Commonwealth v Tasmania (The Tasmanian Dam Case)

158 CLR 1
46 ALR 625

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(Judgment by: WILSON J)

COMMONWEALTH v TASMANIA (The Tasmanian Dam Case)

Court:

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

Subject References:
Constitutional Law (Cth)
International Law

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

BRISBANE

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Judgment by:
WILSON J

1. Introduction

The facts and issues involved in these cases are set out in the reasons for judgment of the Chief Justice. It is unnecessary for me to repeat them. In these reasons I shall refer to the opposing parties as the Commonwealth and Tasmania respectively. In order to answer the questions which are directed to the Court, four basic problems involving the interpretation of the Constitution must be addressed. Those four problems focus on the four heads of constitutional power by which the Commonwealth seeks to support the legislative and executive action it has taken with a view to stopping the construction of the dam. The four heads of power are with respect to external affairs (s. 51(xxix)), corporations (s. 51(xx)), special race laws (s. 51(xxvi)) and the implied nationhood power. Whether or not some of the more particular questions will require to be answered will depend on the result of the consideration of the adequacy of Commonwealth power in these areas to sustain the action that has been taken.

2. The External Affairs Power

(a) Koowarta

The nature and scope of this power was recently examined at length in Koowarta v. Bjelke-Peterson (1982), 56 ALJR 625. In that case, the Court by majority (Stephen, Mason, Murphy and Brennan JJ.; Gibbs C.J., Aickin and Wilson JJ. dissenting) decided that Racial Discrimination Act 1975 (Cth) were valid, being laws with respect to external affairs. Collectively, the reasons for judgment of the members of the Court provide an extensive discussion of the earlier decisions of the Court which bear on the question. It is therefore sufficient for me in considering the relevant authority of past decisions to confine my attention to a consideration of that case. The central question was whether a law to implement within Australia the International Convention on the Elimination of all Forms of Racial Discrimination fell within Commonwealth legislative power as a law with respect to external affairs. Gibbs C.J., with whom Aickin J. agreed, answered that question in the negative. Gibbs C.J. expressed the view at p 640, that "the external affairs power does not enable the Parliament to enact a law whose purpose is to give effect within Australia to an international obligation, unless the subject-matter of that obligation is an external affair". He held, at p 639, that a law which is designed to forbid racial discrimination by Australians against Australians within the territory of Australia is not an external affair simply because other nations are interested in Australia's policies and practices with regard to racial discrimination. In concurring with the Chief Justice, I observed, at p 660, that Australia's obligation to eliminate racial discrimination within Australia will only assume the character of an external affair for the purposes of s. 51(xxix) if its implementation necessarily exhibits an international character.

Stephen, Mason, Murphy and Brennan JJ. answered the central question in the affirmative. In the course of referring to the authorities, Stephen J. remarked, at p 644:

"What however remains unclear is the extent to which the federal nature of the Constitution requires that limits be imposed upon the broad power to implement international obligations seemingly conferred by par.(29), thus ensuring that exercise of that power will not destroy the federal character of the polity."

When he came to express his conclusion, his Honour, at p 645 said:

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

After noting that areas of purely domestic concern are steadily contracting and those of international concern are ever expanding, his Honour concluded:

"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'."

Mason J., at pp 648-653 and Murphy J., at pp 655-656, each took a broad view of the legislative power. In effect, their Honours held that the implementation within Australia of any treaty genuinely entered into by Australia necessarily constituted an external affair within the meaning of s. 51(xxix) subject only to express or implied prohibitions in the Constitution. With respect to the latter, Mason J. said, at p 649:

"Likewise the exercise of the power is subject to the implied general limitation affecting all the legislative powers conferred by s. 51 that the Commonwealth cannot legislate so as to discriminate against the States or inhibit or impair their continued existence or their capacity to function": Victoria v. The Commonwealth (1971), 122 CLR 353 , AT PP.372,374-375, 388-391,403,411-412,424.

Murphy J. (at p 655) saw the implied limitations on the legislative power arising from the Constitution as including those relating to the continued existence of the States and those associated with freedom of expression and other attributes of a free society to which he had referred in earlier cases.

Brennan J., at p 663, expressed the view that "when a particular subject affects or is likely to affect Australia's relations with other international persons, a law with respect to that subject is a law with respect to external affairs" notwithstanding that the subject is "an aspect of the internal legal order". While recognizing that there may be questions of degree which require evaluation of international relationships from time to time in order to ascertain whether an aspect of the internal legal order affects or is likely to affect them, his Honour considered that to subject an aspect of the internal legal order to treaty obligation stamps the subject of the obligation with the character of an external affair.

It will be seen from this brief review of the reasons for judgment of the members of the Court in Koowarta that there is some difference of emphasis in the views expressed by those Justices who formed the majority. Mason and Murphy JJ., without purporting to identify the limits of the power, were both of the opinion that the mere ratification of an international treaty or convention rendered the implementation of that treaty within Australia an "external affair". Brennan J. would appear to have held that a law comes within s. 51(xxix) when it is a law with respect to a subject matter which affects or is likely to affect Australia's relations with other international persons, notwithstanding that the subject matter is an aspect of the internal legal order of Australia. The subjection of an aspect of the internal legal order to a treaty obligation is "a powerful indication" that the subject does affect the parties to the treaty and their relations one with another and stamps the subject of the obligation with the character of an external affair.

Stephen J. sought to articulate the limits that must be imposed upon the broad power to implement international obligations in order to ensure that the exercise of the external affairs power would not destroy the federal character of the polity. It is not enough that the challenged law gives effect to treaty obligations. Something more is needed. An examination of subject matter, circumstance and parties is relevant, in order to determine the quality of the subject matter. It must possess the quality of international concern, the capacity to affect a country's relations with other nations.

It is easy to see how the members of the Court who constituted the majority, notwithstanding their different conceptions of the scope of the external affairs power, found the impugned sections of the Racial Discrimination Act to be valid. For that law, notwithstanding its regulation of conduct within Australia by Australians towards Australians in circumstances which lacked any external aspect in themselves, clearly sought to implement a treaty obligation of undeniable international importance. Mason J., at p 653 described it in these terms:

"All the materials indicate that the United Nations consider racial discrimination to be abhorrent conduct which, posing a threat to international peace and security, should be eliminated. At the level of international law the means chosen to attain this end was the formulation of the Convention. It imposes on each of the many parties to it an obligation to eliminate racial discrimination in its territory. The failure of a party to fulfil its obligations becomes a matter of international discussion, disapproval, and perhaps action by way of enforcement. Viewed in this light, the subject-matter of the Convention is international in character."

In the light of these considerations, I take the ratio decidendi of Koowarta to be that s 51(xxix) empowers the Parliament to enact a law of purely domestic operation on a topic with respect to which it would not otherwise have power provided that the law is directed to the implementation of a treaty obligation on a topic of international concern having the capacity to affect Australia's relations with other countries. It is against this background that the issues in the present case referable to the scope of the external affairs power fall to be considered. I should add that, in my opinion, Koowarta is the only decision of this Court which affords relevant authority in relation to the questions which now fall to be considered. All the earlier cases concerned matters which in themselves bore an international character.

(b) World Heritage (Western Tasmania Wilderness) Regulations (S.R. 1983, No 31)

These Regulations purport to be made under s 69 of the National Parks and Wildlife Act 1975 (Cth) (the National Parks Act). Tasmania raises at the threshold an issue of construction of the scope of the power contained in s 69. It is submitted that on its proper construction s 69 is confined in its operation to those national parks which are established by the Commonwealth pursuant to Pt.II of the National Parks Act. I reject the submission. Notwithstanding its isolation from the remainder of the Act, its extraordinary brevity and wide-ranging implications, the section must be read as an independent power accorded to the Governor-General to make regulations for and in relation to giving effect to the Convention for the Protection of the World Cultural and Natural Heritage (the Convention). With respect, I agree with the reasons advanced by the Chief Justice for reaching this conclusion and do not wish to add to them. The central question which then remains in the consolidated action (C6 and C8 of 1983) is whether s 69 exceeds the legislative power of the Commonwealth in so far as it authorizes the implementation of the Convention. The corresponding question in action C12 of 1983 is whether s 6 (except sub-s.(2)(e)) and World Heritage Properties Conservation Act 1983 (Cth)(the Act) are a valid exercise of the external affairs power. In each case the answer depends on the view one takes of the Convention and to that subject matter I now turn.

(c) The Convention

The Commonwealth argues that the implementation of the Convention within Australia falls within the external affairs power. Several alternative propositions are advanced in support of the submission, reflecting the different conditions precedent to the making of a Proclamation in relation to identified property that is in a State and which are set out in s 6(2)(a) to (d) of the Act. In each case, they are said to bring into being an external affair within s 51(xxix). They may be summarised under three heads:

(i)

the Convention imposes obligations upon and offers benefits to Australia;

(ii)

the mere entry bona fide into a treaty is sufficient;

(iii)

in any event, the subject matter of the treaty is a matter of international concern and a failure to honour the treaty is likely to affect Australia's relations with other countries.

On the other hand, Tasmania, with the support of Queensland, denies the sufficiency of any of the grounds advanced by the Commonwealth to attract the exercise of the external affairs power. It joins issue with the Commonwealth's characterisation of the Convention as relevantly imposing any obligation upon or offering any benefit to Australia or as identifying a matter of international concern capable of affecting Australia's relations with other countries. Tasmania also relies upon Art.34 of the Convention (the federal clause) to confirm the absence of any relevant obligation resting upon the Commonwealth.

The material parts of the Convention are set out in the reasons for judgment of the Chief Justice. Broadly speaking, the Convention evinces two main objectives, both of which affirm the importance to mankind of preserving those cultural and natural features which are of outstanding universal value. One objective is to encourage each party to the Convention to identify and preserve those features within its own country which form part of the world heritage and take appropriate action to strengthen the appreciation of and respect for that heritage by its people (Preamble, Arts. 3,4,5,11 and 27). The other is to establish a system of international co-operation and assistance designed to support parties to the Convention in their efforts to identify and conserve that heritage (Preamble, Arts.6,7,13,15,16, and 18- 26). In relation to this latter objective, it may be said that the Convention imposes some obligations upon the parties to it. They are clearly identified by the use of the word "undertake", for example, in Arts.6(2), 6(3) and 16. Again in relation to the scheme of international assistance a party is offered a benefit in the form of a right to request international assistance in relation to property forming part of the cultural or natural heritage, being property which the World Heritage Committee has decided, or may decide, to list pursuant to Art.11 (Arts. 13, 19, 20). But, in my opinion, these provisions of the Convention, while in themselves constituting external affairs which the Commonwealth may be competent to pursue, do not bear any relevant relation to the competence of the Commonwealth to enact the legislation which is under challenge in this case. That legislation is in no way directed to those provisions.

It is necessary now to decide whether the earlier articles in the Convention oblige Australia to take action to protect those items of the world heritage situated within Australia. I make this inquiry on the assumption that the existence of an international obligation may bring into being an external affair with consequent power in the Parliament under s 51(xxix) to pass a law in fulfilment of that obligation. Article 4 provides that each party recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage situated on its territory belongs primarily to that party. Each party "will do all it can to this end, to the utmost of its own resources" and, where appropriate, with any international assistance and cooperation it may be able to obtain. The first sentence of this Article involves the recognition of the sovereign responsibility of each party for the property within its territory, a principle which is asserted again in the opening phrases of Art.6(1). The Convention goes to some pains to emphasise its respect for that principle. The second sentence may amount to a promise but it is not expressed in a form which imports a binding commitment. At most it is a promise by each party to do what it can to advance the objectives of the Convention. There is no resort to the language of obligation. It is to be contrasted with the later articles to which I have referred where the word "undertake" is used.

Article 5 provides that each party, in relation to the cultural and natural heritage situated on its territory, "shall endeavour, in so far as possible, and as appropriate for each country" to do various things to ensure that effective and active measures are taken for the protection, conservation and presentation of the heritage. These things are set out in five paragraphs. Briefly, the substance of these paragraphs includes matters such as -

the adoption of a general policy which aims to give the cultural and natural heritage a function in the life of the community;

the integration of the protection of that heritage into comprehensive planning programmes;

the setting up of services, where they do not already exist, for the protection, conservation and presentation of the heritage with appropriate staff, possessing the means to discharge their functions;

the development of scientific and technical studies and research directed to counteracting the dangers that threaten the heritage;

the taking of appropriate legal, scientific, technical administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of the heritage;and

the fostering of the establishment or development of national or regional training centres and the encouragement of scientific research.

As with Art.4, this Article is not expressed to impose a binding commitment on parties to discharge each of these responsibilities. Indeed, the range and detail of the Article strongly suggest that its purpose and function are to set goals in order to encourage and guide the parties, first, in the task of kindling and developing the appreciation of their peoples for the cultural and natural heritage of universal significance that lies close at hand and, secondly, in the taking of effective and active measures toward those ends. I do not understand the Commonwealth to acknowledge an international obligation that is coextensive with all the aspirations contained in this Article and it would, in my opinion, be quite unreasonable to expect it to do so. Nevertheless, the Commonwealth argues that a binding obligation, allowing for some latitude in performance, is to be spelt out of the prefatory words "each State Party . . . shall endeavour, in so far as possible, and as appropriate for each country". These words are of critical importance to the argument. No doubt the word "endeavour" reflects a mutual willingness to strive toward the goals that are set out in the Article but, in my opinion, it falls far short of creating an obligation. The clarity and precision of language in which a particular objective is expressed will often be material in determining whether there is a binding commitment to pursue it. Here the objectives are of such general and wide-ranging content that they are properly described as aspirations. In that context, the word "endeavour" is well chosen to reflect the notion of one who is an aspirant, one who tries, who strives, who does one's utmost (c.f. the Oxford English Dictionary). It is argued that the words "in so far as possible" are words of absolute obligation, an obligation to do everything save that which is impossible. I find such a rendering of the phrase unacceptable. Given the political context of the Convention, the word "possible" carries the same meaning as that conveyed by Bismarck's aphorism that "politics is the art of the possible". An alternative rendering would be "so far as practicable", meaning that which is suitable to the circumstances of the case. It clearly imports a necessity for judgment between competing interests or with a view to their reconciliation. Whatever its precise meaning, its presence militates against any interpretation that would yield a legal obligation. The same may be said of the phrase "and as appropriate for each country". The Commonwealth argues that the phrase does no more than allow some latitude in the method of compliance having regard to the different approaches to treaty implementation in some legal systems. However, the phrase is more likely to reflect an awareness of the problems confronting the parties when they set out to reconcile the wholly admirable goals set by the Convention with the pressing demands of their peoples for that enhanced quality of life which depends in part on social and economic development.

In support of its submission, Tasmania argues that the Convention can be understood only in the context of this balancing process between development and the environment. The Convention recognises that each party is fully sovereign with respect to the exploitation of the resources within its territory and that the basic needs of its people for food and shelter and the other amenities of life will often weigh heavily in favour of the development of those resources even at the expense of environmental features of great value. It is against the background of that recognition that the Convention nevertheless declares boldly the importance that the cultural and natural heritage holds for mankind. Understandably its operative provisions are expressed with caution. The language, deliberately chosen, is designed to express a common aspiration, an international accord, in order to encourage and stimulate appropriate action but stopping short of words of obligation. The words stand in stark contrast with the emphatic words of obligation contained in the Convention on the Elimination of all Forms of Racial Discrimination which was under consideration in Koowarta (1982) 153 CLR 168 . If there were any ambiguity on the question, reference to the travaux preparatoires serves amply to confirm the view which I have taken. The propriety of reference to the travaux preparatoires in these circumstances has been affirmed recently by Lord Wilberforce in Fothergill v. Monarch Airlines, [1981] A.C. 251 , at p 278. The discussions, in the course of which the Convention was prepared, trace clearly the determination of the participating States to exclude any notion of accountability to the international community for the decisions they take with respect to the preservation of items of the world heritage within their own territories. For this reason the word "undertake" was removed from the draft Arts. 4 and 5 and the present wording substituted, yielding the result that while the parties would do their best to pursue the objectives laid down in the Convention they were not prepared to be held to account or subjected to any coercion at the hands of the international community.

The learned Solicitor-General of the Commonwealth places some reliance on the fact that on the same day as the General Conference of the United Nations Educational, Scientific and Cultural Organization adopted the Convention it adopted a recommendation concerning the protection, at national level, of the cultural and natural heritage of special value. He argues that the inclusion in the Convention of some articles touching the protection of the world heritage at the national level should therefore be taken as an indication of an intention to introduce obligations in that area; the Conference was not prepared for matters of outstanding universal value to be dealt with solely as a matter of recommendation. The point is not without substance but, in my opinion, is not strong enough to bear the weight of argument it is asked to carry. When the recommendation and the Convention are read together the conclusion which emerges is that the latter is primarily concerned with international protection, that is to say, the establishment of a system of international cooperation and assistance designed to support parties to the Convention in their efforts to conserve and identify the world heritage (Art.7). The earlier articles dealing with the national protection of that heritage are designed to stress the important role which parties could play in that regard. But as I have said, they stop short of imposing a relevant obligation. It may be noticed in passing that cl. 17 of the recommendation appears to recognise explicitly the necessity of balance which Tasmania sought to extract from the Convention itself. It provides:

"17. Considering the fact that the problems involved in the protection, conservation and presentation of the cultural and natural heritage are difficult to deal with, calling for special knowledge and sometimes entailing hard choices, and that there are not enough specialized staff available in this field, responsibilities in all matters concerning the devising and execution of protective measures in general should be divided among central or federal and regional or local authorities on the basis of a judicious balance adapted to the situation that exists in each State" (My emphasis).

It seems to me that this recognition is implicit also in the Convention.

The right and responsibility of each sovereign State to pursue the defence and improvement of the human environment together with the goal of economic and social development was affirmed by the United Nations Conference on the Human Environment adopted at Stockholm on 16th June, 1972. The declaration made by that Conference includes a number of statements directed to that end. I do not rely upon the declaration as a supplementary means of interpreting the Convention but it provides a further recognition of the compelling considerations in this field. Principle 21 of the declaration reads:

"Principle 21. 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."

One finds a similar affirmation (a) of the right and responsibility of each State to promote the economic, social and cultural development of its people and to that end, inter alia, to mobilize and use its resources, and (b) of the responsibility of all States to protect, preserve and enhance the environment for the benefit of present and future generations in the Charter of Economic Rights and Duties of States adopted in the General Assembly of the United Nations on 12th December, 1974(Arts. 7,30).

Finally, on the question whether Arts. 4 and 5 give rise to any obligation, it will be observed that the Convention makes no provision for handling any complaints or resolving any disputes. This is yet another consideration suggesting a negative answer to the question.

As I have said, the Commonwealth also argues that, even if the Convention does not impose any relevant obligation or confer any relevant benefit on the parties to it, the mere fact of Australia's entry into it brings into being an external affair which arms the Commonwealth with legislative authority to implement it within Australia. Associated with this argument is the further submission that quite apart from the Convention the protection of the world's cultural and natural heritage is sufficiently a matter of international concern carrying with it a capacity to affect Australia's relations with other nations to attract to the Commonwealth a power pursuant to s 51(xxix) to legislate generally on the topic. These far-reaching submissions derive no support from the earlier decisions of this Court. I am unable to accept them. In my opinion, such an unbridled interpretation of the scope of the legislative power conferred on the Commonwealth by s 51(xxix) is quite inconsistent with a proper regard for its place in the Constitution when viewed as a whole. I shall have occasion later in these reasons to discuss more generally these submissions on the scope of the legislative power with respect to external affairs. It is convenient to deal first with some other matters which may have some bearing on the argument.

When it is said that the subject matter of the Convention is a matter of international concern it may be relevant in judging the strength of that concern to observe that to date seventy-four nations have become parties to it; that is to say, a little less than half the total membership of the United Nations. Furthermore, there are some notable absentees from the list of parties, including the United Kingdom, the Soviet Union, China, Belgium, Holland, Norway, Sweden, Japan, New Zealand, Singapore, Malaysia, Thailand and the Phillipines. The significance of this observation depends upon the understanding that is to be given to the term "international concern" as used by Stephen J. in Koowarta and the capacity of a matter to affect Australia's relations with other nations (cf. both Stephen and Brennan JJ. in Koowarta). Be that as it may, the extent and intensity of international concern that is reflected in the present Convention is in no way comparable to that which was evidenced by the Convention on the Elimination of Racial Discrimination which was under consideration in Koowarta.

The World Heritage Convention is distinguished from many other conventions of recent times by the fact that it contains a federal clause. Article 34 deals with two situations relating to parties which have a federal constitutional system. In the case of those parties where the implementation of the Convention comes under "the legal jurisdiction of the federal or central legislative power", the obligations of the federal government shall be the same as for those parties which are not federal States. In cases where the implementation comes under the legal jurisdiction of individual constituent units 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 units of the relevant provisions of the Convention, with its recommendation for adoption. The construction of the Article presents difficulties. It may be accorded varying significance depending on its construction. The Commonwealth says that it contributes nothing to a solution of the present case. Either there is an external affair which confers legislative power on the Commonwealth to implement the Convention or there is not. The Article cannot change that situation. That no doubt is true. Nevertheless it must be acknowledged that the clause forms part of the Convention which is to be construed in its entirety in determining the existence of a relevant external affair. In this regard, two observations may be made. Firstly, its presence tends to confirm the clear indications which are to be drawn from the wording of the substantive provisions that the Convention seeks to achieve its purposes, so far as national protection of the heritage is concerned, by a conciliatory and informal engagement of international relationships which would fall short of conferring any power on the Commonwealth. The tone is one of help and encouragement, not of coercion. There is, on this view, no reason to discern an intention to override existing constitutional arrangements within a party to the Convention and the Article is included to negate any such intention.

Secondly, the "legal jurisdiction" of the Commonwealth is to be determined having regard to the provisions of the Convention itself and the respect for national sovereignty that it exhibits. The Commonwealth is not equipped with legislative or executive power to make the political decisions which the Convention demands. As I have shown, Arts. 4 and 5 recognize that the sovereignty of parties over their territory attracts to them and denies to the international community the responsibility for determining what is practicable in the pursuit of the objectives laid down in the Convention. This may require in some circumstances the strong claims of the world heritage to protection to be weighed against the demands of development in order to maintain or improve the quality of life of the people. Even when the provisions of the Convention are taken into account, the fact remains that the Commonwealth is not empowered to make the judgment which those circumstances may require. Its implementation at the national level is therefore not within the "legal jurisdiction" of the Commonwealth. This line of reasoning leads again to the conclusion that it is not for the Commonwealth but for Tasmania, after receiving the recommendation of the Commonwealth, to make the decisions that are appropriate in the present case to give effect to the Convention.

It will be apparent from what I have written earlier that I have come to a conclusion in favour of Tasmania on the external affairs issue, based on the construction of the Convention independently of the federal clause. Nevertheless, I find its presence in the Convention to be wholly consistent with and generally supportive of that conclusion.

Before moving on, I should mention a submission advanced by counsel for Queensland based on Art. 6 of the Convention. I have not hitherto based any conclusions upon this Article because its subject matter is concerned with the duty of the international community to cooperate in the protection of the heritage. That cooperation is achieved by the parties undertaking to give their help in that regard to any party asking for it (Art.6(2)). Article 6(3) is perhaps no more than declaratory of the rule of customary international law that a country must not take any deliberate measures which might damage the world heritage situated on the property of another State. However, Queensland draws attention to the phrases which appear at the commencement of Art.6(1), namely, "whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation . . .", and argues that consistently with the latter of these phrases the Convention cannot be construed so as to authorize or require a party to act in a manner which prejudices property rights. The submission was made in support of an argument that the legislation, assuming that entry into the Convention brought into being an external affair, was nevertheless invalid because it failed faithfully to implement its provisions. Having regard to the conclusion that I have reached on the substantive issue, it is unnecessary for me to determine this aspect of the matter.

(d) The Scope of the Power

In R. v. Burgess;Ex parte Henry (1936), 55 CLR 608 , AT P.669, Dixon J. remarked that the limit 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. I believe there is much wisdom in that observation and would prefer to avoid abstract discussion. However, there are already so many obiter dicta in the cases and the learned Solicitor-General for the Commonwealth has argued in this case for such a broad view of the power that I feel constrained to make some brief general observations on the proper interpretation of s 51(xxix). I acknowledge, as I must, that my earlier view of that paragraph was not sustained in Koowarta and that I should therefore reconsider the matter in order to accommodate that decision. I do not find this an easy task. I remain convinced, with all respect to those who think differently, that an expansive reading of s 51(xxix) so as to bring the implementation of any treaty within Commonwealth legislative power poses a serious threat to the basic federal polity of the Constitution. Such an interpretation, if adopted, would result in the Commonwealth Parliament acquiring power over practically the whole range of domestic concerns within Australia. This is not speculation. Many treaties and conventions of the United Nations Economic Social and Cultural Organization, the International Labour Organization and the United Nations itself are already in existence. It is not a satisfactory answer to observe that State laws will be ousted only if the Commonwealth chooses to legislate. Ultimately absolute political power must come to reside with the paramount authority. The natural incentive of governments in the pursuit of their policies to resort to the legislative powers available to them would afford little assurance to the States of a stable framework in which to pursue the residual responsibilities and opportunities left to them. In Koowarta, every member of the Court acknowledged that the content of the legislative powers conferred on the Commonwealth is to be determined having regard to the implications of federalism. It seems to me that if a whole range of legislative and executive authority which formerly resided in the States is capable of being subsumed under paramount Commonwealth laws then the very constitutional structure of the States is undermined. Of what significance is the continued formal existence of the States if a great many of their traditional functions are liable to become the responsibility of the Commonwealth? This is not an application of the reserved powers doctrine as it operated before the Engineers' Case (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 CLR 129 ). It is a question of the survival of the indissoluble federal Commonwealth as the Constitution conceived it to be; cf. Latham C.J. in Bank of New South Wales v. The Commonwealth (1948), 76 CLR 1 , at pp. 184-185 (the Bank Case). In the context of the decision in Koowarta, I welcome the attempt by Stephen J. to discern the limits which must be imposed on a broad interpretation of the power in order to preserve Australia's federal character. The concept, as enunciated by him, of international concern as a necessary consideration additional to that of obligation may be somewhat elusive but it is clear that, in his Honour's contemplation, it must mean something more than the mere existence of that interest or concern among nations which finds expression in a Convention. If it meant no more than that, then his Honour's reference would be meaningless. I take it to be a matter of degree requiring an evaluation in each case of subject matter, circumstance and parties in order to determine the importance of the particular obligation in terms of international relationships. Only those obligations resting on the Commonwealth of such a quality that a failure to implement threatens serious disruption to its international relationships will attract the external affairs power in cases where the subject matter would otherwise be of purely domestic concern within the province of the States. I do not regard this as a satisfactory interpretation of the power, but consistently with existing authority it would appear to be the best that can be done.

(e) Summary

With respect to the question of the validity of the World Heritage (Western Tasmania Wilderness) Regulations (action C6 and C8 of 1983), it is my opinion that s. 69 of the National Parks and Wildlife Act cannot validly authorize the making of those regulations.

Although question 1 in action C12 of 1983 asks the Court, inter alia, whether any of the provisions of ss. 6 and 9 of the Act are valid, it seems to me that it may be more helpful for the Court to consider, in relation to the external affairs power, whether the matters set out in pars. (a) to (d) of s. 6(2) or any of them validly authorize the Governor-General to make the Proclamations which he has made in purported pursuance of s. 6(3). It is unnecessary, and, in the case of some paragraphs, inappropriate to express a final opinion on the sufficiency of the matters contained in those paragraphs in all or any circumstances to attract the power of the Parliament with respect to external affairs.

In my opinion, the Parliament could not validly authorize the making of the Proclamations in question.

As to par. (a), the submission of the identified property to the World Heritage Committee under Art. 11 of the Convention cannot of itself constitute an external affair such as would support the application of s. 9 to the property.

As to par. (b), as I have shown, the Convention does not give rise to any relevant obligation. The paragraph speaks of an obligation arising by reason of the Convention "or otherwise". Whether or not such an obligation which may arise in the future otherwise than under the Convention will call for consideration remains to be seen. In this case, it is only the Convention that is advanced by the Commonwealth as the source of an obligation. In any event, I am of the opinion that an international obligation, howsoever arising, is not of itself sufficient to support a proclamation which attracts the operation of s. 9 to identified property within a State.

As to par. (c), the fact that the protection or conservation of the property by Australia is necessary or desirable for the purpose of giving effect to a treaty (including the Convention) or for the purpose of obtaining for Australia any advantage or benefit under a treaty (including the Convention) is insufficient to support a proclamation under s. 6(3). The mere fact of entry bona fide into a treaty in relation to a matter otherwise beyond Commonwealth power cannot, in my opinion, empower the Parliament to pass laws directed to its implementation or generally upon its subject matter. With regard to benefit, I do not perceive any relevant benefit accruing to Australia under the Convention which would support the proclamations in the present case and no other relevant benefit is relied upon.

As to par. (d), the asserted fact on which legislative power is said to depend is that the protection or conservation of the property by Australia is a matter of international concern (whether or not it is also a matter of domestic concern), whether by reason that a failure by Australia to take proper measures for the protection or conservation of the property would, or would be likely to, prejudice Australia's relations with other countries, or for any other reason; cf. par. (d). There is no suggestion in the present case that, independently of the Convention, any matter of international concern touching the protection or conservation of the world heritage has arisen. Given the absence of obligation on a party to the Convention in respect of the protection of property within its own territory, the inclusion of the federal clause and the general spirit of the Convention, in my opinion, it cannot be said that the facts asserted are capable of supporting a legislative power with respect to external affairs. In any event, as Stephen J. asserted in Koowarta, the element of international concern is cumulative upon, and not alternative to, the presence of a relevant international obligation. It follows that the Proclamations cannot be supported by reference to this paragraph. Whether in the future circumstances may materially change the intensity of international concern in relation to the world heritage remains to be seen.

3. The Corporations Power

The question here is whether ss. 7 and 10 of the Act are laws with respect to the foreign or trading corporations mentioned in s. 51(xx). Section 7 empowers the Governor-General, if satisfied that any identified property is being or is likely to be damaged or destroyed, to declare that property to be property to which s. 10 applies. Identified property, for the purposes of the Act, includes the three national parks in south-western Tasmania, these areas having been submitted for listing on the World Heritage List pursuant to Art. 11 of the Convention and having also been declared by the regulations to form part of the heritage pursuant to s. 3(2)(a)(ii). The Governor-General has declared part of that area to be property to which s. 10 applies, with the consequence that the section purports to make it unlawful except with the consent in writing of the Minister for either a foreign corporation or a trading corporation to do any one of a range of specified acts on the property (s 10(2)(d) to (m)) including any act which may be prescribed, or to do any other act that damages or destroys any property to which the section applies (s. 10(3)). Acts which have been prescribed pursuant to s. 10(2)(m) include carrying out works in the course of constructing a dam that, when constructed, will be capable of causing the inundation of a specified portion of the property. Section 10(4) makes it unlawful for the corporation, except with the consent in writing of the Minister, to do any of the acts referred to in the preceding subsections "for the purposes of its trading activities".

The question is whether the law is "in its real substance" a law with respect to the specified corporations: Fairfax v. Federal Commissioner of Taxation (1965), 114 CLR 1 , at p. 7. It is possible for a law to bear a dual character. It will be of no consequence that a law may properly be characterized as a law with respect to a subject outside Commonwealth power if it is nevertheless at the same time properly characterized as a law with respect to a subject within Commonwealth power. The agreed facts make it plain that the provisions to which I have referred are directed to making it unlawful for the Hydro-Electric Commission (the Commission), a body corporate created by the Hydro-Electric Commission Act 1944 (Tas.), to proceed with the construction of the dam. However, the motives which may have led the Parliament to enact the law are irrelevant to the task of characterization. As Mason J. observed in Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976), 136 CLR 1 at p. 20:

"It is now far too late in the day to say that a law should be characterized by reference to the motives which inspire it or the consequences which flow from it."

In speaking of consequences, I do not think his Honour intended to exclude from consideration the practical operation of the law; see also the Bank Case, at p. 186. Although the question whether the Commission is a trading corporation within the meaning of s. 51(xx) is in issue, that question may be put to one side. The striking feature of this law is that the activities to which it is directed bear such a special character. This is no general law with respect to trading corporations. It is expressed to operate only in narrowly confined areas of the Commonwealth, namely, proclaimed portions of areas identified not by any characteristic of trade but by their significance to the cultural or natural heritage as defined in the Act. The portions are proclaimed, for the purposes of s. 10, upon the Governor-General's apprehension of damage to or destruction of those areas. The prohibited acts are directly related to damage or destruction to the land and not to any effect upon trade. Indeed, the acts are identical to those which are proscribed by s. 9 of the Act which applies to any person. Section 10(4) introduces the phrase "for the purposes of its trading activities" as an additional element in the proscription but I do not think that this addition changes the character of the law. Let it be assumed that the Commission is a trading corporation in relation to that part of its functions which involves the sale of electricity. The construction of the dam is at best only indirectly and remotely related to that part of its functions. It is a major public work directed to the provision of sources of electrical energy to meet the needs of the State. In reality the law is not concerned with regulating or controlling the Commission's trade in electricity. It is concerned with the protection of identified property from damage and destruction whether by a trading or foreign corporation or by anyone else. It is well to recall the cautionary note sounded by Barwick C.J. in Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 CLR 468 , at pp. 489-490, after expressing the view that s. 5(1) and s. 8(1) of the Australian Industries Preservation Act were valid laws with respect to trading corporations because they were clearly laws regulating and controlling their trading activities. His Honour said:

". . . it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, from the validity of those sections, that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations 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"; cf., also, the Bank Case, at p. 187.

To be a law with respect to trading corporations, the substance of the law must bear a sufficient relation to those characteristics of such corporations which distinguish them from corporations which cannot be so described: Huddart, Parker & Co Proprietary Ltd. v. Moorehead (1909), 8 CLR 330 , per Isaacs J. at p. 397; Actors and Announcers Equity Association of Australia v. Fontana Films Pty Ltd (1982), 56 ALJR 366, per Gibbs CJ at p 370. In other words, the law must be about trading corporations. I do not find it necessary to consider whether the nature of the power precludes its exercise in a manner which confines its operation to a strictly localized situation and perhaps to one corporation. As at present advised, it seems to me that there is a necessary generality attending a law with respect to any of the corporations mentioned in s. 51(xx).

In the result, I am unable to ascribe to ss. 7 and 10 the character necessary to their validity. In my opinion, the law is in truth what the long title of the Act describes it as being, namely, an Act relating to the protection and conservation of certain property, and for related purposes. Sections 7 and 10 are not laws with respect to trading corporations.

4. The Race Power

The question here is whether ss. 8 and 11 of the Act are valid. The answer to that question depends on whether they can properly be characterized as special laws for the people of the Aboriginal race. I readily accept the Commonwealth's contention that it is for the Parliament alone to deem it necessary to make the law. But the question whether the law answers the description of a special law for the people of the particular race must remain a question to be answered by the Court.

The difficulty in the way of an affirmative answer to that question in the present case is comparable to that which confronted the Commonwealth's submission based on the corporations power. The sections which are said to bear a special character for the Aboriginal people are embedded in a statute which exhibits in all its parts the indelible imprint of a general law. This comes about because an Aboriginal site must be identified property within the meaning of the Act. That is to say, it must form part of the cultural heritage of the whole of mankind. The sites that have been proclaimed pursuant to s. 8 have been entered on the World Heritage List and therefore must be taken to be of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view: Convention, Art. 1. The preamble to the Convention emphasizes "the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong". A law which in substance does no more than protect sites which are of outstanding value to the whole of mankind, even though it may be declared to be a law for the people of the Aboriginal race, cannot be described as a special law for such people. This is so, notwithstanding that the sites may be of particular significance or interest to them, because the benefit of the law accrues to all mankind. Thus, the law serves the interest of the Aboriginal people in the sites in question and any artifacts or relics on them by protecting them against damage or destruction. But in so doing it is serving, at the same time and by the same law, the interest of a much wider constituency, the whole of mankind. That latter interest is of no mean kind, because in effect the Act declares the sites to be of outstanding universal value. In any event, as I observed in Koowarta, at p. 657, a law within s. 51(xxvi) must of its very nature be discriminatory. It must be a special law for the reason that it addresses a problem that is peculiar to the people of a particular race. Views may differ on the proper interpretation of the words "for the people" in the phrase "for the people of any race". It was submitted by Tasmania that a special law for the people of a particular race is a law which operates only upon the people of that race or which operates upon people generally but only in respect of their dealings with the people of that race. It is unnecessary for the purposes of this case to determine that question and I express no opinion upon it.

5. Power Inherent in Nationhood

The Commonwealth argues that, independently of any express legislative power conferred by the Constitution, the existence of the circumstances described in the Act brings into being an inherent power to legislate. The circumstances are the following: a heritage distinctive of the Australian nation, an absence or inadequacy of any other available means for its protection, and a conclusion that it is peculiarly appropriate that the Parliament and Government of the Commonwealth should protect it. I am unable to accept the argument. I know of no occasion when a coercive law declaring certain conduct to be unlawful and imposing penalties has been enacted by the Parliament otherwise than pursuant to a given head of power. Such an approach to federal legislative power would in my opinion be wholly subversive of the Constitution and cannot be permitted. I accept, so far as coercive laws are concerned, the emphatic statement of Latham C.J. in the Bank Case, at p. 184:

"The Constitution assigns only specific legislative powers to the Commonwealth Parliament. It is a Federal Constitution, not a unitary Constitution. This has been emphasised again and again in the judgments of this Court, and in no case more clearly than in the Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (at p. 150) where reference is made to the conclusion 'as to which this court has never faltered, that the Commonwealth is a government of enumerated or selected legislative powers': see also at p. 154: 'It is undoubted that those who maintain the authority of the Commonwealth Parliament to pass a certain law should be able to point to some enumerated power containing the requisite authority'."

It is unnecessary, for the purposes of this case, to consider the existence and scope of a non-coercive legislative power inherent in the fact of Australia's nationhood; cf. Victoria v. The Commonwealth and Hayden (1975), 134 CLR 338 .

6. Conclusions

It cannot be emphasized too strongly that, although the subject matter of the actions before the Court provides the occasion for much political controversy, the role of the Court is wholly divorced from that controversy. The questions which have been referred to it are strictly legal questions involving important issues of constitutional interpretation. The Court is neither equipped, empowered, nor permitted to enter upon the merits of that controversy. In other words, it is not for the Court to decide whether or not Tasmania should proceed with the construction of the dam.

For the reasons which I have attempted to expound, I would resolve the four basic issues to which I alluded at the outset against the Commonwealth. Tasmania advanced several other arguments in support of its case that the Commonwealth legislation was invalid but in the light of the conclusions to which I have come on the matters which I have discussed it is unnecessary to consider them. I would answer the questions as follows:

Actions No. C6 of 1983 and No. C8 of 1983

Question 1. (a) Unnecessary to answer.

Question 1. (b) "No".

Question 2. "No".

Question 3. "Yes. The Regulations are wholly invalid".

Question 4. Does not arise.

Question 5. Does not arise.

Question 6. Does not arise.

Action No. C12 of 1983

Question 1. (a) "In present circumstances, no".

Question 1. (b) "No".

Question 1. (c) "No".

Question 1. (d) Unnecessary to answer.

Question 2. "No".

Question 3. "Yes. The whole".

Question 4. Does not arise.

Question 5. Unnecessary to answer.

Question 6. Does not arise.

Question 7. Does not arise.

Question 8. Unnecessary to answer.