Commonwealth v Tasmania - [1983] HCA 21

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

THE COMMONWEALTH OF AUSTRALIA v. TASMANIA. THE TASMANIAN DAM CASE

(1983) 158 CLR 1

1 July 1983

Constitutional Law (Cth)—International Law

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 land. International Law—International Convention—Interpretation—Obligations of States Parties—Ratification and adoption—Federal state clause—Convention for the Protection of the World Cultural and Natural Heritage—Vienna Convention on the Law of Treaties, Arts. 31, 32.

Decisions

July 1.
THE COURT published the following statement and the following written judgements were delivered:

STATEMENT

It seems convenient to state shortly the effect of the answers given by the Court to the questions asked in these actions. The questions concern the validity of certain Commonwealth Acts, regulations and proclamations which have been brought into being for the immediate purpose of preventing the construction of the Gordon below Franklin Dam. They are strictly legal questions. The Court is in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed. The assessment of the possible advantages and disadvantages of constructing the dam, and the balancing of the one against the other, are not matters for the Court, and the Court's judgment does not reflect any view of the merits of the dispute.

The effect of the decision of the Court, reached in relation to each question by a majority, is as follows"

1. The World Heritage (Western Tasmania Wilderness) Regulations made under s. 69 of the National Parks and Wildlife Conservation Act 1975 are wholly invalid.

2. Section 9(1)(h) of the World Heritage Properties Conservation Act 1983 is valid. In consequence, except with the consent in writing of the Commonwealth Minister, it is unlawful for any person to do the following acts in relation to particular specified property adjacent to the Franklin River, including Kutikina Cave and Deena Reena Cave: (a) carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that peroperty or any part of it; (b) carrying out works preparatory to the construction of such a dam; (c) carrying out works associated with the construction or continued construction of such a dam.

3. Section 10(4) of the World Heritage Properties Conservation Act 1983 is valid. In consequence, except with the written consent of the Commonwealth Minister, it is unlawful for a trading corporation for the purpose of its trading activities to do any of the acts specified in s. 10(2)(d)-(m). The Hydro-Electric Commission of Tasmania is held to be a trading corporation and the acts specified in s. 10(2) would, if done by he Commission for the purpose of its trading activities.

4. Certain other operative provisions of the Act are invalid.

This statement is published for convenience only and is not intended to provide a complete or authoritative exposition of the effect of the decision, which must be gathered from the judgments published by the Court.
GIBBS C.J.

Introduction (at p456)

1. The question of immediate practical importance which falls for decision in these three cases is whether it is lawful for the Hydro-Electric Commission of Tasmania (the Commission) to construct a dam on the Gordon River, downstream of its junction with the Franklin River, in south-western Tasmania. The construction of the dam, and of associated works, including a power station, is authorized by the Gordon River Hydro-Electric Power Development Act 1982 (Tas.), a law of Tasmania which came into force on 12th July, 1982. The construction work commenced on 14th July, 1982. The dam proposed to be constructed will dam the waters of the Gordon River to a maximum depth, at the toe of the dam, of approximately 84 metres, will raise the levels of the Franklin River and other tributaries and will have a storage capacity of about 2,700 million cubic metres. The power station will add about 180 megawatts on average to the capacity of the Tasmanian electricity generating system and will have an installed generator capacity of about 300 megawatts. The Government of Tasmania wishes to proceed with the Gordon below Franklin Scheme (as it is called) since it considers that the ability to generate electricity at low cost by this means is necessary to enable the State to achieve economic growth and to increase the opportunities for employment. However, the Government of the Commonwealth wishes to stop the construction of the dam, which it considers will inundate significant Aboriginal archaeological sites, and will cause damage to a wilderness area which is of great natural significance, and which satisfies the criteria for listing on the World Heritage List maintained under the Convention for the Protection of the World Cultural and Natural Heritage (the Convention). In conformity with the policy of the Government to stop the construction of the dam, the Governor-General, acting in intended exercise of the power conferred by s. 69 of the National Parks and Wildlife Conservation Act 1975 (Cth), has made the World Heritage (Western Tasmania Wilderness) Regulations (S.R. Nos. 31 and 66 of 1983) and the Parliament has enacted the World Heritage Properties Conservation Act 1983 (Cth) (the Act). Either the Regulations or the Act, if valid, will render it unlawful to construct the dam, except with the consent of a Commonwealth Minister. The important legal question that now falls for decision is whether the Regulations and the Act are valid. (at p457)

2. No lawyer will need to be told that in these proceedings the Court is not called upon to decide whether the Gordon below Franklin Scheme ought to proceed. It is not for the Court to weigh the economic needs of Tasmania against the possible damage that will be caused to the archaeological sites and the wilderness area if the construction of the dam proceeds. The wisdom and expediency of the two competing courses are matters of policy for the Governments to consider, and not for the Court. We are concerned with a strictly legal question - whether the Commonwealth regulations and the Commonwealth statute are within constitutional power.

History (at p457)

3. In the west and south-west of Tasmania are three large national parks, now proclaimed as such under the National Parks and Wildlife Act (1970) (Tas.), although originally constituted under earlier legislation. They are the Cradle Mountain-Lake St. Clair National Park, the Franklin Lower Gordon Wild Rivers National Park and the Southwest National Park. The area occupied by the three parks is now known as the Western Tasmania Wilderness National Parks (the Parks) and until 17th August, 1982, was of a total area of 769,355 hectares, almost the whole of which consisted of Crown land which had not previously been alienated. The Parks are almost wholly surrounded by an area known as the Southwest Conservation Area, proclaimed as such under the National Parks and Wildlife Act 1970 (Tas.) and consisting of 665,645 hectares. On 22nd September, 1981, the then Premier of Tasmania (Mr Lowe) wrote to the then Prime Minister (Mr Fraser) requesting that a nomination of the Parks for listing in the World Heritage List should be forwarded to the World Heritage Committee. A nomination was submitted by the Commonwealth to the World Heritage Committee on 13th November, 1981. The International Union for Conservation of Nature and Natural Resources (IUCN), a body recognized by the Convention and entitled to send a representative to attend meetings of the World Heritage Committee in an advisory capacity (see Art. 8.3 of the Convention), reported to the World Heritage Committee on 15th April, 1982, recommending that the Parks be listed. The report reveals that the question whether the Gordon below Franklin dam should be built was already a controversial issue in Australia. On 28th June, 1982, the Gordon River Hydro-Electric Power Development Act 1982 was assented to and on the same day the Premier of Tasmania (by that time Mr Gray) requested the Prime Minister to withdraw the nomination of the Parks for inclusion in the World Heritage List. The Prime Minister declined to do so, and Mr Gray strongly objected to this rejection of his request. (at p457)

4. On 17th August, 1982, by proclamation made under the National Parks and Wildlife Act 1970 (Tas.), an area of 14,125 hectares was excised from the Franklin Lower Gordon Wild Rivers National Park as from 2nd September, 1982, and a further area of 780 hectares is to be excised from that National Park as from 1st July, 1990. By a proclamation made on 7th September, 1982, under the Hydro-Electric Commission Act 1944 (Tas.) the area of 14,125 hectares was vested in the Commission on 16th September, 1982, and the area of 780 hectares is to vest in the Commission on 2nd July, 1990. By further proclamations, two other areas, one within the Southwest Conservation Area and one to the north of the Southwest Conservation Area, were also vested in the Commission on 16th September, 1982, but those areas are not within the Parks and therefore not material for present purposes. The Commission intends to construct the works authorized by the Gordon River Hydro-Electric Power Development Act 1982 on the area of 14,125 hectares already mentioned. The water storage reservoir will have a surface area of 12,000 hectares, of which 9,500 hectares (including the area of 780 hectares already mentioned) will be within the Parks and 2,500 hectares will be outside their boundaries. (at p457)

5. In the meantime the Bureau of the World Heritage Committee had met in June 1982, to consider nominations which had been received for the inclusion of a number of properties on the World Heritage List, and in relation to the nomination of the Parks had resolved to request the Australian authorities to provide (inter alia) a statement of intent regarding the construction of dams and the possibility of extending the protected area. On 8th December, 1982, the World Heritage Committee received from the Australian Government a response to this request. The Government stated that the Tasmanian Government is constructing a hydro-electric power scheme in the nominated area, and that the Australian Government has been and is discussing the scheme with the Tasmanian Government. The Government further stated that the possibility of extension of the protected area was considered at the time of the original nomination and that it was decided that it was inappropriate to include further areas. It was added that the nominated area lies mostly within the Southwest Conservation Area which provides an adequate buffer zone. The response concluded:
"The Australian Government considers that the Committee should inscribe the Western Tasmania Wilderness National Parks on the World Heritage List at its current session." (at p457)

6. The World Heritage Committee met from 13th to 17th December, 1982, and decided to enter in the World Heritage List a number of properties including the Parks. The Committee made the following comment:
"The Committee is seriously concerned at the likely effect of dam construction in the area on those natural and cultural characteristics which make the property of outstanding universal value. In particular, it considers that flooding of parts of the river valleys would destroy a number of cultural and natural features of great significance, as identified in the ICOMOS and IUCN reports. The Committee therefore recommends that the Australian authorities take all possible measures to protect the integrity of the property. The Committee suggests that the Australian authorities should ask the Committee to place the property on the List of World Heritage in Danger until the question of dam construction is resolved." (at p458)

7. ICOMOS is the International Council of Monuments and Sites, a body which, like IUCN, is recognized by Art. 8.3 of the Convention as having an advisory capacity. As the Committee's comment reveals, both ICOMOS and IUCN had submitted reports on the nomination of the Parks. IUCN, in its report, relied both on the fact that the area of the Parks is "one of the world's last great remaining temperate pristine wildernesses" and on the archaeological and anthropological importance of the area. It recommended that the Parks be added to the World Heritage List and that the Committee should express concern about the deleterious impact of the dam on the property. The report by ICOMOS contained only a provisional recommendation in support of the listing of the Parks, and was based on information concerning aboriginal sites within the Parks. However, in April 1983, ICOMOS reaffirmed its support for the listing of the Parks and stated that it was of the opinion "that the integrity of the cultural sites which justified the inscription of these Parks on the World Heritage List (in particular, Fraser Cave, Cave Bay Cave, Beginner's Luck Cave, etc.) must absolutely be maintained, along with the considerable archeological (sic) reserves which are in the process of being prospected". Although it is not material for present purposes, it may be remarked in the interests of accuracy that neither Cave Bay Cave nor Beginner's Luck Cave is within the area of the Parks. (at p458)

8. The World Heritage (Western Tasmania Wilderness) Regulations were notified in the Gazette on 31st March, 1983 and amending Regulations were notified in the Gazette on 27th May, 1983. The World Heritage Properties Conservation Act was assented to on 22nd May, 1983. Regulations (S.R. No. 65 of 1983) made under that Act were notified on 25th May, 1983, and amending Regulations (S.R. No. 67 of 1983) were notified on 27th 7ay, 1983. Ten proclamations made under the Act were published in the Gazette on 26th May, 1983. Before I discuss the effect of the Act, Regulations and proclamations, it is convenient to refer to some other facts and allegations some of which are disputed, whose relevance is in question.
Further facts and disputed allegations (at p458)

9. In the nomination submitted by the Commonwealth to the World Heritage Committee in November 1981, and in the reports received by the World Heritage Committee from its advisory bodies, it was said that the listing of the Parks in the World Heritage List is justified because the Parks form part of the cultural and natural heritage, and have "outstanding universal value".The Convention draws a distinction between the cultural heritage and the natural heritage. By Art. 1, the following shall be considered as "cultural heritage":
"monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science;
"groups of buildings:. . .
"sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view." (at p458)

10. By Art. 2, for the purposes of the Convention, the following shall be considered as "natural heritage": "natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;
"geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;
"natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty." (at p458)

11. The Commonwealth contends, as the World Heritage Committee has accepted, that the Parks satisfy the criteria for listing under both heads. So far as the natural heritage is concerned, the Commonwealth contends that the Parks, including the 14,125 hectares which are now vested in the Commission and to which I shall henceforth refer as "the subject area", comprise "most of the last great temperate wilderness remaining in Australia and one of the last remaining in the world". It alleges that the Parks satisfy all the criteria required for nomination to the World Heritage List, and goes into some detail in describing the features which it alleges make the Parks of outstanding universal value. (at p458)

12. The State of Tasmania acknowledges the significance and beauty of the area of the Parks as a whole, but points to the fact that of the 769,355 hectares which constitute the total area of the Parks, only 9,500 hectares (1.23 per cent of the total area) will be flooded, whereas the whole of the Parks (11.3 per cent of the total area of Tasmania) is or may be affected by the World Heritage Properties Conservation Act and regulations thereunder. It asserts that the natural features which justify the listing of the Parks are to be found in the Parks as a whole, and that the flooding of the small proportion of the Parks that will be affected by the dam will not destroy or significantly affect the whole. On any view of the law it is unnecessary to go into the details of the dispute as to these facts, or to resolve the dispute. It is not contended that the validity of either the Act or the World Heritage (Western Tasmania Wilderness) Regulations depends on the answer to the question whether the construction of the dam will significantly endanger, or detract from the value of, the area of the Parks as a whole. Evidence directed to the question whether the value and significance of the Parks as a whole will be diminished by the construction of the dam is not relevant to any issue in the case. (at p459)

13. The subject area is said to be part of the cultural heritage because it contains significant Aboriginal archaeological sites. It is not clear that there are significant sites within the subject area, although there are certainly significant sites within the Parks. Two caves, Kutikina Cave (formerly known as Fraser Cave) and Deena Reena Cave, which are situated within the area of 780 hectares which is to vest in the Commission in 1990, are alleged to be "two of the seven archaeologically richest limestone cave sites in the Western Pacific region". It is alleged that the former cave is an immensely rich archaeological site and that recent radio carbon dating of deposit at basal levels of the site indicated human occupation dated to beyond 20,000 years ago. Older material is at present being radio-carbon-dated. Carbon samples from hearths in Deena Reena Cave have been dated to about 19,000 years ago. There are other caves in the lower Franklin River valley whose contents have not yet been investigated. It is alleged that investigations suggest that archaeological deposits contained in the limestone caves along the lower Franklin River valley are likely to transform archaeological knowledge of the stone tool technology of Ice Age man in Tasmania. Those cave sites, it is said, contain evidence of the economic and cultural systems of their inhabitants, who, in prehistoric times, were the most southerly-dwelling human beings on earth. It is further alleged that archaeological sites along the river terraces of the Denison and Franklin Rivers, together with the archaeological cave sites, make it highly probable that the subject area is capable of providing archaeologists and scholars generally with a comprehensive picture of settlement of a whole river system by early man and his more recent Aboriginal descendants. A site upon Flat Island, recently radiocarbon-dated to 15,000 years ago, is said to be the only known open archaeological site of such antiquity in Tasmania. The Commonwealth asserts that the proposed inundation would result in the loss and destruction of irreplaceable evidence concerning the occupation and settlement of an entire river system by Ice Age man and his more recent Aboriginal descendants, and that the flooding of the archaeological cave sites of the lower Franklin River valley would destroy their outstanding universal cultural and historical value. (at p459)

14. The State of Tasmania on the other hand asserts that there are no significant archaeological sites in the subject area. It says that there are archaeological sites of some significance in the area of 780 hectares already referred to but alleges that there are many sites in Tasmania and elsewhere in Australia of equal or greater significance and that the likelihood of all of these sites ever being exhaustively investigated is remote, having regard to the cost. Deposits in Beginner's Luck Cave have been dated back 20,650 years and those in Cave Bay Cave have been dated back 22,750 years; as has been mentioned, those caves are not within the area of the Parks. It is further alleged by Tasmania that if the sites are to be inundated there will be a period of at least five years before any inundation and eight years before any complete inundation and that in any case inundation will not completely destroy the sites. It is alleged that there are means available to the Commonwealth, should it choose to do so, of salvaging or protecting one or more of the sites from flooding. Finally, it is claimed that no single site is of such importance for future archaeological investigation that it could be described as unique or irreplaceable. (at p459)

15. According to the nomination made by the Commonwealth to the World Heritage Committee, although Aborigines frequented the coast during the early years of European contact, and although in 1832 and 1840 evidence of their presence was observed elsewhere in the Parks, they were not observed in the Franklin or Gordon Rivers area or inland in the southwest. No suggestion is made in the case for the Commonwealth that any Aborigines were on the subject land during the period from the earliest days of white occupation until after the construction of the dam commenced. The report made by IUCN to the meeting of the World Heritage Committee in December 1982, to which reference has already been made, suggested that the Tasmanian Aborigines were extinct, but other material before the Court indicates that there are some thousands of people of Aboriginal descent (but of mixed blood) who have been identified as the Aboriginal population of Tasmania. (at p459)

16. Evidence which is directed to the archaeological importance of the subject area, the connexion of the Aboriginal people of Tasmania with that area, and the significance of the archaeological sites for members of the Aboriginal people, need be considered only if the validity of the impugned enactments depends on the judicial determination of these disputed questions of fact. (at p459)

17. There are further allegations of fact, made by Tasmania, regarding the economic importance to the State of the generation of electricity by means of the Gordon below Franklin scheme, and the large sums of money already spent or committed in the construction of the dam. It does not appear that the validity of the enactments depends on the correctness of these allegations, which therefore need not be considered. The World Heritage (Western Tasmania Wilderness) Regulations (at p460)

18. The National Parks and Wildlife Conservation Act 1975, under which the World Heritage (Western Tasmania Wilderness) Regulations purport to have been made, is in one respect a somewhat unusual statute. Part II of that Act enables the Governor-General to declare an area to be a park or reserve or conservation zone, and provides for the consequences of such a declaration. Part III deals with the powers and functions of the Director of National Parks and Wildlife. Parts IV, V and VI deal with the administration of the National Parks and Wildlife Service and the powers of warders and rangers and with certain matters of finance and with the transfer of certain officers and employees of the public service. Part VII, which deals with certain miscellaneous matters, contains two sections each of which confers a power to make regulations. Section 69 reads as follows:
"(1) The Governor-General may make regulations for and in relation to giving effect to an agreement specified in the Schedule. (2) Regulations made under sub-section (1) in relation to an agreement that has not entered into force for Australia shall not come into operation on a date earlier than the date on which the agreement enters into force for Australia. (3) Sub-sections 71(5),(7) and (8) apply in relation to regulations made under this section in like manner as they apply in relation to regulations made under section 71." (at p460)

19. The schedule refers to five agreements, including the Convention and a Convention on International Trade in Endangered Species of Wild Fauna and Flora signed at Washington on 3rd March, 1973. Section 71(1) provides as follows:
"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act." (at p460)

20. Section 71(2) provides that without limiting the generality of sub-s.(1), regulations may be made for a number of specified purposes, including "(e) providing for the protection and preservation of parks and reserves and property and things in parks and reserves". Sub-sections(5) and (6) provide as follows: "(5) The power to make regulations conferred by this Act may be exercised -
(a) in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case;and
(b) so as to make, as respects the cases in relation to which it is exercised, the same provision for all those cases or different provision for different cases or classes of case.
(6) The power to make regulations conferred by this Act shall not be taken, by implication, to exclude the power to make provision for or in relation to a matter by reason only of the fact that -
(a) a provision is made by this Act in relation to that matter or another matter; or
(b) power is expressly conferred by this Act to make provision by regulation for or in relation to another matter." (at p460)

21. Subsections (7) and (8) of s.71 are not material for present purposes. (at p460)

22. The World Heritage (Western Tasmania Wilderness) Regulations purport to have been made under s.69. They contain a number of recitals, which refer inter alia to the Convention, the obligations of Australia thereunder, the nomination of the Parks and their inclusion in the World Heritage List and the effect of works which are proposed to be carried out, and are being carried out, within parts of the area of the Parks. By Regulation 2, the Regulations apply to the areas therein described, which together form the subject area of 14,125 hectares. Regulation 4 provides inter alia that the Regulations bind the Crown in the right of the Commonwealth or of the State of Tasmania. Regulation 5 in its amended form provides as follows:
"(1) Except with the consent of the Minister, a person shall not, within an area to which these Regulations apply, whether by himself or by his servant or agent -
(a) construct a dam or associated works or do any act in the course of, or for the purpose of, the construction of a dam or associated works;
(b) carry out any excavation works;
(c) erect a building or other substantial structure or do any act in the course of, or for the purpose of, the erection of a building or other substantial structure;
(d) kill, cut down, damage or remove any tree;
(e) construct or establish any road or vehicular track;
(f) use explosives; or
(g) carry out any other works.
Penalty: $5,000.
(2) Except with the consent of the Minister, a person shall not, within an area to which these Regulations apply, whether by himself or by his servant or agent, do any act, not being an act referred to in sub-regulation (1), that is likely adversely to affect the conservation or preservation of that area as part of the world cultural heritage or natural heritage.
Penalty: $5,000.
(3) Where -
(a) within an area to which these Regulations apply, a person does an act referred to in sub-regulation (1) without the consent of the Minister;and
(b) the controller of that area or of the relevant part of that area has failed to take reasonable steps to prevent the doing of the act,
the controller of that area or of the relevant part of that area, as the case may be, is guilty of an offence and is punishable upon conviction by a fine not exceeding $5,000.
(4) For the purposes of sub-regulation (3), a person is the controller of an area or of a part of an area if the person is -
(a) the person in whom that area or part is vested;
or
(b) if the person in whom that area or part is vested is not the occupier of that area or part - a person who is the occupier of that area or part, as the case may be." (at p461)

23. Regulation 7 (which has since ceased to have any operation by reason of s. 19(2) of the Act) provided:
"(1) Where, but for this regulation, the operation of a provision of these Regulations would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by a court of competent jurisdiction.
(2) In sub-regulation (1), 'acquisition of property' and 'just terms' have the same respective meanings as in paragraph 51(xxxi) of the Constitution." (at p461)

24. It was submitted on behalf of Tasmania that s. 69 of the National Parks and Wildlife Conservation Act 1975, on its proper construction, authorizes the making only of regulations which carry into effect an agreement mentioned in the schedule in relation to parks and reserves which are established under Pt. II of the Act. This submission cannot be accepted. The power which s. 69 confers is to make regulations for and in relation to giving effect to an agreement specified in the schedule, and there is nothing in the section to limit the regulations that may be made to regulations which relate only to parks and reserves established under Pt. II. The section stands in sharp contrast to s. 71, which gives a wide power to make regulations necessary or convenient to be prescribed for carrying out or giving effect to the Act, including regulations to protect and preserve parks and reserves. Section 71 would give ample power to carry any of the agreements specified in the schedule into effect in relation to parks and reserves established under the Act. Moreover at least one of the Conventions mentioned in the schedule - the Convention on International Trade in Endangered Species of Wild Fauna and Flora - could not be carried into effect by regulations which relate only to parks and reserves established under Pt. II. Section 69 has for one reason or another been placed in a context to which it is alien. The clear indication of the Parliament in including the section was to give a power additional to the regulation-making power conferred by s. 71 and unrelated to any other provision of the National Parks and Wildlife Conservation Act, except those parts of s. 71 which are expressly applied by s. 69(3). (at p461)

25. The World Heritage (Western Tasmania Wilderness) Regulations will be valid if s. 69 was a valid exercise of the power given by s. 51 (xxix) of the Constitution to make laws with respect to "external affairs", and if the regulations themselves were regulations for and in relation to giving effect to the Convention. The World Heritage Properties Conservation Act 1983 (at p461)

26. Whereas the World Heritage (Western Tasmania Wilderness) Regulations, and s. 69 of the National Parks and Wildlife Conservation Act 1975, if valid, can be sustained only as an exercise of the power conferred by s. 51(xxix) of the Constitution, the Parliament, in enacting the World Heritage Properties Conservation Act 1983, invoked other sources of power as well. There is considerable overlapping not only between the provisions of the Act themselves but also between the regulations and proclamations thereunder. The object of those who framed the Act, regulations and proclamations was apparently to endeavour to ensure that one provision, made under one source of power, might prove effective, even though the others might fail. (at p461)

27. By s. 3(2) of the Act, a reference to identified property is to be read as a reference to:
"(a) property forming part of the cultural heritage or natural heritage, being property that -
(i) the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article; or
(ii) has been declared by the regulations to form part of the cultural heritage or natural heritage; (b) any part of property referred to in paragraph (a)." (at p461)

28. The whole area of the Parks answers the description contained in par.(a)(i), and therefore is "identified property" within the meaning of the Act. In addition, the Regulations have declared certain areas to form part of the cultural heritage or natural heritage, so that those areas come within par. (a)(ii) of the definition. Regulation 2 declares that the following property forms part of the natural heritage:
(a) the whole of the Parks; and
(b) an area which surrounds a stretch of the Franklin River and a small stretch of the Gordon River and includes the dam site; this area forms part of the subject area and of the further area of 780 hectares which will be vested in the Commission and it is convenient to refer to it as "the Franklin natural area". (at p461)

29. Regulation 3 declares that the following property forms part of the cultural heritage:
(a) an area adjacent to the Franklin River which is that part of the limestone belt which contains caves and other archaeological sites - it is convenient to refer to it as the "cultural area";
(b) Kutikina Cave and Deena Reena Cave; and (c) all other archaeological sites within the cultural area. (at p462)

30. The operative provisions of the Act are contained in three sections - ss. 9, 10 and 11. However, those sections only become effective when they are applied to particular property by proclamation made by the Governor-General under ss. 6, 7 or 8 as the case may be. A proclamation may be made only in respect of identified property as defined in s. 2, and only if certain other conditions are satisfied. The conditions are such as appear to have been thought by the Parliament to be necessary to render available the different heads of legislative power which have been invoked. Section 6 reads as follows:
"(1) A Proclamation may be made under subsection (3) in relation to identified property that is not in any State.
(2) A Proclamation may also be made under subsection (3) in relation to identified property that is in a State and is property to which one or more of the following paragraphs applies or apply:
(a) the Commonwealth has, pursuant to a request by the State, submitted to the World Heritage Committee under Article 11 of the Convention that the property is suitable for inclusion in the World Heritage List provided for in paragraph 2 of the Article, whether the request by the State was made before or after the commencement of this Act and whether or not the property was identified property at the time when the request was made;
(b) the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise;
(c) 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);
(d) 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; (e) the property is part of the heritage distinctive of the Australian nation - (i) by reason of its aesthetic, historic, scientific or social significance; or

(ii) by reason of its international or national renown,
and, by reason of the lack or inadequacy of any other available means for its protection or conservation, it is peculiarly appropriate that measures for the protection or conservation of the property be taken by the Parliament and Government of the Commonwealth as the national parliament and government of Australia.
(3) Where the Governor-General is satisfied that any property in respect of which a Proclamation may be made under this sub-section is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which section 9 applies." (at p462)

31. The section is obviously enacted in reliance on the power conferred by s. 51(xxix) of the Constitution, and also on the implied inherent power resulting from nationhood. In fact five of the proclamations gazetted on 26th May, 1983, were made under s. 6(3). They declare that s. 9 applies to the following areas:
(1) the Franklin Lower Gordon Wild Rivers National Park;
(2) the part of the Franklin natural area that is within the total area of 14,905 hectares (the excised area) which is made up of the 14,125 hectares and the 780 hectares already mentioned; (3) the part of the cultural area that is within the excised area;
(4) Kutikina Cave and Deena Reena Cave; and (5) an open archaeological site within the cultural area. (at p462)

32. Section 9 reads as follows:
"(1) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent -
(a) to carry out any excavation works on any property to which this section applies;
(b) to carry out operations for, or exploratory drilling in connection with, the recovery of minerals on any property to which this section applies;
(c) to erect a building or other substantial structure on any property to which this section applies or to do any act in the course of, or for the purpose of, the erection of a building or other substantial structure on any property to which this section applies;
(d) to damage or destroy a building or other substantial structure on any property to which this section applies;
(e) to kill, cut down or damage any tree on any property to which this section applies;
(f) to construct or establish any road or vehicular track on any property to which this section applies; (g) to use explosives on any property to which this section applies; or
(h) if an act is prescribed for the purposes of this paragraph in relation to particular property to which this section applies, to do that act in relation to that property.
(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent, to do any act, not being an act the doing of which is unlawful by virtue of sub-section (1), that damages or destroys any property to which this section applies.
(3) If an application of sub-sections (1) and (2) of this section in relation to particular property, being property that is relevant property by virtue of a particular paragraph or particular paragraphs of sub-section 6(2), would be within the powers of the Parliament if the property were relevant property by virtue only of that paragraph or those paragraphs, it is intended that sub-sections (1) and (2) of this section should have that application in relation to the property whether or not the property is also relevant property by virtue of another paragraph or other paragraphs of sub-section 6(2).
(4) In sub-section (3), 'relevant property' means property in respect of which a Proclamation may, by virtue of sub-section 6(2), be made under sub-section 6(3)." (at p463)

33. Sections 7 and 10 rely on the corporations power conferred by s. 51(xx) of the Constitution. Section 7 provides:
"Where the Governor-General is satisfied that any identified property is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which section 10 applies." (at p463)

34. Section 10(1) provides:
"In this section -
'foreign corporation' means a foreign corporation within the meaning of paragraph 51 (xx) of the Constitution;
'trading corporation' means a trading corporation within the meaning of paragraph 51 (xx) of the Constitution." (at p463)

35. Section 10(2) commences as follows:
"Except with the consent in writing of the Minister, it is unlawful for a body corporate that -
(a) is a foreign corporation;
(b) is incorporated in a Territory; or
(c) not being incorporated in a Territory, is a trading corporation formed within the limits of the Commonwealth, whether itself or by its servant or agent - . . . " (at p463)

36. Then follow pars. (d) to (m) which are identical with pars. (a) to (h) of s. 9(1). Subsections (3) and (4) of s. 10 provide as follows:
"(3) Except with the consent in writing of the Minister, it is unlawful for a body corporate of a kind referred to in sub-section (2), whether itself or by its servant or agent, to do any act, not being an act the doing of which is unlawful by virtue of that sub-section, that damages or destroys any property to which this section applies.
(4) Without prejudice to the effect of sub-sections (2) and (3), except with the consent in writing of the Minister, it is unlawful for a body corporate of the kind referred to in paragraph (2) (c), whether itself or by its servant or agent, to do, for the purposes of its trading activities, an act referred to in any of paragraphs (2) (d) to (m) (inclusive) or an act referred to in sub-section (3)." (at p463)

37. Three proclamations made under s. 7 and gazetted on 26th May, 1982, declare that s. 10 applies to the following property: (1) that part of the Franklin natural area that is within the excised area; (2) that part of the cultural area that is within the excised area; and
(3) Kutikina Cave and Deena Reena Cave. (at p463)

38. By Regulation 4 of the World Heritage Properties Conservation Regulations (made under the Act) the relevant property is defined to mean: (a) that part of the cultural area which is within the excised area;
(b) Kutikina Cave and Deena Reena Cave; and
(c) the open archaeological site. (at p463)

39. Regulation 4(2) then provides as follows:
"For the purposes of paragraphs 9(1)(h) and 10(2)(m) of the Act, each of the following acts is prescribed in relation to each relevant property:
(a) carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that relevant property or of any part of that relevant property; (b) carrying out works preparatory to the construction of such a dam;
(c) carrying out works associated with the construction or continued construction of such a dam." (at p463)

40. Sections 8 and 11 are enacted in reliance on s. 51(xxvi) of the Constitution. Section 8 provides:
"(1) It is hereby declared that it is necessary to enact this section, section 11 and sub-sections 13(7) and 14(5) as special laws for the people of the Aboriginal race.
(2) A reference in this section to an Aboriginal site is a reference to a site -
(a) that is, or is situated within, identified property; and
(b) the protection or conservation of which is, whether by reason of the presence on the site of artefacts or relics or otherwise, of particular significance to the people of the Aboriginal race.
(3) Where the Governor-General is satisfied that an Aboriginal site is being or is likely to be damaged or destroyed or that any artefacts or relics situated on an Aboriginal site are being or are likely to be damaged or destroyed, he may, by Proclamation, declare that site to be a site to which section 11 applies." (at p463)

41. Section 11(1) commences "except with the consent in writing of the Minister, it is unlawful for a person, whether by himself or by his servant or agent - ". Then follow pars. (a) to (c) which are identical with pars. (a) to (c) of s. 9(1). Paragraphs (d) and (e) then provide:
"(d) to damage or destroy any artefacts or relics situated on any site to which this section applies;
(e) to remove any artefacts or relics from any site to which this section applies;". (at p463)

42. Then follow pars. (f) to (j) which are identical with pars. (e) to (h) of s. 9(1). Subsections (2) and (3) of s. 11 provide as follows:
"(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent, to do any act, not being an act the doing of which is unlawful by virtue of sub-section (1) -
(a) that damages or destroys; or (b) that is likely to result in damage to or the destruction of,
any site to which this section applies or any artefacts or relics on any site to which this section applies. (3) Except with the consent in writing of the Minister, it is unlawful for a person, whether himself or by his servant or agent, to do any act preparatory to the doing of an act that is unlawful by virtue of sub-section (2)." (at p464)

43. Two proclamations gazetted on 26th May, declare the following sites to which s. 11 of the Act applies:
(a) Kutikina Cave and Deena Reena Cave; and
(b) the open archaeological site. (at p464)

44. Regulation 5(1) defines the "relevant site" to mean:

(a) Kutikina Cave;
(b) Deena Reena Cave; and
(c) the open archaeological site. (at p464)

45. Regulation 5(2) then provides as follows:
"For the purposes of paragraph 11(1)(j) of the Act, each of the following acts is prescribed in relation to each relevant site:
(a) carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that relevant site or of any part of that relevant site; (b) carrying out works preparatory to the construction of such a dam;
(c) carrying out works associated with the construction or continued construction of such a dam." (at p464)

46. Section 13(1), (5) and (7) provide as follows:
"(1) In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property."
"(5) Without limiting any other application of the Administrative Decisions (Judicial Review) Act 1977, for the purposes of the application of that Act in relation to a decision of the Minister to give or refuse to give a consent pursuant to section 9 or 10 in relation to particular property -
(a) a person whose use or enjoyment of any part of the property is, or is likely to be, adversely affected by the decision shall be taken to be a person aggrieved by the decision; and
(b) an organization or association of persons, whether incorporated or not, shall be taken to be a person aggrieved by the decision if the decision relates to a matter which is included in the objects or purposes of the organization or association and to which activities engaged in by the organization or association relate,"
"(7) Without limiting any other application of the Administrative Decisions (Judicial Review) Act 1977, for the purposes of the application of that Act in relation to a decision of the Minister to give or refuse to give a consent pursuant to section 11, any member of the Aboriginal race shall be taken to be a person aggrieved by the decision." (at p464)

47. Section 14(1) gives the High Court and the Federal Court power, on the application of the Attorney-General or an interested person (including a member of the Aboriginal race: s. 14(5)), to grant an injunction to restrain acts made unlawful by ss. 9, 10 and 11. (at p464)

48. An argument advanced by Tasmania is that in any case the Act is invalid in that it brings about an acquisition of property otherwise than on just terms. Section 17 of the Act, which is relevant to that argument, provides as follows:
"(1) In this section -
'acquisition of property' has the same meaning as in paragraph 51 (xxxi) of the Constitution;
'Regulations' means the World Heritage (Western Tasmania Wilderness) Regulations, as amended and in force from time to time under the National Parks and Wildlife Conservation Act 1975.
(2) The compensation that may be agreed upon, recommended or determined pursuant to this section in respect of an acquisition of property from a person may consist of or include all or any of the following:
(a) the payment of an amount to the person by instalments;
(b) the payment of an amount or part of an amount to the person subject to compliance by the person with specified conditions;
(c) the making of a payment or payments to the person the amount or amounts of which is or are subject to variation in the event of specified circumstances prevailing at a particular time or times
(3) Where a person considers that the operation of this Act or of the Regulations has resulted in an acquisition of property from the person, the person may, by notice in writing sent by post to the Minister at his office at Parliament House, Canberra (being a notice that specifies an address to which a notice may be sent to the person by the Minister pursuant to sub-section (4)), request the Commonwealth to pay an amount of compensation specified in the notice (in this section referred to as the 'claimed amount') in respect of the acquisition.
(4) If, before the expiration of 3 weeks after the receipt by the Minister of a notice given by a person pursuant to sub-section (3), the Minister sends by post to the person at the address of the person specified in that notice a notice in writing stating that he does not consider that the operation of this Act or of the Regulations has resulted in an acquisition of property from the person, the person may make an application to the High Court requesting the Court to make a declaration that the operation of this Act or of the Regulations has resulted in an acquisition of property from the person.
(5) Where the Minister does not, before the expiration of 3 weeks after the receipt by him of a notice given by a person pursuant to sub-section (3), send a notice to the person pursuant to sub-section (4), the operation of this Act or of the Regulations, as the case requires, shall be taken to have resulted in an acquisition of property from the person.
(6) Where -
(a) by virtue of sub-section (5), the operation of this Act or of the Regulations is taken to have resulted in an acquisition of property from a person; or (b) the High Court makes a declaration that the operation of this Act or of the Regulations has resulted in an acquisition of property from a person, the Commonwealth is liable to pay to the person such compensation in respect of the acquisition as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined in accordance with the succeeding provisions of this section.
(7) Where -
(a) the Commonwealth is liable, by virtue of sub-section (6), to pay compensation to a person in respect of an acquisition of property from the person, being an acquisition in respect of which the claimed amount is equal to or exceeds $5,000,000; and
(b) the person and the Commonwealth do not, before the expiration of 6 months after - (i) in a case to which paragraph (6)(a) applies - the expiration of the period of 3 weeks referred to in sub-section (5); or (ii) in a case to which paragraph (6)(b) applies - the day on which the declaration referred to in that paragraph was made - reach agreement as to the compensation payable in respect of the acquisition, the Governor-General shall, by notice in writing published in the Gazette, state that he intends, after the expiration of 14 days after the publication of the notice, to establish a Commission of Inquiry to inquire into and report to him on the compensation payable in respect of the acquisition.
(8) Where -
(a) the Governor-General has, pursuant to sub-section (7), given notice of his intention to establish a Commission of Inquiry to inquire into the compensation payable in respect of an acquisition of property from a person; and
(b) the person and the Commonwealth have not reached agreement as to the compensation payable, the Governor-General shall, by instrument in writing published in the Gazette, establish the Commission immediately after the expiration of the period of 14 days referred to in that sub-section and shall, by that instrument, appoint 3 persons to be the members of the Commission.
(9) Where -
(a) a Commission of Inquiry is to be established to inquire into the compensation payable in respect of an acquisition of property that is in a State; and
(b) before the expiration of the day before the day on which the Commission is to be established, the Premier of the State, by notice in writing furnished to the Governor-General, nominates a person for appointment as a member of the Commission,
one of the persons appointed pursuant to sub-section (8) shall be the person so nominated.
(10) Where a Commission of Inquiry has been established to inquire into and report on the compensation payable in respect of an acquisition of property from a person, the Commission shall, as soon as practicable, commence to conduct an inquiry into that matter and, unless the person and the Commonwealth reach agreement as to the compensation payable, shall, before the expiration of 12 months after the establishment of the Commission, give a report in writing to the Governor-General setting out its recommendation as to the compensation that is fair and just in respect of the acquisition and setting out the reasons for its recommendation.
(11) If, after the establishment of a Commission of Inquiry to inquire into and report on the compensation payable in respect of an acquisition of property from a person and before the Commission has given a report in writing to the Governor-General under subsection (10), the person and the Commonwealth reach agreement as to the compensation payable, the Governor-General shall, by instrument in writing, abolish the Commission and terminate the appointments of the members of the Commission.
(12) Before the expiration of 3 months after the day on which he receives a report of a Commission of Inquiry in relation to the payment of compensation in respect of an acquisition of property from a person, the Governor-General shall, if the person and the Commonwealth have not reached agreement as to the compensation payable, having regard to the report of the Commission and to such other matters as the Governor-General considers relevant, determine the compensation that the Governor-General considers to be fair and just in respect of the acquisition.
(13) Where the Governor-General makes a determination pursuant to sub-section (12) in relation to an acquisition of property from a person, the Minister shall, before the expiration of 14 days after that determination is made, give notice in writing to the person setting out the terms of the determination.
(14) Where the operation of this Act or of the Regulations has resulted in or is taken to have resulted in an acquisition of property from a person and -
(a) the acquisition is an acquisition in respect of which the claimed amount is less than $5,000,000;
(b) a Commission of Inquiry does not give a report in writing to the Governor-General in accordance with sub-section (10) before the expiration of the period of 12 months referred to in that sub-section otherwise than by reason of the person and the Commonwealth having reached agreement as to the compensation payable; or
(c) the person considers that the compensation determined by the Governor-General pursuant to subsection (12) in respect of the acquisition is not fair and just,
the Federal Court may, on the application of the person, determine the compensation that is fair and just in respect of the acquisition.
(15) The Royal Commissions Act 1902 applies to, and in relation to, an inquiry by a Commission of Inquiry established under this section as if the Commission of Inquiry were a Commission of Inquiry issued by the Governor-General by Letters Patent pursuant to that Act.

67. What is clear is that a law of general application and of significance to all is not a special law for the people of any race. In Koowarta v. Bjelke-Petersen this was pointed out by Stephen J., at p. 642:
"To be within power under par. (26) a law must be special in the sense that it is the particular race, or races, for whom it legislates that gives rise to the occasion for its enactment. The Racial Discrimination Act is not such a law. True, it legislates about race and proscribes discrimination upon the basis of race. But it is a perfectly general law, addressed to all persons regardless of their race and requiring that the members of all races shall be free from discrimination on account of race. It protects no particular race or races. As its recitals attest, its purpose is to give effect to the International Convention, a copy of which is scheduled to the Act. That Convention, in its opening recitals, stresses the promotion of universal respect for human rights and fundamental freedoms for all without distinction; universality of application lies very much at its heart. The Act takes from the Convention this quality, thereby denying to it the character of a special law to which par. (26) refers." (at p572)

68. See also per Gibbs C.J., at p. 632, per Wilson J. at p. 658. (at p572)

69. As was said by Brennan J. at p. 665: "it is of the essence of a law falling within par. (xxvi) that it discriminates between the people of the race for whom the special laws are made and other people." (at p572)

70. Notwithstanding the declaration made in s. 8(1) of the World Heritage Properties Conservation Act, it is plain to my mind that the laws which are deemed necessary for the people of the Aboriginal race are not special laws for those people. The operative provisions, which consist of the prohibitions contained in s. 11, are addressed generally to all persons. The Aboriginal sites in relation to which those prohibitions may operate are, by definition, part of the cultural or natural heritage of the nation. The laws are not laws for the protection of Aboriginal sites or artefacts or relics. There may be, and probably are, Aboriginal sites or artefacts or relics which are far more significant to the people of the Aboriginal race, but the Act has nothing to say about them. It is concerned with "identified property" which is property of significance because it forms part of the cultural heritage or natural heritage of the nation. Even if it can be said, as the Act does, that some of the sites may be of special significance to the people of the Aboriginal race, that does not affect the general application of the relevant law. If that is not otherwise apparent, it is made abundantly clear by the fact that in giving or refusing his consent to do those things which s. 11 otherwise makes unlawful, the Minister is not required to have regard to matters of significance to the people of the Aboriginal race. He may grant or refuse his consent with regard to those matters which he considers significant generally. This generality may be contrasted with the particularity of s. 13(1) which requires the Minister in determining whether or not to give a consent pursuant to s. 9 in relation to any property to which that section applies, to have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property. (at p572)

71. The laws which are contained in ss. 8 and 11 of the World Heritage Properties Conservation Act are no less laws relating to the protection and conservation of certain property forming part of the Australian cultural or natural heritage than are the other provisions of the Act. They are not special laws for the people of the Aboriginal race. The implied inherent power said to arise from nationhood (at p572)

72. The submission made by the Commonwealth under this head was directed to s. 6(2)(e) of the World Heritage Properties Conservation Act which provides that s. 9 may be brought into operation by proclamation in relation to identified property if the property is part of the heritage distinctive of the Australian nation by reason of specified qualities or by reason of its international or national renown and if, by reason of the lack or inadequacy of any other available means for its protection or conservation, it is peculiarly appropriate that measures for the protection or conservation of the property be taken by the Parliament and Government of the Commonwealth as the national parliament and government of Australia. It was submitted that the words "peculiarly appropriate" mean no more than "fitting" and that the paragraph gives a valid operation to s. 9 in respect of the property proclaimed under s. 6(3). (at p572)

73. It is not, I think, unfair to say that this submission was but faintly put. From time to time references have been made in the cases to Commonwealth legislative powers which are "incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government"; see Attorney-General (Vict.) v. The Commonwealth (1945), 71 C.L.R. 237, at p. 269. Generally speaking, the references are explicable in terms of the power to spend, if such is an appropriate term to describe the power arising from ss. 81 and 83 of the Constitution in combination with such other powers as the Commonwealth may possess, and the executive power, both coupled if necessary with the incidental power (s. 51(xxxix)); see Ex parte Walsh and Johnson; In re Yates (1925), 37 C.L.R. 36, at p. 94; Australian Communist Party v. The Commonwealth, (supra), at p. 188; R. v. Sharkey, (supra), at pp. 135, 148; Burns v. Ransley (1949), 79 C.L.R. 101, at pp. 109-110, 116. However, if there is some power which extends beyond that which can be drawn from the power to spend, the executive power and the incidental power and which can be described as inherent in nationhood, then it has not, as Barwick C.J. said in Victoria v. The Commonwealth and Hayden, (supra), at p. 362, "been fully explored." Indeed, it has not really been explored at all. (at p572)

74. I would seek to make only one comment in this case because it is relevant to some of my earlier remarks. In speaking of nationhood, it is important to distinguish between the nationhood which was achieved upon federation and the nationhood which may be said to be the result of the attainment of international personality. Powers, executive rather than legislative, may be inherent in nationhood of the latter kind, but they are derived from the recognition of a status rather than from any constitutional provision. It is to the Constitution which one must look to find powers which arise from nationhood of the former kind. (at p573)

75. In this case, however, it is sufficient to say that even if it be thought by some to be fitting that measures for the protection or conservation of the property in question be undertaken by the Commonwealth because that property is part of the heritage of the Australian nation, no such view was taken in the division of power made by the Constitution. Although it can be said that the protection or conservation of the Australian cultural and natural heritage is in the national interest (and the submission can be put no higher), that does not carry with it the implication that the Commonwealth has power to legislate with respect to the matter. There are many matters which may be said to affect the national interest - matters such as education, health, the prevention and punishment of crime - which are not the subject of Commonwealth legislative power and are consequently within the residual powers of the States. Whatever inherent legislative powers the Commonwealth may have, if any, they do not, in my view, extend to the matters dealt with by the World Heritage Properties Conservation Act. I agree with what was said by Gibbs J. in Victoria v. The Commonwealth and Hayden, (supra) at p. 378:
"The legislative power that is said to be incidental to the exercise by the Commonwealth of the functions of a national government does not enable the Parliament to legislate with respect to anything that it regards as of national interest and concern; the growth of the Commonwealth to nationhood did not have the effect of destroying the distribution of powers carefully effected by the Constitution."
Conclusion (at p573)

76. It will be apparent from what I have written that I regard s. 69 of the National Parks and Wildlife Conservation Act, to the extent that is authorizes the World Heritage (Western Tasmania Wilderness) Regulations, as invalid. It follows that, in my view, those regulations are also invalid. It will also be apparent that I am of the view that each of ss. 9, 10 and 11 of the World Heritage Properties Conservation Act is beyond power and invalid. The operation of ss. 9 (save in so far as it applies pursuant to s. 6(1), 10 and 11 is dependent upon proclamations made under ss. 6, 7 and 8 of the Act and I also regard the latter sections (save for s. 6(1) and the proclamations made under them as invalid. (at p573)

77. It follows as a consequence that in my view the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) is a valid enactment. (at p573)

78. These conclusions make it unnecessary for me to consider the submissions made in relation to the acquisition of property on just terms, the abridgement of the right to use the waters of rivers or the interference with State legislative or executive functions or with prerogative powers. It is also unnecessary for me to answer specifically the questions asked in each action. I would answer those questions in accordance with the views which I have expressed. (at p573)

Orders

ACTIONS No. C6 OF 1983 COMMONWEALTH v. TASMA- NIA AND NO. C8 OF 1983 ATTORNEY-GENERAL (TAS.) v. COMMONWEALTH
Question:
1. Is Section 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;
(b) the making of the World Heritage (Western Tasmania Wilderness) Regulations? Answer: 1. (a) Yes
(b) No.

Question:
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.

Question: 3. If no to question 2, are the said Regulations or any of them invalid? Answer: Yes, they are all invalid.

Question:
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: Unnecessary to answer.

Question:
5. If no to question 3, is the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) valid?
Answer: Unnecessary to answer in these proceedings.

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

Answer: Not answered.

ACTION NO. C12 OF 1983 (COMMONWEALTH v. TASMANIA) Question:
1. Are any of the provisions of
(a) sections 6 and 9
(b) sections 7 and 10 (c) sections 8 and 11 (d) section 17 of the World Heritage Properties Conservation Act valid?
Answer:
1. (a) (i) Subsections (1), (2)(b) and (3) of s. 6 are valid. It is unnecessary to determine the validity of the other paragraphs of s. 6(2).
(ii) Section 9(1)(h) is valid. The remainder of s. 9(1) and s. 9(2) are invalid. It is unnecessary to determine the validity of subsections (3) and (4) of s. 9. 1. (b) (i) Section 7 is valid.
(ii) Subsections (1) and (4) of s. 10 are valid. It is unnecessary to determine the validity of subsections (2) and (3) of s. 10, independently of their application for the purposes of s. 10(4).
1. (c) Sections 8 and 11 are invalid.
1. (d) Not answered.

Question:
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.

Question:
3. If no to question 2, are:
(a) the Regulations
(b) the Proclamations
or any of them invalid and if so which?
Answer: The Regulations are invalid to the extent to which they are made pursuant to ss. 8 and 11. The Proclamations made pursuant to s. 8 are invalid. Otherwise, No.

Question:
4. If yes to question 2, which of the allegations are necessary to be determined in order to enable a decision as to the validity or invalidity of the said Act, Regulations or Proclamations to be made?
Answer:Does not arise.

Question:
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:
5. (a) Yes.
(b) Yes.

Question:
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 Commonwealth Minister consents.

Question:
7. If no to question 6 must the second defendant pursuant to section 15B of the Hydro-Electric Commission Act (Tas.) direct the third defendant in writing to cease to construct the development specified in Schedule 1 to the Gordon River Hydro-Electric Power Development Act 1982 (Tas.)?
Answer: Not answered.

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