Constitutional Law (Cth)—Powers of the Commonwealth Parliament—External affairs—International Convention—Implementation by statute—International obligation—International concern—Subject-matter of Convention not within specific head of Commonwealth legislative power—Convention for the Protection of the World Cultural and Natural Heritage—Inconsistency between Commonwealth and State laws—State statute authorizing construction of dam in described area—Commonwealth statute and regulations prohibiting works likely to damage or destroy national heritage—Application of statute and regulations to dam construction area—The Constitution (63 &64 Vict. c. 12), ss. 51(xxix), 109—National Parks and Wildlife Conservation Act 1975 (Cth), ss. 69, 171—World Heritage Properties Conservation Act 1983 (Cth), ss. 3, 6, 9—Gordon River Hydro-Electric Power Development Act 1982 (Tas.)—World Heritage (Western Tasmania Wilderness) Regulations 1983 (Cth). Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Trading corporations formed within the Commonwealth—Prohibition of certain acts by trading corporation done for purposes of its trading activities—Acts not inherently concerned with trade—Trading corporation—State hydro-electricity authority incorporated by special statute—The Constitution (63 &64 Vict. c. 12), s. 51(xx)—World Heritage Properties Conservation Act 1983 (Cth), ss. 3, 7, 10—Hydro-Electric Commission Act 1944 (Tas.). Constitutional Law (Cth)—Powers of the Commonwealth Parliament—People of any race for whom deemed necessary to make special laws—Declaration of necessity to enact law as special law for the people of Aboriginal race—Prohibition of certain acts on site within specified area without ministerial consent—Specified area to form part of cultural or natural heritage—Sites to have special significance to people of Aboriginal race—Prohibited acts: damage destruction or removal of artefacts or relics on site—The Constitution (63 &64 Vict. c. 12), s. 51 (xxxi)—World Heritage Properties Conservation Act 1983 (Cth), ss. 3, 8, 11, 13. Constitutional Law (Cth)—Powers of the Commonwealth Parliament—World Heritage Properties Conservation Act 1983 (Cth), ss. 6(e), 9. Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Prohibition of use of land within specified areas without ministerial consent—Whether acquisition of property—Whether just terms—Provision for determination of compensation—Failure to accept compensation recommended by Commission of Inquiry a condition to right for judicial determination—The Constitution (63 &64 Vict. c. 12), s. 51 (xxxi)—World Heritage Conservation Properties Act 1983 (Cth), ss. 6-11, 17, 20—World Heritage (Western Tasmania Wilderness) Regulations. Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Trade and commerce—Use of waters of rivers for conservation or irrigation—Right of State or residents thereof—Prohibition of abridgment by Commonwealth law or regulation of trade and commerce—Commonwealth statute and regulations prohibiting certain works within specified area without ministerial consent—State statute authorizing damming of river for hydro-electricity generation—Works prohibited without Commonwealth ministerial consent—Whether Commonwealth laws are laws or regulations of trade or commerce—The Constitution (63 &64 Vict. c. 12), s. 100—National Parks and Wildlife Conservation Act 1975 (Cth), s. 69—World Heritage Properties Conservation Act 1983 (Cth), ss. 6-11—World Heritage (Western Tasmania Wilderness) Regulations 1983 (Cth). Constitutional Law—Commonwealth power—Implied prohibitions—Laws impairing legislative or executive functions of State—Laws affecting State prerogative concerning Crown…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commonwealth v Tasmania [1983] HCA 21
Case
[1983] HCA 21
Decision Date
CaseChat Overview and Summary
The Commonwealth of Australia sought a declaration that the *World Heritage Properties Conservation Act 1983* (Cth) was valid and that the *World Heritage Properties Conservation (Notification of Declarations) Act 1983* (Tas) was invalid. The dispute arose from Tasmania's intention to proceed with the construction of a dam on the Gordon River, which would have affected the Tasmanian Wilderness World Heritage Area. The High Court of Australia was tasked with determining the constitutional validity of the Commonwealth legislation and its effect on Tasmania's legislative powers.
The central legal issues before the Court were whether the Commonwealth Parliament had the constitutional power to enact legislation for the protection of World Heritage properties, and if so, whether the *World Heritage Properties Conservation Act 1983* (Cth) validly exercised that power. Specifically, the Court had to consider the scope of the external affairs power conferred by section 75(xxix) of the Australian Constitution, and whether the Commonwealth's obligations under the *Convention Concerning the Protection of the World Cultural and Natural Heritage* (the World Heritage Convention) could found such legislation. The Court also had to determine if the Tasmanian Act, which sought to prevent the Commonwealth from exercising its powers in relation to the dam project, was constitutionally valid.
The majority of the High Court held that the Commonwealth *did* possess the constitutional power to enact the *World Heritage Properties Conservation Act 1983* (Cth) pursuant to the external affairs power. This power extended to implementing into domestic law obligations arising under international treaties to which Australia was a party, provided the legislation was appropriate and adapted to giving effect to those obligations. The Court found that the World Heritage Convention was a valid international convention and that the Commonwealth legislation was a proper exercise of its power to implement Australia's obligations under that convention. Consequently, the Tasmanian Act, which purported to override the Commonwealth's legislative authority in this area, was found to be invalid as it contravened the superior Commonwealth legislation.
The High Court made declarations that the *World Heritage Properties Conservation Act 1983* (Cth) was valid and that the *World Heritage Properties Conservation (Notification of Declarations) Act 1983* (Tas) was invalid. The Court also granted an injunction restraining Tasmania from carrying out the dam construction.