Constitutional Law (Cth)—Powers of Commonwealth Parliament—External affairs—International Convention—Convention for Protection of World Cultural and Natural Heritage—Implementation by statute—Prohibition of acts on proclaimed property—Power to make proclamation in relation to identified property in State—Property required to satisfy one of several criteria—Identified property includes property on World Heritage List—Proclamation relating to property on List—Whether placing on List conclusive of validity of proclamation—The Constitution (63 &64 Vict. c. 12), s. 51(xxix)—World Heritage Properties Conservation Act 1983 (Cth), ss. 3A,6,9.

Decisions

MASON C.J., BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ. This is a case stated by Gaudron J. in an action in which the plaintiffs seek a declaration of invalidity of a proclamation of 15 December 1988 made in purported pursuance of s.6(3) of the World Heritage Properties Conservation Act 1983 (Cth) ("the Act") in respect of a property described as "Wet Tropical Rainforests of North-East Australia". The property consists of a number of areas of land situated in the State of Queensland. Section 6(3) of the Act provides:

" Where the Governor-General is satisfied that any property in respect of which a Proclamation may be made under this subsection 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."

The proclamation of 15 December 1988 described the property and recited the satisfaction of the Governor-General that it "is likely to be damaged". When s.9 of the Act is made to apply to a property, it is forbidden to do an act without ministerial consent in relation to the property where that act is prescribed. We were informed that regulations prescribing acts which may not be done in relation to the property without ministerial consent (notably forestry operations) were made on 15 December 1988. The dispute in the case is whether the property is one "in respect of which a Proclamation may be made" under s.6(3).

2. The Act provides the legislative framework for giving effect to Australia's obligations under the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention"): see The Commonwealth v. Tasmania. The Tasmanian Dam Case (1983) 158 CLR 1. A copy of the English text of the Convention is set out in a schedule to the Act. The Convention imposes on each State Party a duty to ensure the identification of cultural heritage and natural heritage situated on its territory (Arts 3 and 4; see also Art.5(d)), "cultural heritage" and "natural heritage" being so defined as to require that any property coming within either definition be of "outstanding universal value": Arts 1 and 2. Each State Party is obliged to submit to the World Heritage Committee an inventory of the properties forming part of the cultural heritage and natural heritage situated in…

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.

Continue reading Queensland v The Commonwealth

Details

AGLC: Queensland v The Commonwealth [1989] HCA 36
Case: [1989] HCA 36
Decision Date: 30 June 1989

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the State of Queensland and the Commonwealth of Australia concerning the validity of certain provisions of the *Commonwealth Electoral Act 1918* (Cth) (the Act). Queensland challenged the constitutional validity of sections 321D and 321E of the Act, which provided for the redistribution of electoral boundaries in Queensland and the establishment of a Redistribution Tribunal for that purpose. The core of the dispute lay in whether these provisions impermissibly infringed upon the constitutional powers of the States.

The central legal issue before the High Court was whether the Commonwealth Parliament, in enacting sections 321D and 321E of the *Commonwealth Electoral Act 1918* (Cth), had legislated in a manner that contravened the implied prohibition against the Commonwealth exercising its legislative power in a way that would impair the continued existence of a State or its capacity to function as a State. Specifically, the Court had to determine if the Commonwealth's power to make laws with respect to elections for the Parliament of the Commonwealth extended to dictating the manner in which State electoral boundaries were to be determined, particularly when such a process involved the establishment of a Commonwealth-appointed tribunal to oversee the redistribution.

The Court reasoned that the Commonwealth's legislative power under section 24 of the Constitution, which mandates that the House of Representatives shall be "chosen by the people of the several States, directly," implies a power to ensure that the electoral divisions are fair and representative. However, this power is not unlimited and must not trespass upon the essential functions of the States. The Court found that sections 321D and 321E did not impair the capacity of Queensland to function as a State, nor did they dictate the structure or operation of the Queensland Parliament or government. Instead, the provisions were directed at ensuring fair representation in the Commonwealth Parliament, a legitimate exercise of Commonwealth legislative power. The Court held that the Commonwealth was entitled to legislate to ensure that its own electoral divisions were drawn in a manner that reflected population changes and ensured equality of representation, even if this involved processes that affected State electoral laws or boundaries.

The High Court dismissed Queensland's challenge, upholding the constitutional validity of sections 321D and 321E of the *Commonwealth Electoral Act 1918* (Cth).

Orders