Richardson v Forestry Commission

[1988] HCA 10

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

RICHARDSON v. FORESTRY COMMISSION

(1988) 164 CLR 261

10 March 1988

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of Commonwealth Parliament—External affairs—International Convention—Convention for Protection of the World Cultural and Natural Heritage—Commonwealth Act establishing commission to inquire whether area in Tasmania appropriate for inclusion in World Heritage List—Prohibition on doing acts likely to affect area during currency of inquiry—Validity—Whether discrimination against Tasmania—The Constitution (63 and 64 Vict. c. 12), s. 51 (xxix)—World Heritage Properties Conservation Act 1983 (Cth)—Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth).

Decisions

MASON C.J. AND BRENNAN J. Part II (ss.7-15 inclusive) of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) ("the Act") makes provision for the establishment of a Commission of Inquiry into the "protected area", being the Lemonthyme area and the Southern Forests area in Tasmania, other than any part which is excluded (s.3), with a view to ascertaining, amongst other things, whether any part of the area is, or contributes to, a world heritage area. Part III (ss.16-19 inclusive) provides for the interim protection of the protected area during the "interim protection period", an expression which is defined in s.3 by reference to another defined expression, the "inquiry period", to which we shall refer subsequently.

2. In this action the plaintiff, who is the federal Minister for the Environment and the Arts and as such is responsible for the administration of the Act, seeks to enforce the provisions of s.16(1) and (2) of the Act which prohibit, except with the consent in writing of the plaintiff, the doing of certain acts in the protected area during the interim protection period. The defendants in the action are the Forestry Commission, which is the statutory authority created by the Forestry Act 1920 (Tas.) having control and management of forest policy and State forest timber in Tasmania, and Gunns Kilndried Timber Industries Limited, which carries on business as a harvester and miller of timber in Tasmania. On 3 September 1987 Mason C.J. granted interlocutory injunctions restraining the defendants until the hearing and determination of the action from cutting down and removing any tree or constructing any road or vehicular track and from permitting, authorizing, directing or ordering any person to do any such act in the protected area during the interim protection period: (1987) 61 ALJR 528; 73 ALR 589.

3. The Court is now required to consider two questions which Mason C.J. reserved, on 30 July 1987, for the consideration of the Full Court. The first question is: "To what extent, if any, is the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) invalid?" The parties are agreed that the statement of facts contained in Mason C.J.'s judgment delivered when the interlocutory injunctions were granted, except in so far as it deals with disputed facts, may be referred to for the purpose of determining the question of validity.

4. The plaintiff's case is that the Act is valid as an exercise of the legislative power with respect to external affairs (s.51(xxix.) of the Constitution), being an implementation of the Convention for the Protection of the World Cultural and National Heritage ("the Convention") to which Australia is a party. The Parliament has by the World Heritage Properties Conservation Act 1983 (Cth), adopted and given effect to the Convention. The thrust of the defendants' case is that the Act is invalid to the extent to which it prohibits the doing of acts in the protected area during the interim protection period. The defendants submit that ss.16 and 18 of the Act are beyond power on the ground that they go beyond any legitimate implementation of the Convention.

5. Section 4 states that the

"... object of this Act is to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention, in particular the obligations to:

(a) identify and delineate the natural heritage and cultural heritage; and

(b) take appropriate measures to protect and conserve that heritage."

The Lemonthyme and Southern Forests areas are situated in fairly close proximity and to the east of the existing world heritage area in western Tasmania, known as the Western Tasmanian Wilderness National Parks, covering 698,200 hectares, which in 1983 was included in the World Heritage List maintained pursuant to Art.11(2) of the Convention. The Lemonthyme area consists of 14,300 hectares approximately and the Southern Forests area 269,000 hectares approximately. Together they represent about 4.5 per cent of Tasmania's land surface. The western boundary of the Lemonthyme area is approximately 50 km. long and is the eastern boundary of the world heritage area. The western boundary of the Southern Forests area is approximately 320 km. long and is, for 220 km. of its length, the eastern boundary of the world heritage area. The northern portion of the Southern Forests area is separated from the world heritage area by State forest not within the protected area, Lake Gordon and the South West Conservation Area. The protected area is largely wilderness in which forestry operations are carried on. A large part of the area is subject to Tasmanian legislation which grants or authorizes the grant of rights and licences for forestry operations. Apart from forestry operations it seems that the only significant activities conducted in the area are grazing operations undertaken on 155 hectares of land in private ownership in the Lemonthyme area and 80 hectares privately owned in the Southern Forests area.

6. Section 7(1) provided for the appointment of the Commission as soon as practicable after the commencement of the Act on 8 May 1987. The Commission has been appointed and is conducting its inquiry. The Commission is required to report the results of its inquiry to the Minister before the end of the inquiry period (s.8(4)). The inquiry period is defined as the period of one year after 8 May 1987 (s.3). The principal matters into which the Commission is required, by s.8(1)(a) and (b), to report are:

(a) whether there are any qualifying areas;

(b) where there are qualifying areas:

(i) whether there are, within Tasmania outside the qualifying areas and national estate areas, alternative forestry resources capable of exploitation without detriment to the Tasmanian forestry industry, and which it would be environmentally and economically prudent and feasible to exploit;

(ii) where there are not - whether there are within Tasmania (including national estate areas other than nominated world heritage areas) outside the qualifying areas, alternative forestry resources capable of exploitation without detriment to the Tasmanian forestry industry; and

(iii) where there are not - which of the means of exploiting the forestry resources of Tasmania (including the qualifying areas but not including any nominated world heritage areas) without causing any detriment to the Tasmanian forestry industry will cause least damage to the qualifying areas.

There are other related matters into which the Commission is required to inquire (s.8(1)(c), (d) and (e)). The Commission is to give priority to identifying any part or parts of the Lemonthyme and Southern Forests areas that are definitely not qualifying areas and to report to the Minister as soon as practicable the identification of any such part or parts, specifying the area concerned (s.8(5)).

7. The expression "qualifying area" is defined by s.3 to mean:

"... so much of any area that is:

(a) wholly or partly within the Lemonthyme area or the Southern Forests area; and

(b) a world heritage area or an area that contributes to the integrity or values of:

(i) a world heritage area that is wholly or partly within the Lemonthyme area or the Southern Forests area; or

(ii) a nominated world heritage area ..."

8. Section 3 defines a number of expressions which appear in the Act. Thus, "nominated world heritage area" means "any area of Tasmania that the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee ... as suitable for inclusion in the World Heritage List ...". "World heritage area" means "an area that forms part of the cultural heritage or the natural heritage". The expressions "cultural heritage" and "natural heritage" bear the same meanings as they have in the Convention.

9. At this point it is convenient to refer to the provisions of the Convention. The object of the Convention, as stated by the ninth recital, is to establish:

"... an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organized on a permanent basis and in accordance with modern scientific methods".

Articles 3 and 4 of the Convention provide:

"3. It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above.

...

4. Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and

transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation ..."

Article 5(d) provides:

"5. To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:

...

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage ..."

10. The "cultural heritage" as defined by Art.1 includes under the heading "monuments": "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". The "cultural heritage" as defined also includes under the heading "sites": "works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view".

11. The "natural heritage" as defined by Art.2 embraces 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."

The thrust of these definitions is to emphasize that, in order to constitute part of the world heritage, a property must possess characteristics of outstanding universal value. We use the expressions "world heritage" and "heritage" to signify properties which collectively fall within the cultural and natural heritage as so defined.

12. The defendants do not dispute that inquiry is integral to the process of identification and delineation. Indeed, the defendants acknowledge the validity of Pt II of the Act. The argument is that Pt II goes beyond identification of the world heritage in that it authorizes the Commission to inquire into the forestry industry in Tasmania and the availability of forest resources in the State. This argument may be disposed of quite shortly. The scope of the inquiry which the Commission is undertaking is designed to inform the Executive Government so that it may determine the course which it is to take with respect to the areas in question, having regard to its obligations under the Convention. As will appear hereafter, the Convention permits the State in whose territory part of the world heritage is situated to take into account economic and other factors in deciding how it will discharge the duty imposed upon it by the Convention. Part II authorizes the Commission to inquire into various matters relevant to the Government's making an informed decision as to how it will discharge this duty.

13. What the defendants dispute is the validity of the regime of protection for which Pt III provides. This regime centres on s.16, which provides:

"(1) Except with the consent in writing of the Minister, it is unlawful for a person, whether

personally or through a servant or agent, to do any of the following acts during the interim protection period:

(a) for the purposes of, or in the course of carrying out, forestry operations, to kill,
cut down or damage a tree in, or remove a tree or a part of a tree from, the protected area;

(b) to construct or establish a road or vehicular track within the protected area;

(c) to carry out any excavation works within the protected area;

(d) to do any other act prescribed for the purposes of this paragraph, being an act

capable of adversely affecting the protected area.

(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether

personally or through a servant or agent, during the interim protection period to permit, authorise, direct or order or to purport to permit, authorise, direct or order any person to do an act that is unlawful under subsection (1).

(3) Except with the consent of the Minister, it is unlawful for a person who is the owner or
occupier of any part of the protected area to fail to take reasonable steps to prevent the doing within that part of the protected area of any act that is unlawful under subsection (1)."

The section needs to be read with the definition of "interim protection period". This expression is defined by s.3 to mean:

"... the period commencing at the commencement of the inquiry period and ending at the end of the forty-second day after:

(a) where paragraph (b) does not apply - the end of the inquiry period; or

(b) where, before the last day of the inquiry period, notice of the receipt by the Minister of the final report is published in the Gazette under subparagraph 20(a)(ii) - the day on which that notice is published."

14. Section 16 is linked to s.18 which provides:

"(1) In determining whether or not to give a consent under section 16, the Minister shall have regard only to Australia's obligations under the Convention.

(2) A consent given by the Minister under section 16 may relate to:

(a) a particular act or particular acts or a articular class or particular classes of acts; or

(b) a particular person or particular persons or a particular class or particular classes of persons."

15. Jurisdiction is conferred on the High Court or the Federal Court to grant an injunction to restrain the doing of an act that is unlawful under s.16 (s.17(1)). An injunction may be granted (a) whether or not it appears to the Court that the person intends to do again, or to continue to do, an act of that kind; (b) whether or not the person has previously done an act of that kind; or (c) whether or not there is an imminent danger of damage to the protected area if the person does an act of that kind (s.17(3)).

16. Section 19(1) confers a right to statutory compensation. The sub-section is in these terms:

"Where:

(a) a person refrains from doing an act, being an act of a kind made unlawful by subsection 16(1), by reason only that:

(i) the act is made unlawful by that subsection; or

(ii) an injunction or interim injunction is granted under section 17 restraining the person from doing the act; and

(b) because the person refrains from doing the act, the person suffers loss or damage;

the Commonwealth is liable to pay compensation to the person in respect of the loss or damage."

Compensation is payable in other circumstances as well: s.19(2) and (3). Failing agreement compensation is to be determined by the Federal Court: s.19(4).

17. The defendants submit that, on its true construction, the Convention does not impose any obligations on Australia with respect to the Lemonthyme and Southern Forests areas before Australia accepts that the land has world heritage values or until the land is entered on the World Heritage List. The defendants read the opening words of Art.3, "It is for each State ... to identify and delineate the different properties situated on its territory", not as imposing an obligation, but as asserting that it is the prerogative or the province of the State to take the action described. This view of Art.3 is, so the argument runs, reinforced by Art.11(3) which states "The inclusion of a property in the World Heritage List requires the consent of the State concerned".

18. This submission fails to take sufficient account of the nature of the obligations imposed by the Convention, especially the obligations imposed on each State with respect to the cultural and natural heritage in its territory. In The Commonwealth v. Tasmania ("the Tasmanian Dam Case") (1983) 158 CLR 1, the Court held that the external affairs power enables the Parliament of the Commonwealth to give effect to the Convention as an international treaty to which Australia is a party. The majority of the Court (Mason, Murphy, Brennan and Deane JJ.) considered that, when Parliament exercises the external affairs power so as to carry into effect or give effect to such a treaty, it is for Parliament to choose the means by which this is to be achieved, provided at any rate that the means chosen are capable of being reasonably considered appropriate and adapted to that end (pp.130-131, 172, 232, 259). The majority expressly recognized that the power was not limited to the implementation of obligations imposed on Australia by a treaty which Australia is bound to implement (pp.129-130, 171-172, 177, 226, 258-259).

19. However, in that case the Court held that the relevant legislation implemented obligations cast upon Australia by the Convention, thereby rejecting the view put forward by the defendants that Arts 3, 4 and 5 amounted to no more than a statement of general political accord which left it open to each State to determine its course of action concerning the world heritage. Article 6(1), whilst respecting the sovereignty of the States on whose territory the cultural and natural heritage is situated, and "without prejudice to property rights provided by national legislation", makes the point that "such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate" (our emphasis). Within the framework of this general duty the Convention imposes particular duties on each State with respect to the world heritage on its territory. Thus Art.4 involves each State in acknowledging that the duty of ensuring the identification, protection, conservation and presentation of the world heritage situated on its territory belongs primarily to that State. And Art.5, with a view to ensuring the protection, conservation and presentation of the heritage, requires each State to take appropriate legal and other measures necessary to bring this about, making specific mention in par.(d) of the identification of the heritage. Viewed in this setting, Art.3 does not qualify the duty imposed on each State with respect to the heritage on its territory. Rather it reinforces the imposition of that duty by making it plain that in the matter of identification and delineation the obligation rests exclusively, not primarily, with that State. The terms of Art.3, together with the second sentence of Art.4 and the qualifications in the opening words of Art.5 are entirely consistent with the acknowledgment of State sovereignty in Art.6 and with the recognition that each State, in giving effect to the obligations imposed by the Convention, with respect to the heritage situated on its territory will naturally have to take account of competing considerations, economic and otherwise. Thus though each State has a duty to identify and delineate the heritage in its territory, the performance of this duty will depend in many respects on the judgment of that State. The reservation with respect to property rights is designed to ensure that the operation of the Convention does not in itself derogate from property rights under national laws, especially in countries where adherence automatically results in the Convention becoming part of the law of the land.

20. What we have said so far is not necessarily fatal to the defendants' principal submission that there is no obligation to protect a particular property unless and until Australia identifies and delineates it as part of the heritage. But it is significant, as the ninth recital and the opening words of Art.5 so clearly indicate, that the object of the Convention is to protect that heritage. In this setting identification is not an obligation independent and distinct from the obligation to ensure protection. Identification is an element in the duty to ensure protection, though the responsibility to identify rests solely with the particular State. Identification and for that matter delineation contribute to the attainment of the ultimate object which is protection of the heritage; indeed, they are the means of achieving that object. So interpreted, the Convention does not sustain the view that the duty to ensure protection does not arise or attach to land until the State identifies and delineates that land as part of the heritage.

21. This is not to say that a failure on the part of a State to protect land, which is ultimately identified as part of the heritage, pending that identification is a breach of duty capable of enforcement. It is for each State to determine what it will do by way of protecting a particular property pending resolution of its status as part of the heritage. But the taking of action by a State to protect or conserve a particular property in its territory pending resolution of the status of that property as part of the heritage is to carry out and give effect to the Convention because the taking of the action is incidental to the State's duty to ensure protection of the heritage and to the attainment of the object of the Convention. Granted ultimate identification of the property as part of the heritage, the absence of such action by way of interim protection in the meantime would expose the property to the possibility of irreparable damage.

22. The taking of action by way of interim protection pursuant to the external affairs power, for example, by the enactment of legislation prohibiting destruction of, or damage to, particular property, pending a determination of its status as a property to be nominated for inclusion in the World Heritage List may be supported as action which can reasonably be considered appropriate and adapted to the attainment of the object of the Convention, namely the protection of the heritage. However, the defendants challenge the legitimacy of this action on the footing that there is no basis, or no reasonable basis, for concluding that the land in question might constitute part of the heritage. Whether there is such a basis in the present case is a question which we leave for later consideration because it is convenient now to deal with other aspects of the defendants' challenge to Pt III of the Act.

23. The defendants submit that the legislative scheme in Pt III is not in conformity with Australia's obligations under the Convention or lacks the necessary proportionality to those obligations. They point to that part of the decision in the Tasmanian Dam Case whereby it was declared that s.9(1)(a) to (g) of the World Heritage Properties Conservation Act was invalid and particularly to the reasons given by Brennan and Deane JJ. for reaching that conclusion. According to their Honours, those provisions generally prohibited the kinds of acts therein specified whenever done on any property to which the prohibitions were expressed to apply. As it was impossible to conclude that these prohibitions, in their application to all such properties at all times, would contribute to the protection and conservation of those properties, the provisions were too wide. They were not saved by the limitation placed by s.13 on the Minister's discretion to grant or refuse written consent to the doing of an act otherwise prohibited. Section 13 did not restrict the operation of the provisions to a faithful pursuit of the objects of the Convention. In this respect there was a lack of reasonable proportionality between the provisions of s.9(1)(a) to (g) and the purpose of protecting and conserving the relevant property. See the Tasmanian Dam Case, at pp.236-237, 266-267.

24. The defendants make a similar attack on ss.16 and 18. They make the point that s.16(1)(a) is directed against forestry operations rather than damage howsoever caused. No doubt this aspect of s.16 is explicable by reference to the fact that forestry operations present the principal possibility of damage to the character of the area in question - a consideration which tells in favour of, not against, validity - and to the circumstance that the area is the subject of existing State legislative regulation. The Forestry Act 1920 (Tas.) prohibits the cutting and removal of timber in State forests otherwise than in accordance with that Act. And, as already mentioned, a large part of the area is, or may be made, the subject of statutory rights or licences for forestry operations.

25. No doubt some of the acts prohibited by s.16(1)(a), (b) and (c) may be so trivial that they do not present a significant risk of real impairment to the world heritage characteristics of the land in question. Nonetheless the class of acts prohibited, namely tree-felling and removal in the course of forestry operation, road and track construction and excavation, are generally speaking acts involving a potential risk of injury to any qualifying areas which may be in the Lemonthyme and Southern Forests areas. It is therefore appropriate to single them out as objects of prohibition unless the plaintiff consents in writing to them. We should have thought that only by such a means of regulation is it possible to ensure protection of the land in conformity with the Convention. But it is not necessary to go so far. It is enough to say that, subject to the question which we have reserved for later consideration, the provisions are a means for effectuating a desired end which is within power, namely ensuring protection of land which may be identified as part of the world heritage. We refer to the remarks of Kitto J. in Herald and Weekly Times Ltd. v. The Commonwealth (1966) 115 CLR 418, at p 437.

26. The prohibition in s.16(1)(a) affects forestry operations planned in the interim protection period covering an area of 145 hectares in the Lemonthyme area and 151 hectares in the Southern Forests area, together with roadworks associated with planned logging operations. The prohibition contained in s.16(1)(a) would have no application to grazing activities. The remaining prohibitions in s.16(1)(b) are capable of applying to acts done in the course of such activities subject of course to the plaintiff's power to consent.

27. The defendants submit that the exercise of the power to grant or refuse consent in writing under s.18 is not reviewable. The ambit of the discretion is limited by sub-s.(1), which requires the plaintiff to "have regard only to Australia's obligations under the Convention". Nevertheless the defendants contend that, on its true construction, s.18 makes the plaintiff's opinion the decisive consideration. If the section is so framed that the relationship between the act for which consent is sought and the attainment of the object of the Convention would depend on the opinion of the plaintiff as to fact or law, the section cannot be upheld: Hughes and Vale Pty. Ltd. v. The State of New South Wales (No. 2) (1955) 93 CLR 127, at pp 165-166; MacCormick v. Federal Commissioner of Taxation (1984) 158 CLR 622, at pp 639-640, 658. That is not how we read the sub-section. It should be understood as disentitling the plaintiff to refuse consent except when refusal is necessary for the protection of the heritage or otherwise for the satisfaction of Australia's obligations under the Convention (see Art.5(d)). The plaintiff must form an opinion in order to make his decision. So to read the sub-section is consistent both with its plain meaning and with the principle of interpretation which requires a statute to be read in such a way that will preserve its validity. As Dixon J. observed in Attorney-General (Vict.) v. The Commonwealth ("the Pharmaceutical Benefits Case") (1945) 71 CLR 237, at p 267:

"In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognized implications of the Constitution will allow. We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them." (our emphasis)

Construed in this way, s.18 merely empowers the plaintiff to refuse consent when refusal to relax the statutory prohibition against the doing of the proposed act is necessary to the attainment of the object of the Convention. The section does not enable the plaintiff to refuse consent on general environmental grounds, for example, in order to preserve the wilderness characteristics of an area, as distinct from the world heritage characteristics of that area, that is characteristics having outstanding universal value within the meaning of the definitions in Arts 1 and 2 of the Convention. The Minister's decision will be subject to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under the general law, for example, by way of prerogative writ or declaratory relief.

28. The defendants then submit that Pt III violates the implied prohibition upon discrimination against a State. The argument is that a law which singles out for protection a particular area of a particular State in purported pursuance of an international obligation applying to the whole of Australia, in the absence of any special threat to that particular area is a discrimination against that State. It is pointed out that no such regime as Pt III protects other parts of Australia which are said to be under threat, notably areas of rainforest in Queensland. The short answer to this submission is that the defendants have not established any foundation for a case of invalid discrimination in the sense of a differential treatment of Tasmania which is not occasioned by the subject to which the law relates. The obligation of protection necessarily falls to be discharged with respect to particular properties and a law which is calculated merely to discharge Australia's treaty obligations with respect to a particular property does not invalidly discriminate against the State in whose territory the property is situated. In any event, there is no evidence to suggest that there are areas in other States which have equal or stronger claims to protection under the Convention.

29. In relation to validity it remains for us to consider the defendants' submission that there is no sufficient basis for concluding that the area has potential world heritage characteristics and for subjecting the entirety of the protected area to the regime of protection during the interim protection period. It has been said that the Court must be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for legislation: Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at p 222; Hughes and Vale (No. 2), at p 165; Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 CLR 280, at p 307, notwithstanding that it is "(h)ighly inconvenient" for the Court to be engaged in making factual inquiries, as Dixon C.J. noted in Commonwealth Freighters, at p 292 and Breen v. Sneddon (1961) 106 CLR 406, at p 411.

30. Here, however, we are not concerned with the making of a conclusive finding of constitutional facts necessary to support the exercise of a legislative power with respect to a head of power. Rather we are concerned to ascertain whether there is a basis for invalidating the legislative judgment that the area in question may possess world heritage characteristics which justify on an interim footing the freeze on activities for which Pt III provides. The defendants' case challenging the legislative judgment rests largely on the fact that Pt III of the Act imposes a freeze on an area constituting 4.5 per cent of Tasmania's land surface, there being an absence of findings or evidence to justify a conclusion that the whole of the area, as distinct from particular locations within it, possesses or may possess world heritage characteristics. Mason C.J.'s judgment on the interlocutory application sets out what is known of the area in terms of characteristics that may be relevant to world heritage values: (1987) 61 ALJR 528; 73 ALR 589. Broadly speaking, that evidence indicates that there are particular stands of rare timber, aboriginal cave dwellings and archaeological sites. It also indicates that the area, especially the Southern Forests area, which is less well known, may possess important world heritage characteristics, particularly cave dwellings and archaeological sites, as yet unidentified. The fact is that the area in general has not yet been closely examined with a view to determining its eligibility for entry on the World Heritage List, this being the reason for establishing the present inquiry and imposing the freeze during the interim protection period.

31. Moreover, in identifying and delineating any property as part of the world heritage it is necessary to allow for the protection of an adequate "buffer zone". Paragraph 14 of the World Heritage Committee's Operational Guidelines for the Implementation of the World Heritage Convention defines a "buffer zone" as "an area surrounding the property which has an essential influence on the physical state of the property and/or on the way in which the property is perceived". The plaintiff's case is that the delineation of any relevant part of the area will involve the identification of a buffer zone, not only in relation to world heritage characteristics of the area, but also in relation to the existing world heritage area. The plaintiff claims that in identifying the buffer zone it is necessary to take account of the need to protect world heritage characteristics from the added risks of fire and the introduction of exotic flora which may result from commercial operations in the area. How real these risks are may be a matter of conjecture.

32. Paragraph 14 also makes the point that "the area constituting the buffer zone should be determined in each case through technical studies". The Guidelines recognize that the identification and delineation of a property require investigation, including technical studies, and this inevitably takes time.

33. The matters to which we have referred provide a basis for a legislative judgment that substantial parts of the area, the location of which cannot be identified at this time with any certainty, may conceivably possess world heritage characteristics which should be protected. If part of an area might possess world heritage characteristics and if that part might be damaged unless the area is protected by legislative measures appropriate to preserve that part, a failure to take those measures involves a risk that the Convention obligation will not be discharged. It is only by taking those measures that the risk of failing to discharge the Convention obligation can be avoided. As the external affairs power is a plenary power, it extends to support a law calculated to discharge not only Australia's known obligations but also Australia's reasonably apprehended obligations. The power extends to support a law required to discharge a treaty obligation which is known to exist and also a law which is required to ensure the discharge of a treaty obligation which is reasonably apprehended to exist. In making provision for the establishment of the Commission of Inquiry and for the regime of interim protection of the protected area, Parliament has made a legislative judgment about the situation and the Convention obligation that may be proved to exist. It is not for us to impugn the bona fides of that judgment. It is enough that the legislative judgment could reasonably be made or that there is a reasonable basis for making it. Particularly is this so when the ultimate decision to be made by the Executive Government, whether the area, or parts of it, should be proposed for inclusion in the World Heritage List, involves a calculus of factors, including factors which are cultural, economic and political. Of course, if the legislative judgment cannot reasonably be supported, the Court will not hesitate to declare that it is invalid as an excess or abuse of power: see Gerhardy v. Brown (1985) 159 CLR 70, at p 139.

34. Consequently we would answer the first question by declaring that the Act is valid in its entirety.

35. The second question which Mason C.J. reserved for the consideration of the Full Court is:

"In point of law is any, and if so, which, of the allegations made

(i) in paragraph 17 of the Defence of the First Defendant

(ii) in paragraph 15 of the Defence of the Second Defendant

(iii)in paragraph 16 of the Defence of the Second Defendant,

an answer to the relief claimed by the Plaintiff against the respective Defendants?"

36. Paragraph 17 of the defence of the first defendant pleads "The relief claimed against it is not appropriate relief in all the circumstances". The first defendant furnished particulars of par.17 of which the first defendant now relies only on the following:

"The First Defendant further says that the granting of relief claimed is inappropriate in that it will, in the manner sought, cause economic hardship to the First Defendant and to the economy of the State of Tasmania generally, whereby it would be contrary to the public interest."

37. The second defendant now relies only on par.15(b), (d), (e) and (f) of its defence. Paragraph 15(b) pleads the making by the Commonwealth of an unambiguous promise or assurance which was intended to affect the legal relations between the parties and the second defendant and has acted upon the promise or assurance, thereby altering its position to its detriment. Paragraphs 15(d), (e) and (f) plead matters similar to the matters pleaded in par.17 of the defence of the first defendant.

38. The defendants submit that the determination of the second question reserved should be left to the trial judge on the footing that the defences pleaded are discretionary defences. The plaintiff opposes this course on the ground that under s.17 a court, in deciding whether or not to grant an injunction, cannot take account of the matters pleaded on a discretionary basis.

39. The matters pleaded in par.17 of the first defendant's defence cannot constitute a defence to the action. As to par.15(b) of the second defendant's defence, it is not claimed that the promise or assurance was given after the Act came into operation. And in any event the giving of the promise or assurance could not amount to a defence.

40. It is not easy to envisage situations in which the second defendant's discretionary defences (pleaded in par.15 (d), (e) and (f)) will be an effective answer to the action. Nonetheless there is the difficulty of dealing with the matter in the abstract in the absence of agreed facts. In these circumstances we would not answer the question so far as it relates to these paragraphs.

41. In the result we would answer the questions reserved as follows:

1. The Act is valid.

2. (i) paragraph 17 of the defence of the first

defendant is not an answer to the relief claimed.

(ii) paragraph 15(b) of the defence of the second defendant is not an answer to the relief claimed.

(iii) Not answered.

WILSON J. In this matter, the Chief Justice has reserved two questions for the consideration of the Full Court. The first asks to what extent, if any, is the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) ("the Act") invalid?

2. The second question involves discretionary considerations relating to injunctive relief. The defendants requested that those matters be left for determination by a single Justice in the event of the case proceeding to hearing for the grant of a final injunction. In consequence of that request the Court did not hear full argument on the question. Nevertheless, I agree that it should be dealt with in the manner proposed by the Chief Justice and Brennan J.

3. The object of the Act is described in s.4 as follows:

"4. The object of this Act is to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention, in particular the obligations to:

(a) identify and delineate the natural heritage and cultural heritage; and

(b) take appropriate measures to protect and conserve that heritage."

4. The material provisions of the Act and a description of the circumstances leading to its enactment are contained in the reasons for judgment prepared by the Chief Justice and Brennan J. and it is unnecessary to repeat them in their entirety. The reference in s.4 to "the Convention" is a reference to the Convention for the Protection of the World Cultural and Natural Heritage, the same Convention as was considered by this Court in The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1. So far as is material, the crucial questions in that case were whether in the relevant respect the Convention imposed any obligations upon Australia and, if so, whether those obligations were of such a character as to be capable of attracting the power of the Commonwealth Parliament to legislate for the peace, order and good government of the Commonwealth with respect to external affairs (Constitution, s.51(xxix)). The Court, by majority (Mason, Murphy, Brennan and Deane JJ., Gibbs C.J., Wilson and Dawson JJ. dissenting), resolved each question in the affirmative. In substance, the view of the minority Justices was that the Convention in the relevant respect was of a hortatory nature which fell short of imposing binding obligations upon Australia with respect to the cultural and natural heritage ("the world heritage") situated within its territory, but that in any event the power to legislate with respect to external affairs did not extend to the enactment of a law having only a domestic operation within Australia upon a topic lacking an international character. On the other hand, the majority decided that the Convention imposed binding obligations upon Australia with respect to the heritage within its bounds and that a law discharging those obligations was a law with respect to external affairs. Although I remain convinced of the correctness of the view I expressed in the Tasmanian Dam Case - and indeed the argument in the present case has served only to strengthen that sense of conviction - unless and until the decision is reviewed I am obliged to accept its authority. Unfortunately, this must be so, despite the serious implications that flow from the expansive interpretation of the power to legislate with respect to external affairs, an interpretation which in my opinion proceeds without regard to the context of par.(xxix) in s.51 and to the federal character of the Constitution. The wider interpretation is not one which has the support of any binding authority to be found in any decision of this Court prior to the Tasmanian Dam Case. I have referred to the serious implications of such an interpretation in Koowarta v. Bjelke-Petersen (1982) 153 CLR 168, at pp 251-252 and in the Tasmanian Dam Case, at pp 196-198. There is no point in repeating what I then wrote. The present case must be approached on the basis that the Tasmanian Dam Case established both the existence of certain obligations imposed upon Australia by the Convention and the legislative power of the Commonwealth with respect to their observance. Nevertheless, consideration will need to be given both to the precise scope of the relevant obligation and to the scope of the legislative power which is attracted by reason of it.

5. The striking feature which serves to distinguish the facts of the present case from those of the Tasmanian Dam Case is that no provision of the Act applies to any area which is known to form part of the world heritage. There is no suggestion that the provisions of the World Heritage Properties Conservation Act 1983 (Cth), which apply to property forming part of the world heritage, have any application. Indeed, the primary task of the Commission of Inquiry into the Lemonthyme and Southern Forests ("the Commission") established by the Act is to inquire into and report whether there are any qualifying areas (s.8(1)(a)). A "qualifying area" is defined to mean, in substance, so much of any area that is (a) wholly or partly within the Lemonthyme area or the Southern Forests area, and (b) is a world heritage area or an area that contributes to the integrity or values of a world heritage area (s.3). Part III of the Act deals with the interim protection of the "protected area" (s.3), being the Lemonthyme area and the Southern Forests area, other than any part of either area which is excluded from the protected area in the course of the inquiry (see the definition of "excluded area" in s.3). The following description of the protected area is taken from the judgment of the Chief Justice ((1987) 61 ALJR 528, at p.531; 73 ALR 589, at p.595) granting an interlocutory injunction restraining the defendants from doing certain acts alleged to be unlawful under the Act:

"... the Lemonthyme part of the protected area consists of 14,300 hectares approximately and the Southern Forests part 269,000 hectares approximately. Together they represent about 4.5 per cent of Tasmania's land surface. To the west of the protected area lie the Western Tasmanian Wilderness National Parks, covering 698,200 hectares. In 1983 the World Heritage Committee included this area in the World Heritage List. The western boundary of the Lemonthyme area is approximately 50 km. long and is the eastern boundary of the World Heritage Area. The western boundary of the Southern Forests area is approximately 320 km. long and is, for 220 km. of its length, the eastern boundary of the World Heritage Area. The northern portion of the Southern Forests area is separated from the World Heritage Area, by State Forest not within the protected area, Lake Gordon and the South West Conservation Area.

The protected area contains substantial areas

of State Forest. Twelve per cent of the total area of State Forest, amounting to 193,600 hectares, lies within the protected area."

The Court was informed that in excess of 200 hectares within the protected area are privately owned in fee simple.

6. The defendants, supported by the Attorney-General for the State of Queensland as an intervener, argue that the Act, in particular Part III, is invalid. A number of distinct arguments are advanced in support of that contention. First, it is submitted that, on the proper construction of the Convention, Australia is under no obligation to the international community to take measures for the protection of property which has not been identified by Australia as part of the world heritage situated within its territory. By way of answer, the Commonwealth relies on Arts 3, 4 and 5 of the Convention, in particular upon Art.5(d) which reads:

"To ensure that effective and active measures

are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:

...

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage...."

It is submitted that the interim protection of an area during the process of identification and delineation of the world heritage (Art.3) is a matter of express obligation under Art.5(d) or alternatively is a matter which is reasonably incidental to the discharge of the obligation therein to identify the heritage. I do not think that the first of these propositions can be accepted, even allowing for the relaxed concept of "obligation" to be derived from the views of the majority in the Tasmanian Dam Case (see pp.132-136, 177-178, 220-228, 261-264). However, on the authority of that case, there is no escape from the conclusion that an obligation rests upon Australia to "endeavour, in so far as possible, and as appropriate ... to take the appropriate ... measures necessary for the identification ... of" the world heritage situated within its territory. That being so, the Commonwealth is on strong ground in relying on the authority of the Tasmanian Dam Case (see pp.130, 182, 232, 259-260) for the further proposition that if and when the Commonwealth Parliament enacts legislation with the object of discharging an international obligation, the choice of means for achieving that object is for the Parliament and not for this Court so long as the law is capable of being reasonably considered to be appropriate and adapted to carrying out that object. The Parliament having established the Commission as a means of discovering whether there is located within the protected area any world heritage area or any area that contributes to the integrity or values of a world heritage area, there must be conceded to it the right to determine whether some form of interim protection of the protected area is appropriate. One may infer from s.4 of the Act an expectation, albeit undefined, that some part of the protected area will be found to contain property which is fit for nomination to the World Heritage Committee for inclusion in the World Heritage List. It is impossible to deny to the Parliament, when once it has set in train procedures designed to identify within a defined area the existence of a world heritage area, a power to take appropriate measures to ensure that a world heritage is not damaged or destroyed during the process of identification.

7. Of course, much may depend upon the protective measures that are put in place. The second submission of the defendants is that Part III of the Act is invalid because it goes beyond what is capable of being reasonably considered to be appropriate and adapted to securing the object of identifying a world heritage. It is not reasonably proportionate to the end to be achieved. Reliance is placed upon a number of considerations: the absence of any defined expectation as to the existence of a world heritage area within the protected area; the size of the protected area, constituting about 4.5 per cent of the entire land mass of Tasmania; the comprehensive nature of the actions that are declared, unless done with the consent of the Minister, to be unlawful; the imposition on owners or occupiers of land within the protected area of a positive duty to take reasonable steps to prevent the commission on that land of any act rendered unlawful by the Act; the comparatively small part of the protected area which was intended to be the scene of forestry operations; the lack of regard to property rights within the area; the character of the dispensing power reposed in the Minister by s.18(1), and the alleged unreviewability of the exercise of that power.

8. In support of this submission, an analogy is sought to be drawn by the defendants between the acts rendered unlawful by s.16(1) of the Act and the unlawful acts described in pars.(a) to (g) inclusive of s.9(1) of the World Heritage Properties Conservation Act. In the Tasmanian Dam Case, both Brennan J. and Deane J. held those paragraphs to be invalid because they lacked proportionality to the obligation, to the discharge of which they were said to be related. But the vice of those paragraphs was the breadth of their application. Brennan J., at pp.236-237, explained his view thus:

"... pars.(a) to (g) prohibit the doing of specified acts on every kind of identified property that Australia is obliged to protect and conserve. The protection and conservation of some properties may be ill-served by the imposition of such restrictions.... The fact is that protection and conservation are functions that can only be performed with respect to an individual property; those functions have to be performed according to the condition of the property at the time and with reference to any threat that may then be posed by specific dangers.... The difficulty with pars.(a) to (g) of s.9(1) is that they generally prohibit the kinds of acts therein specified whenever done on any property to which s.9 applies or may be made to apply. It is impossible to say that such provisions, in their application to all such properties at all times, would conduce to the protection and conservation of those properties. They are too wide."

His Honour then considered whether the paragraphs were saved by the Minister's power to consent in writing to the doing of the acts mentioned. In providing a negative answer his Honour concluded that the statute failed "to provide an administrative system by which the discretion conferred on the Minister might ensure that the operation of the Act faithfully pursues the purpose of protection, conservation and presentation under the Convention" (at p.237).

9. To similar effect, Deane J. said, at pp.266-267:

"The overall effect of s.3(2), s.6(2) and (3),

s.9(1) and s.13(1) is that all of the prohibitions contained in paragraphs (a) to (g) (inclusive) of s.9(1) are automatically imposed in respect of any property which is proclaimed by the Governor-General pursuant to s.6(3) regardless of their appropriateness for the purpose of protecting or conserving the property and regardless of whether any relationship at all exists between all or any of the prohibited acts and the nature and source of likely damage to the property. In these circumstances, there is a lack of any reasonable proportionality between the provisions of s.9(1)(a) to (g) and the purpose of protecting and conserving the relevant property."

10. The present Act is markedly different in several respects from the statute under consideration in the Tasmanian Dam Case. First, the range of acts declared by s.16 to be unlawful are more circumscribed. Secondly, the prohibitions apply only within the protected area. Thirdly, the Minister may, either generally or as otherwise provided by the instrument of delegation, delegate his powers under s.16: s.23. In my opinion, these considerations render the attempted analogy inapt.

11. There is no doubt as to the test which is to be applied in determining the defendants' submission on proportionality. It was stated succinctly by Barwick C.J. in Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54, at p 86:

"Whilst the choice of the legislative means by which the treaty or convention shall be implemented is for the legislative authority, it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to that end."

12. The Tasmanian Dam Case is authority for a somewhat expanded statement of the test, namely, that provided a law is capable of being reasonably considered to be appropriate and adapted to carrying out or giving effect to an object that impresses it with the character of a law with respect to external affairs, the choice of legislative means for achieving that object is for the Parliament and not for the Court.

13. The application of the test to the circumstances of this case is not without difficulty. It cannot be said to be inappropriate for the Commonwealth to establish the Commission in order to ascertain the extent of its obligation, if any, in relation to the protected area. Nor is it unreasonable to suppose that the Commission may find that some part of the protected area will satisfy the definition of cultural or natural heritage set out in the Convention. That being so, the question is whether the protective provisions contained in s.16(1) are capable of being seen as reasonably appropriate and adapted to enabling the fulfilment of Australia's obligations to identify and delineate the world heritage. The extent of the protected area is very large. The effect of Part III of the Act is that 4.5 per cent of the land area of Tasmania is for all practical purposes transferred to the control of the Commonwealth. It at once raises the question - can such a serious interference with the affairs of Tasmania be justified as appropriate means directed to the achievement of the end? If forestry operations constitute the main threat to any world heritage that might be found to exist in the protected area, as would appear from a general reading of the Act to be the case, was it reasonably necessary to extend the control over 283,300 hectares when the threat was confined, according to the evidence received by the Chief Justice in the interlocutory proceeding already referred to, to an area of approximately 300 hectares? On the other hand, there are countervailing considerations. Despite the size of the protected area, much of it is a wilderness area and the real impact of the protective provisions will be confined to the forestry operations. The protective regime is limited in duration to not later than the duration of the inquiry (which must be concluded within a period of twelve months: s.3, definition of "inquiry period") and 42 days: s.3, definition of "interim protection period". The Commission is obliged to give priority to identifying any part or parts of the protected area that are definitely not qualifying areas and to report thereon as soon as practicable: s.8(5). Within fourteen days after receiving such a report, the Minister shall arrange for notice to be published in the Gazette, specifying the area or areas identified in the report: s.20. Upon publication of the notice in the Gazette, the area or areas specified therein cease to be part of the protected area: s.3, definition of "excluded area" and "protected area". Provision is made for the payment of compensation to a person who suffers loss or damage because he refrains from doing an act made unlawful by s.16(1) or is otherwise restrained by injunction from doing the act: s.19(1). The compensation provisions extend to an owner of any part of the protected area who suffers loss or damage because another person has refrained from doing an act made unlawful by s.16(1): s.19(2). The prohibitions under s.16(1) are not absolute, being subject to the consent of the Minister: s.16(1) and s.18(1). The Minister may delegate his power to grant consent: s.23. Finally, the exercise of the Minister's power to consent or to withhold consent is subject to judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or by resort to the original jurisdiction of this Court conferred by s.75(v) of the Constitution (cf. also s.39B, Judiciary Act 1903 (Cth)).

14. When all these various matters are taken into account, it is not possible, within the constraints imposed by the Tasmanian Dam Case, to uphold the second submission of the defendants. The protective provisions fall within the range of the discretion conceded to the Parliament in carrying out the obligation which the Convention imposes upon it.

15. Finally, the defendants submit that the provisions of the Act, or alternatively the provisions of Part III, are invalid because they interfere with, curtail or impair the legislative and executive functions of the State of Tasmania and the prerogative of the Crown in right of Tasmania in relation to its lands. Reliance is placed upon Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 and Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR 192. In the course of argument, counsel for the defendants pressed the argument on the basis that the Act discriminated against Tasmania. But, however the argument is put, in my opinion it cannot succeed. It cannot be said that the Act is discriminatory, in the sense that it singles out Tasmania. The protected area, in relation to which the object of the Act is to identify the existence of world heritage areas, if any, happens to be situated within Tasmania. The Act is not directed at Tasmania in any other sense or for any other reason. If the argument is put on the basis that the Act interferes with the legislative and executive functions of a State, that in itself is not sufficient to attract the limitation on Commonwealth legislative power that is to be implied from the Constitution. A similar argument was advanced and rejected in the Tasmanian Dam Case. There, Mason J. said, at p.139:

21. To determine whether the disputed provisions of the Act are reasonably capable of being considered conducive to the purpose of the Convention it is, I think, appropriate to accept the legislative judgment that there is a possibility that the areas consist of, or contain, parts which are of world heritage significance. Certainly that judgment is borne out by the non-disputed facts as set forth in the judgment of Mason C.J. which was delivered when granting interlocutory injunctions pursuant to s.17 of the Act: (1987) 61 ALJR 528; 73 ALR 589.

22. The purpose of the Convention may briefly be described as the effective protection of the world cultural and natural heritage through measures taken by State Parties to the Convention, supported and assisted, where necessary, by other members of the international community. So much is able to be discerned from the scheme of the Convention, and in particular from Art. 7, which provides:

"For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage."

Each State Party undertakes obligations with respect to the identification, protection, conservation, presentation and transmission to future generations of the heritage in its territory, although Art. 5 provides that the active measures required of each State Party in relation to protection, conservation and presentation are those which are possible and appropriate for that country.

23. Given that it is possible that the Lemonthyme and Southern Forests areas are, or contain areas which are, of world heritage significance, and that they also contain timbered areas which are the subject of permits for forestry operations, the ascertainment of the existence and exploitability of forest resources in Tasmania (whether within or without the Lemonthyme or Southern Forests areas) cannot be said to be irrelevant to a consideration of what is possible or appropriate in the event that the areas prove to be, or contain parts, of world heritage significance. Such an inquiry is, in my opinion, capable of being viewed as conducive to the purpose of the Convention, and is capable of being so viewed notwithstanding that it proceeds contemporaneously with the inquiry as to whether or not any part (or parts) of the areas are of world heritage significance. Once it is accepted that the question of validity may be answered by reference to the purpose of the Convention and not merely by reference to whether or not the land or property to which the law applies is part of the heritage as defined in the Convention, it must be accepted, in my view, that the legislative power extends, at once, to all matters conducive to that purpose.

24. To allow that the legislative power extends, at once, to all matters conducive to the purpose of the Convention is to allow that the power extends to a law for the protection or conservation of those features which give to a property the quality that it might possess world heritage significance, at least for such time as is reasonably appropriate for the determination of that issue. If it is established that the property does have the necessary significance, legislative power extends to a law for the protection of the property for such time as is necessary for the determination of what is possible or appropriate in implementation of the Convention in relation to that property.

25. It is established by the Tasmanian Dam Case that where Parliament enacts legislation in implementation of a treaty it is for the Parliament to choose the method by which that object is achieved, provided the method chosen is appropriate and adapted to that object. So too, it seems to me, that where the Parliament enacts legislation for the purpose of bringing about a state of affairs conducive to the purpose of a treaty, it is for the Parliament to choose the method by which that object is to be achieved. However, I do not think that it states the position with sufficient accuracy to say that a law which is enacted for the purpose of bringing about a state of affairs conducive to the purpose of a treaty must be appropriate and adapted to that object.

26. It is clear from the Tasmanian Dam Case that the mere fact that Australia is party to a treaty does not engage the external affairs power so as to authorize a law on the subject covered by the treaty. The power is relevantly confined by the treaty. Mason J. put the matter thus (at p.131):

"I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject-matter of the treaty as if that subject-matter were a new and independent head of Commonwealth legislative power. The law must conform to the treaty and carry its provisions into effect."

Murphy J. said (at p.172):

"The fact that a subject becomes part of external affairs does not mean that the subject becomes, as it were, a separate, plenary head of legislative power. If the only basis upon which a subject becomes part of external affairs is a treaty, then the legislative power is confined to what may reasonably be regarded as appropriate for implementation of provisions of the treaty. ... Again, if the subject of external affairs is some other circumstance, the legislative power will extend to laws which could reasonably be regarded as appropriate for dealing with that circumstance."

Brennan J. observed (p.232):

"The scope of the legislative power is defined by the international obligation and the validity of a law made in purported pursuance of the power depends upon whether 'the law can fairly be regarded as providing a way of doing what the Commonwealth has undertaken to do; the choice of ways and means being a matter essentially for the parliament': per Menzies J. in the Second Airlines Case (1965) 113 CLR, at p 136."

Deane J. said (at p.259):

"... the law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs".

See also The King v. Burgess; Ex parte Henry (1936) 55 CLR 608, at pp 659-660; The King v. Poole; Ex parte Henry (No.2) (1939) 61 CLR 634, at p 647 and Airlines of N.S.W. Pty. Ltd. v. New South Wales (No.2) (1965) 113 CLR 54, at p 86.

27. The need for legislation which is enacted in discharge of a treaty obligation to conform to, or to be reasonably capable of being regarded as appropriate or adapted to, the treaty obligation derives not from any particular feature attaching to a treaty or treaty obligation, but rather, from the fact that the treaty obligation is the circumstance which engages the power to legislate with respect to external affairs. Where a law is enacted other than in discharge of a treaty obligation, the touchstone of validity must also be the circumstance which engages the external affairs power: that is, "(t)he law must be seen, with 'reasonable clearness', upon consideration of its operation, to be 'really, and not fancifully, colourably, or ostensibly, referable' to and explicable by the purpose or object which is said to provide its character" per Deane J., the Tasmanian Dam Case (at p.260).

28. In the present case, whether the question of legislative power be approached in terms of an obligation implicit in the Convention to take appropriate steps to protect the features which give to property the quality that it may form part of the world heritage, or whether it be approached in terms of securing a state of affairs conducive to the purposes of the Convention, at base the circumstance that engages the legislative power is that the Lemonthyme and Southern Forests areas may be (or may contain) world heritage areas. It is to that circumstance, comprehending the possibility that the areas, either in whole or in part, may lack world heritage significance, that the law must be appropriate and adapted.

29. Within the context of the Convention, a law which provides machinery to investigate and determine whether land is, or contains, a world heritage area, and which further provides for a determination of matters relevant as to what is appropriate or possible in discharging obligations arising under the Convention in relation to any land so found, is appropriate and adapted to the circumstance that the land identified in the preamble to the Act may be, or may contain, areas of world heritage significance. Accordingly, in my view, s.8 of the Act is valid.

30. Within that same context, a law which protects and conserves the qualities or features which give to the land the characteristic that it may be, or contain, a world heritage area, will also be appropriate and adapted to the circumstance which, at base, engages the power to legislate with respect to external affairs. A law which does more lacks proportionality to that circumstance, for as Deane J. observed in the Tasmanian Dam Case (at p.260), there is "(i)mplicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs ... a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it." A law, therefore, which proscribes activities which pose no threat to the qualities or features which give the land the characteristic that it may be, or may contain, a world heritage area, is not one which (in the context of the Convention) can be said to be a law with respect to external affairs.

31. In the present case no effort was made to identify the qualities or features giving the land its relevant characteristic beyond those identified in the judgment of Mason C.J. when granting interlocutory relief under the Act. Those so identified include stands of wet sclerophyll forest, a stand of timber containing King Billy pine, communities of Alpine plants, an area of Huon pine, and wilderness areas in the Southern Forests area: p.533; pp.597-598 of A.L.R. In the Lemonthyme, the identified features include areas of tall eucalypt and possibly archaeological sites. It may be accepted that forestry operations, construction of roads or vehicular tracks, or excavation works, which are rendered unlawful by s.16(1)(a), (b) and (c), constitute a threat to the features identified, if undertaken in, or in proximity to the specific areas in which they are located. However, the proscriptions apply generally, save to the extent that any area is identified as definitely not a qualifying area. They apply to areas of land in private ownership and used for grazing. They apply also to an area in which timber has been felled and to an area that has been previously cut over. There is no material which enables it to be said that each and every act proscribed by s.16(1)(a), (b) or (c) would, if done in the protected area, constitute a danger to the qualities and features which are relevant to the Lemonthyme and Southern Forests areas as areas which are possibly of world heritage significance. The fact that the areas contain grazing land and an area in which timber has been felled and an area which has been cut over suggests otherwise. In the absence of material to the contrary, s.16(1)(a), (b) and (c) must be viewed as operating to curtail activities whether or not they constitute a threat to the relevant qualities or features of the area. That is, they must be viewed as operating to protect the general environment of the area, and not merely the features which may be of outstanding universal value within the contemplation of the Convention. With s.16(1)(d) the legal criterion upon which it is posited is general environmental protection, for it renders unlawful any act "prescribed for the purposes of this paragraph, being an act capable of adversely affecting the protected area" (emphasis added). The same general environmental protection is extended by s.16(2) and (3) by rendering unlawful the actions of permitting, authorizing, directing or ordering any act which is unlawful under subsection (1) (except with the consent of the Minister) and in the case of an owner or occupier of land, the failure to take reasonable steps to prevent the doing of any act proscribed by s.16(1).

32. Because s.16 must be viewed as affording general environmental protection rather than protection of the qualities and features which may be of outstanding universal value, it is not on the material before the Court reasonably capable of being viewed as appropriate or adapted to the circumstance that the areas may be or contain areas constituting part of the world heritage. It cannot on the available material be characterized as a law with respect to external affairs. Nor, in my view, is that conclusion altered by the possibility that the proscription may be relaxed with the consent of the Minister.

33. By s.18 the Minister's consent to an act otherwise unlawful is to be given or withheld having "regard only to Australia's obligations under the Convention". The criterion for the giving or withholding of consent appears to me to lack clarity. Clearly, s.18 would require the granting of consent to an act necessary or desirable for the protection of qualities or features which give the land the characteristic that it may be or contain a world heritage area. I do not think that s.18 imports that consent shall be given unless the act threatens those qualities or features. However, even if it were to be so read, on the material before the Court, s.16 must still be viewed as operating to proscribe activities whether or not they pose a threat to the qualities or features of possible outstanding universal value at least until such time as consent is given. That is different both in legal effect and in operation from a law proscribing only activities which threaten the qualities or features which give the area the characteristic that it may be or contain a world heritage area.

34. It may be that evidence could be called to establish that the activities proscribed by one or all of paragraphs (a), (b) and (c) of s.16(1) constitute a threat or may reasonably be apprehended to constitute a threat to the features of the protected area which may be of outstanding universal value if undertaken anywhere in the protected area. Section 16(1)(d) is in a different position. It operates by reference to acts capable of adversely affecting the protected area. Even if the qualities and features which give the protected area the quality that it may be a world heritage area were present throughout the entire area - and the evidence is that they are not - proscription by reference to general environmental considerations cannot be viewed as appropriate or adapted to the protection of the features which give to the protected area the quality that it may be a world heritage area. I would, but for the fact that the majority of the Court is of the view that the Act is entirely valid, stand the matter over to enable the presentation of such further evidence as the parties may wish to put before the Court in support of the validity of s.16(1)(a), (b) and (c). That course being unnecessary, it is sufficient to answer the first question in the case stated as follows:

"Section 16(1)(d) and s.16(2) and (3) (to the extent that they operate by reference to s.16(1)(d)) are invalid. On the materials before the Court s.16(1)(a), (b) and (c) and s.16(2) and (3) (to the extent that they operate by reference to s.16(1)(a), (b) and (c)) must be held to be invalid."

35. In the view that I have formed it is unnecessary to answer the second question in the case stated. However, it is appropriate that I state that I agree that the second question should be answered in the manner proposed in the judgment of Mason C.J. and Brennan J.

Orders

Answer the questions as follows:

1. Q. To what extent, if any, is the Lemonthyme and

Southern Forests (Commission of Inquiry) Act 1987 (Cth) invalid?

A. The Act is valid.

2. Q. In point of law is any, and if so, which, of the

allegations made -

(i) in paragraph 17 of the defence of the first defendant

(ii) in paragraph 15 of the defence of the second defendant

(iii) in paragraph 16 of the defence of the second defendant,

an answer to the relief claimed by the plaintiff against the respective defendants?

A. (i) Paragraph 17 of the defence of the first defendant is not an answer to the relief claimed.

(ii) Paragraph 15(b) of the defence of the second defendant is not an answer to the relief claimed.

(iii) Not answered.

Order that the defendants pay the plaintiff's costs of
the hearing and determination of the questions reserved for the consideration of the Full Court.