice Brennan. The presumption of validity applies in favour of the proclamation made under these provisions, but the presumption not being conclusive, evidence is admissible on the issue of whether the protection or conservation is of particular significance. The World Heritage Properties Conservation Act 1983 (Cth), ss. 8, 11, 13(7) and 14(5) which are supported on s 51(29) are valid.

Acquisition of property (Constitution (s. 51(31))

Tasmania contended that the Acts were invalid because they constituted an acquisition of property on other than just terms contrary to s. 51(31) of the Constitution. The "acquisition" was said to result from the fact that the Acts so restrict the use of lands to which they apply and the rights over them that Tasmania is no longer the owner of the land. Property is a concept of very wide scope; see Dorman v Rodgers (1982), 41 ALR 683 . But the extinction or limitation of property rights does not amount to acquisition. The transfer of property from one person to another, not the Commonwealth, does not amount to an acquisition within par. 31. Unless the Commonwealth gains some property from the State or person, there is no acquisition within the paragraph. The Commonwealth of course includes its agents and this concept should be applied liberally. Here, the law gives the Commonwealth control over certain activities which might otherwise occur on the land. I am not satisfied that it has acquired any property. Section 51(31) thus does not apply; see Trade Practices Commission and Another v Tooth & Co Limited and Another (1979), 142 CLR 397 , at p. 434; Attorney-General (Cth) v Schmidt (1961), 105 CLR 361 , at pp. 372-373 and Andrews v Howell (1941), 65 CLR 255 ).

Constitution - Section 100.

This section states: "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".

In Morgan v. The Commonwealth (1947), 74 CLR 421 , at p 455, it was held that s 100 should be read as applying only to laws which are made under the trade and commerce power in the Constitution, which is extended by s 98. The two federal Acts are not laws made under that power. Morgan's Case was not challenged, and when it is applied, s 100 has no operation in relation to the two Acts.

Nationhood power.

I have held that the other parts of the World Heritage Properties Conservation Act 1983 (Cth) are valid in prohibiting the dam construction and other conduct without the consent of a federal Minister. This disposes of the real issue between the parties, and it is unnecessary to consider whether s 6(2)(e)(i) which relies on the nationhood power, is valid.

Subsidiary issues.

Some questions were raised about whether even if the Acts were valid, the proclamations were validly made. I am not satisfied that any of the proclamations have been shown to be beyond power.

It was also claimed that it was inappropriate to extend the protection of the Act to an area well beyond the site of the dam and the construction area. But assuming the law to be with respect to external affairs or corporations or the people of any race, such questions are within the discretion of Parliament and the presumption of validity applies. I am not satisfied that it has been displaced.

It follows from what I have said, that the validity of the Acts or Regulations does not depend on the determination of facts in dispute. Further, validity of the Proclamations does not depend on facts in dispute, unless any question arises whether a site is of particular significance to the people of the Aboriginal race.

Conclusion

The two Acts prohibit the construction of the proposed dam, and other work, except with the consent of a federal Minister. The State Act authorizing the dam is invalid unless the federal Minister consents. In other words with no practical difference, the State Act is valid but ineffective unless the federal Minister consents. (I would therefore answer the questions asked as follows.)

The questions should be answered in Actions No. C6 and No. C8 of 1983-

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

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

Answer: "Yes"

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

Answer: "Yes"

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

Answer: "No".

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

Answer: "No".

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

Answer: Does not arise.

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

Answer: Valid but ineffective unless the federal Minister consents.

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

Answer: Not necessary to answer.

In Action No C12 of 1983-

(1) Are any of the provisions of:

(a) ss 6 and 9

(b) ss 7 and 10

(c) ss 8 and 11

(d) s 17 of the World Heritage Properties Conservation Act valid?

Answer: Yes, apart from (e) of s 6(2), the validity of which it is not necessary to determine.

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

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

(3) If no to Question 2, are:

(a) the Regulations

(b) the Proclamations

or any of them invalid and if so which?

Answer: Does not now arise.

(4) See answer to Question 2.

(5) Do the agreed facts

(a) compel

(b) permit

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

Answer: (a) Compel

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

Answer: Valid, but ineffective unless the federal Minister consents.

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

Answer: Not necessary to answer.

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

Answer: Yes.