State of Queensland & Anor v Commonwealth of Australia

[1989] HCATrans 219

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B80 of 1987

B e t w e e n -

STATE OF QUEENSLAND

First Plaintiff

ATTORNEY-GENERAL FOR THE STATE

OF QUEENSLAND

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

GRAHAM FREDERICK RICHARDSON (who

is sued in his capacity as

Minister of State for the Arts, Sport, the Environment, Tourism

and Territories)

Second Defendant

Daintree

Application to refer a question

of law to the Full Court

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 SEPTEMBER 1989, AT 10.26 AM

(Copyright in the High Court of Australia)

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MR G.F. GRIFFITH, QC, Solicitor-Generalfor the Commonwealth:

If Your Honour pleases, I appear with my learned friends,

MR D. GRAHAM, QC and DR S.C. KENNY for the

defendant/applicant. (instructed by the Australian

Government Solicitor)

MR P.A. KEANE, QC:  If Your Honour please, I appear with my

learned friend, MR D.J. McGILL, for the State of

Queensland which is the respondent to the summons.

(instructed by the Crown Solicitor for Queensland)

MR GRIFFITH:  Your Honour, in case it may be of assistance,

we have prepared a volume of material consisting

of the legislation, the plaintiffs' statement of
primary facts, contentions and issues, the
respondents' similar statement, a list of witnesses

filed on behalf of the applicants- that list has been

updated as an exhibit to an affidavit filed by the

applicants- a copy of the statement of claim and

pleadings and a copy of the Court's decision in

TANNER, RICHARDSON and the earlier decision in

this case. That is just for Your Honour's convenience.

HER HONOUR:	Thank you, Mr Solicitor.
MR GRIFFITH:	This matter was last before Your Honour on 24 January

and on that occasion Your Honour made an order

remitting a question to the Federal Court of

Australia subject to pleadings being put in order

which they were. Your Honour, in that order,

reserved liberty to apply and, in essence, Your Honour,

this application ismore or less pursuant to that

liberty but we have issued a summons to indicate the

order which we seek. But our application, of course,

Your Honour, is merely directed to the issue of the

validity of regulation 3C and no other matter. I would

take it Your Honour would have a distressingly clear

recollection of the several occasions on

which we argued this issue before you in January.

And, of course, Your Honour, on 24 January, as indicated in the previous hearing, made the order which I

referred to remitting the question:

Whether Regulation 3C, in prescribing acts

for the purpose of section 9(1) of the Act, is not reasonably capable of being regarded

as appropriate and adapted to give effect

to the object of the protection,
conservation, presentation or rehabilitation
of the property.

Your Honour formulated that question on the basis of my learned friend, Mr Davies, who then appeared for the plaintiffs, in effect, elected to narrow the

pleading to, as it were, pick up what might be distilled

from RICHARDSON and the earlier cases as the appropriate
issue of factual inquiry in respect to an allegation

as to invalidity of regulation.

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Your Honour will recollect at that time, and

in previous applications, we made application that

there be a question in form stated to the Full Court
at the same time as the question as to the validity

of the regulation be stated because we then contended,

Your Honour, that there was sufficient material for

the Full Court to be able to say that the regulation

must necessarily be valid.

HER HONOUR:  You have come back with much the same application

today, I think, have you?

MR GRIFFITH:	No, we do not, Your Honour - - -
HER HONOUR:	No?

MR GRIFFITH: - - - because we wish to make it clear, Your Honour,

that we fully accept Your Honour's ruling as

appropriate at the time and rely on changed

circumstances for this application. So, it is not

the same application. It is an entirely different

application.

Your Honour, what we say occurred last time

is that Your Honour took the view that the plaintiffs

should be given an opportunity to replead, to, of course, have the issue of validity of the proclamation determined

by the Full Court and an opportunity to call evidence

in relation to their allegations going to the issue of validity of the regulation. Now, the two issues of change of circumstances which we say now give rise to,

not the reconsideration of the application made in the context that Your Honour did remit a question to the Full Court, is that, of course, the Full Court

on30 June 1989 ..-in its-judgment upheld the proclamation
and regarded the entry of the property in the World

Heritage List as conclusive as to validity and, of course, the judgment of the Court was unanimous because

His Honour Justice Dawson took the view that an antecedent
time was the appropriate time but the view of the

Court was that no later than the time of entry in the

list then that was conclusive of validity.

May I take it that Your Honour does not feel

it is necessary for me to take you to the

legislation to the form of the proclamations?

HER HONOUR:	Yes, I think that is - - -
MR GRIFFITH:	Yes.

HER HONOUR: Well, certainly not at this stage.

MR GRIFFITH: Right. Your Honour also took the view that the

plaintiffs should have the opportunity which they said
they sought - and this appears in the transcript on

24 January at page 139 - to put forward their proposals.

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And that has been done, Your Honour, by the

statement of primary facts and contentions and
issues which Your Honour now has a copy of and,

of course, has been filed.

Your Honour, our basic submission is that

a consideration of these two circumstances, the

of the plaintiffs' statement of primary facts, effect of the judgment and also a consideration
contentions and issues, leads to·the result that
the regulation 3C must necessarily now be regarded

as valid and what we seek, Your Honour, is that

the Full Court be asked a question in the form of

that which we have put forward in our summons,

that the Full Court be given again the materials

which they had in the case state~which Your Honour

will remember the two volumes of materials which

went before the Court as to the process of listing,
and also be given the advantage of the plaintiffs'

statement of primary facts, contentions and issues.

What we submit, Your Honour, is that the Full Court

decision on the case stated very much vindicated

Your Honour's ruling that it was appropriate to

test validity of the proclamation. And we say,

Your Honour, that when one has regard to that judgment and to the plaintiffs' assertions which

they have put forward in this statement of primary

facts, contentions and issues, that we reach the

position that one can say, "Yes, even if everything

you allege there is true and is proven, none the less

the regulation necessarily must be held to be valid."

Now, if we could elucidate, Your Honour, as to

the - - -

HER HONOUR:  Is it not rather, even if everything there is

proven, there is no basis for holding, in terms of

the question, that the regulation is not inappropriate?

MR GRIFFITH:  Yes. Now, Your Honour, I will take you briefly

to the pleading to indicate that whilst the -

we would say the question, Your Honour, was an appropriate

dissection of the issue to be remitted at a time when

many aspects of the statement of claim were alive

and attached both to the issue of validity and the

proclamation, in our submission, Your Honour, it is

appropriate now to look at the pleading and determine

what is the issue which presently now is alive and

to put the - - -

HER HONOUR:  Could we do that from the pleadings proper or do we

have to go to the - - -?

MR GRIFFITH:  No, we can do it from the pleadings proper,

Your Honour. It might be convenient if I do that

now, Your Honour.

HER HONOUR:  Yes, thank you.

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MR GRIFFITH:  The amended statement of claim, Your Honour,

dated 31 January 1989, is sufficient for our

purposes. The previous statement of claim on

which Your Honour made the order was, of course,

amended because Your Honour's order ma.de it

subject to appropriate amendments and there is

no need for me to take you to the paragraphs

which were, in effect, deleted by the pleadings

on making the election which arose from Your Honour's

consideration.	Has Your Honour that statement of
claim?

HER HONOUR: Is it 31 January?

MR GRIFFITH:	Yes, Your Honour.
HER HONOUR:	Yes, I have that.
MR GRIFFITH:	Your Honour, this statement of claim falls into,

in effect, three parts. The first part is

paragraphs 1 to 5 which plead the nomination,

the proclamation and the making of the regulations.

So, all that is agreed, Your Honour, as the basis

of the plaintiffs' allegations.

Your Honour, there then follows a series of

allegations from paragraph 6 to 16 which allege

that either the whole of the property or part of

the property is neither natural heritage nor cultural

heritage, in whole or part, nor capable of being

either of those heritages, in whole or in part.

And, of course, Your Honour, that pleads the

alternative which was deleted in respect of the

allegation for the regulation separately because

the allegation in paragraph 6 is that the property

is not natural heritage as an absolute fact and

then the alternative pleading in paragraph 7 that

it is not reasonably capable of being regarded.

Well, the decision of the Full Court, Your Honour,

held that neither of those allegation; could be

made - were tenable, because, upon listing, then

the listing was conclusive of the matter of fact

that the whole of the property was World Heritage

and that the whole of the proclamation as it

applied to the whole of the property was necessarily

valid.

So, Your Honour, to put the matter shortly:

we contend that the answer of the Full Court to

that question determined that none of the allegations

in paragraph 6 to 16, inclusive, are tenable. They answered

the question, Your Honour, the proclamation is valid

and also, Your Honour, they answered the question,

inasmuch as those allegations were attached to an

allegation in respect of the validity of the

regulation, none of those allegations can be made

because the whole of the area necessarily is World Heritage and the whole of the proclamation for the whole of the area is conclusively valid.

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So, we submit, Your Honour, that, in effect,

the judgment of the Full Court is to eliminate

paragraphs 6 to 16 as a relevant pleading attached

to the claim in respect of the validity of the

regulation. So that the only outstanding allegation,

Your Honour, apart from the formal parts of the

statement of claim is in paragraph 17, in our

submission.

Your Honour, up to that point, of course,

the pleading had a dual purpose: firstly, to make
allegations in respect of the validity of the proclamation

and secondly, to make allegations in respect of the

validity of the regulation.

Paragraph 17 says:

Further or in the alternative, the

Regulations in prescribing acts for the

purpose of Section 9(1) of the WORLD

HERITAGE ACT are not reasonably capable

of being regarded as appropriate and

adapted -

et cetera. Now, Your Honour, we submit that inasmuch

as this paragraph is expressed as being further

to the pleadings in paragraphs 6 to 16, that

allegation no longer may be made because none of

those facts - allegations in those parts of the

paragraphs may be made. The whole of the property,

Your Honour, we say must be accepted as being

World Heritage.

It follows, Your Honour, that the only relevant pleading is the alternative one made in paragraph 17

which is a bald allegation that the regulations

"not reasonably capable" et cetera, picking up the

articulation of the test still from RICHARDSON. When one goes to the prayer for relief, Your Honour,

eliminate the plaintiffs' claims (a), (b) and (c).	the effect of the decision of the Full Court is to
They all deal with the issue, Your Honour, of whether
or not in fact the property is World Heritage.
It must be regarded as World Heritage.

the Convention does not impose •.... obligations -

the Full Court have held that it does; and:

A declaration that the proclamation ..... is

invalid -

and it has been held wholly valid. So that the only

issue, Your Honour, is the prayer for relief in

declaration (d):

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A declaration that the Regulations made

pursuant to Section 9(1) of the WORLD

HERITAGE ACT in respect of the property

are invalid and of no effect.

And that, of course, attaches back to the alternative

allegation in paragraph 17. In our submission,

Your Honour, that is the only outstanding issue in

the case and, in essence, although it was not expressed

like that when Your Honour made the order of 24 January,

we submit, Your Honour, that is the question which

has been remitted to the Full Court. But it was not

appropriate, Your Honour, to express it in that way

because of the way the issues of the parts of the

pleading in paragraphs 6 to 16 were tied up in a way

that made it so intertwined with the issue of validity,

the proclamation that those parts could not be

separated out and ordered over.

Now, in that context, Your Honour, we make

just as a passing comment, it is our contention

that, in effect, when one looks at the position of

the pleadings now after the decision of the Full Court,
the whole of the matter now still outstanding has,
in effect, been remitted to Justice Lockhart in the

Federal Court for determination, ie, the only live

issue, the issue of validity of the regulation.

Now, we say that, Your Honour, to mention that

on one or two occasions His Honour has expressed some puzzlement as to how the question was framed

in the form that it is and that has been explained,

Your Honour, by reference to the manner in which argument proceeded and the way in which the other case on validity to the proclamation was referred

into the Full Court but, Your Honour, we would be of

the view that if no order is made by Your Honour

today - and I just make this as a passing observation -

it probably would be useful, Your Honour, to put

beyond argument or to resolve any issue of possible

puzzlement by making it clear that at this stage

the whole of the matter is remitted to the Full Court

for determination, that is, all issues dealing with

the - Federal Court, Your Honour - validity of
the regulation.

Indeed, Your Honour, we would say this is implicit in the order which you made on 24 January because

you did then also vacate the order in respect of

further and better particulars on the basis that the

question of particulars can be determined by the

Federal Court and reserve the right for an application

back to Your Honour. But as we see it, Your Honour,
it follows as a matter of necessary consequence that

the elimination of all issues except those going to the validity of the regulation means that, in essence, the Federal Court is seized of the whole of

the matter which is still alive and what we seek to do

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is to do something about that, namely, to get what

we say is a point of law or, perhaps to put it another

way, an answer by way of demurrer on the information

as now elucidated.

HER HONOUR:  But you cannot demur to the pleadings of

paragraph 17 of the amended statement of claim.

MR GRIFFITH:  No, of course not, Your Honour. So, what we

say is there is an issue of law which is determinative

of the case. Your Honour, we, of course, accept that

it is necessary to satisfy Your Honour that the

change in circumstances we refer to do give rise

to the appropriateness of this question, accepting

as we do, Your Honour, fully and without qualification,

Your Honour's ruling that it was inappropriate to

take that view in January, and we do not challenge

or seek to go over that ground again or to argue

to the contrary.

Now, Your Honour, we say that the effect of the

decision of the Full Court, also, of course, when
read with the TASMANIAN DAM case and RICHARDSON,

is that the validity of the entire legislative

regime for the wet tropics is established and

what we say is, Your Honour, that, firstly the

entire provisions of the WORLD HERITAGE PROPERTY

CONSERVATION ACT as amended have been held valid.

We say, secondly, Your Honour, that it must be the case

that the protection and conservation of the wet tropics are matters of international obligation

within section 6(2)(b), (c) and (d) and, of course,

that fact follows from the inclusion in the

World Heritage List. So, indisputably, the whole

of the property is World Heritage status.

The next significant matter, Your Honour,

is that we say that it establishes that the

Governor-General is satisfied that the property

in its entirety was being or was likely to be

damaged or destroyed. That goes to section 6(3) of

the proclamation-making power. And, Your Honour,
the plaintiffs' reply of which Your Honour has a

copy accepts that. So, it is common ground that

the Governor-General is satisfied that the property

in its entirety is being, is likely to be damaged

or destroyed. Your Honour, it is not disputed that

that satisfaction of likely damage arose from the

plaintiffs' stated intention to continue logging in

the wet tropics. In fact, the plaintiffs' case is,

Your Honour, it intends to log in some areas and not

in others.

Now, the proclamation declares the whole of the property to be property to which sectior1 9 applies

and, Your Honour, that proclamation has been held

valid by the Full Court. That was its decision.

Now, it may be that the proclamation could have been

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expressed to apply to part only of the property.

That is a matter of construction, Your Honour,

but it is expressed to cover the whole and the

Full Court, of course, upheld the proclamation in

its entirety. So, the result is, Your Honour,

that all the property, including those parts

where the plaintiffs propose to log, is property

to which section 9 validly applies. Your Honour

will remember the scheme of the Act, that

section 6 provides for the capacity to proclaim

on the Governor-General's satisfaction and the

inhibition, Your Honour, the prohibition, does

not arise from the proclamation or the regulation,

it arises from the operation of section 9 itself.

Your Honour, we say section 9 is valid but

that merely confers the power to prescribe certain

acts in relation to the property and I do not think

there is any need to remind Your Honour that,

in its previous form, some paragraphs of section 9

were held invalid in the TASMANIAN DAM's case
and it was recast to pick up, in effect, the

previous paragraph 9(l)(h) as the new subsection 9(1).

So rather than listing a category of activity

such as previously was there:

to kill, cut down or damage any tree

on any property -

one just has a direct provision which has been held

valid by this Court in the TASMANIAN DAM's case of

saying:

Where an act is prescribed for the purposes

of this subsection in relation to particular

property to which this section applies, it is

unlawful, except with the consent in

writing of the Minister, for a person to

do that act, or to do that act by a servant

or agent, in relation to that property.

Now, regulation 3C, of course, merely specifies particular commercial acts and those commercial acts,

Your Honour, are far narrower in ambit than those which Your Honour addressed in the RICHARDSON case

because the limitation is to the course of"forestry

operations"which means "commercial exploitation of forestry resources" and does not have the extended

reach with which Your Honour had difficulty in

accepting in the RICHARDSON case.

Your Honour, we say that once there is a

proscription under regulation 3C, it must be the

case that the regulation itself is regarded as within the regulation-making power under section 21, subject only to one qualification, that the regulation-making

power could not authorize regulations beyond

constitutional power and would have to be read down

accordingly. So, the question is, Your Honour,

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whether the regulation in that way may be regarded as

valid. The regulation, I remind Your Honour, does

not itself proscribe, it is section 9 which proscribes
the activity and section 9, as we say, has been

held valid.

Now, Your Honour, because the proclamation

is expressed to apply to the whole of the property,

there is nothing, of course, in section 9 to permit

an activity to be proscribed only in part of that property so that if there is to be a proscription we would submit, although this is not essential for

our case, it does follow, Your Honour, that the

proscription must be for the whole of the property.

Does Your Honour have regulation 3C?

HER HONOUR:  Have you given it to me today?

MR GRIFFITH: It is in there, I am told, Your Honour. It might

be at the back of the Act, Your Honour.

HER HONOUR:	Yes, thank you, I have that.
MR GRIFFITH:	Your Honour, you will see that regulation 3C

proscribes precise activity: commercial logging and

ancillary operations, and that formed the basis of the

Governor-General's satisfaction and it is those acts,

Your Honour, which the plaintiffs have stated that

they wish to continue and we submit, Your Honour,
that regulation 3C specifies a narrow range of

activities, not all forms of tree felling but only

those on a commercial scale. We mention too, of

course, that the prohibition is a qualified one.

The operations are lawful if the Minister consents
to them and, Your Honour, the provision as to consent,

of course, is amendable to judicial review.

Your Honour will recollect in RICHARDSON that
Your Honour discussed the issue of the question in regard
to what matters such consent power is to be exercised
but as to that, Your Honour, it is perhaps sufficient
to indicate that there is this power of consent which

is subject to review and we say, Your Honour, that

in the result there is, in effect, a

specific proscription under a specific legislative

regime.

Now, Your Honour, turning now to the plaintiffs'

allegation of facts.	Your Honour, that is in the
volume;	it is also exhibit D and Dl to Mr Durack's

affidavit. It is a statement of primary facts,

contentions and issues filed on behalf of the

applicants. May I take Your Honour briefly through

those statements?

HER HONOUR:  Yes, thank you.

MR GRIFFITH: There is the definition provisions, Your Honour,

on the first page, paragraph 1. Paragraph 2, Your Honour

is a generic allegation:

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that ..... the prohibition ..... is not reasonably

capable of being regarded - - -

HER HONOUR:  I am sorry, from what are you reading?

MR GRIFFITH: Paragraph 2 of the plaintiffs' statement of primary facts, contentions and issues. It was

headed "Applicants' statement", Your Honour.

HER HONOUR:  Yes, I am sorry, I have got the respondents'.

MR GRIFFITH:  Filed in the Federal Court, 18 April. I think

it is in that volume.

HER HONOUR:  I have got the respondents' statement, I am sorry.

MR GRIFFITH: Your Honour, I was not intending to bother you

with our's because our view is, Your Honour, it is

the plaintiffs' allegation that is relevant to

our application this morning. It is a fairly short

document, Your Honour, five pages.

HER HONOUR:	Yes, thank you.
MR GRIFFITH:	Paragraph 1 are the definitions which are obvious

enough by reference to the convention. Now,

paragraph 2 is not an allegation of fact, Your Honour,
it is more or less a claim. It is the issue and we say, putting it another way, the issue is that the plaintiffs are saying they assert the regulation is invalid,

and that picks up paragraph 17 of their pleading.

Your Honour, paragraph 3 makes various

assertions of fact as does paragraph 4, and if I

could take Your Honour briefly through them. They

are allegations that they are - and we say, Your Honour,

for the purpose of our application, all these

allegations may be regarded as true.

Large areas in which commercial forestry

operations were prohibited under existing

being areas of national parks, scientific State legislation and other controls,	areas, feature protection areas, or
environmental parks;
(b) Large areas which were not suitable
for commercial forestry operations because
of topography or other natural features, or
because there were no relevant forestry
resources -

et cetera.

(c) Areas held by trustees for aboriginal

communities ..... where ..... forestry operations

can take place only with consent .....

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Areas which the Applicant proposed and

proposes to include in new or extended

national parks, scientific areas -

et cetera. And we should indicate there, Your Honour,

that material and amended material has been filed

by the applicants indicating that there are further
areas which are proposed, in effect, to be set aside
in "no logging areas" by the applicants under their

proposal.

(e) Areas which, under the Applicants'

forestry management programme, were not

to be subject to commercial forestry

operations;

(f) Areas of freehold land (less than
1% of the Property) in respect of which

the Applicant had no control over commercial

forestry operations thereon.

And there is a map, Your Honour, which exhibits those

areas in respect of which commercial forestry operations

were not to be carried out. In ef feet, Your Honour,

there are two maps: one is the reflection of the
other; one indicates areas where there is not to be

logging and the other indicates areas where the

plaintiffs say it is appropriate for them to log.

T2 Your Honour, just to express the position

roughly, when one looks at the maps, if I could

indicate that it would seem that the plaintiffs are

not contending an area of 75 or 80 per cent should

be logged.

HER HONOUR:	Sorry? They are contending or are not?
MR GRIFFITH:	They are not, in effect, seeking to log 75 to

80 per cent, they are only seeking to log

20 to 25, a minor part. That is putting it roughly,

Your Honour, but the percentages would seem to be

in that order.	So that, in effect, Your Honour,
the summation at paragraph 3 is to say,"These

areas are excluded from areas where we would propose

to log and it is about 75 to 80 per cent."

Your Honour, then, in paragraph 4 there is an

allegation that if it were not for the regulation

the applicants would propose to continue a selective

logging programme within certain areas, and then

follow, Your Honour, the salient principles for

determining the manner of logging. Now, Your Honour,

it can be accepted that that is what the plaintiffs

intended to do, that they intended to have a

sustainable yield, only extract eight or 12 trees

per hectare in 40-year logging cycles; there would be

tree-marking rules. It is asserted:

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The the selection logging programme

is important to the regional economy -

which we, of course, say is a totally irrelevant

allegation, Your Honour, and -

That the area affected by the proposed

selection logging programme greater

than 95% of that area has already been

logged on at least one occasion.

And there is a map attached showing that. So that,

in effect, Your Honour, the indication is that the

plaintiffs intend to carry on commercial logging in

something approaching 20 to 25 per cent of the

whole area and no more.

Now, Your Honour, in paragraph 5 - and remember

this statement, Your Honour, was served before the
decision of the Full Court. It is alleged that:

The areas of the Property delineated in the map annexed hereto and marked "B" -

that is the area where the plaintiffs propose to

log -

have no characteristics of natural
heritage or cultural heritage.

Now, Your Honour, perhaps in a moment, if I could come back and address that as what we would assert

as being an impermissible allegation, given the

judgment of the Full Court, but just to complete our
reading of it, Your Honour, paragraph 6 says:

Alternatively, any characteristics of natural heritage or cultural heritage in the areas of the Property delineated

in the map annexed hm:eto and marked "B" -

the area to be logged -

could not be adversely affected by the

selection logging programme.

And then there is a further allegation that:

Any natural heritage or cultural heritage characteristics -

in the remaining area -

could n~t be adversely affected by -

logging in the proposed area. And then a statement in

paragraph 8 that:

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The Property is not an homogenous

forest -

it has -

been exposed to a variety of disturbances .....

including forestry operations, mining

operations ..... roads -

et cetera, and:

parts of the area have been affected by

fire and intermittent cyclonic disturbance.

In paragraph 9:

There are areas within the Property where

the degree of prior disturbance has been

so great, or the natural heritage or
cultural heritage characteristics are so

limited, that commercial forestry

operations in such areas could not

adversely affect the Property as natural

heritage or cultural heritage.

And that is all, Your Honour. That is the plaintiffs'

statement of facts.

Now, in support of that statement, Your Honour,

there have been many statements and documents which
have been filed by the applicant and some in reply
by the respondent but it is sufficient if I refer

Your Honour to the exhaustive list which is exhibited

as exhibit A to the affidavit of Barry Thomas Dunphy,

sworn 20 September 1989 which list the witnesses by

description and gives an outline of the evidence

which is going to be called by them. Your Honour

will see that the list is extensive, just under

60 witnesses and I think the longest statement is

over 300 pages but there is an enormous volume of

material subsumed under this listing. Your Honour

will see from the outline the sort of matters to

which the evidence is given and can be categorized

in different sorts of evidence; for example,

Your Honour, on page 6 of this list, one sees one

witness is to discuss:

distribution and characteristics of the

frogs listed in Appendix 9 of the

Nomination.

Another is going to tell us about ferns; another about mammals; another about:

amphibia and birds detailed in Appendix 9 -

et cetera.

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Now, Your Honour, we do not intend to refer

Your Honour to the content of these statements

and we just merely refer to this list to

indicate the nature of the evidence which is

proposed to be called. And as is

seen from the affidavit of Mr Durack, Your Honour,

the fact that we say that when one looks at this

it would seem, on any view, that if all these

matters of fact are to be inquired into, whether

relevant or not, it looks a bit like a four, or five,

or six month trial.

HER HONOUR:	You cannot really say, Mr Solicitor, if all these matters, whether relevant or not, are to be inquired
into, we shall start from the premise that the Federal Court will allow in such evidence as is relevant and
exclude such as is irrelevant.
MR GRIFFITH:	Yes, Your Honour. Your Honour is quite right to

correct me. Your Honour, it would be our view that

if no order is made today and the matter proceeds

before Justice Lockhart, there would be an

application made by way of preliminary issue of law

in the same terms as the application being made

before Your Honour today - - -

HER HONOUR: Exactly.

MR GRIFFITH:  - - - which we would expect, Your Honour, to be

vindicated and that would be the end of the action

subject to appeal.

HER HONOUR: Well, may I ask why that has not been done?

MR GRIFFITH:  Your Honour, there are two reasons for that:

the first reason is because Justice Lockhart has

expressed some puzzlement as to what it is he is

being directed to do and we feel it is appropriate

to clear the air about that to make it clear that

what he is intended to do is to act as a trial judge

for the whole of the matter still open, namely, to

because it clears the air of puzzlement. But the	So, Your Honour, that would be progress in itself determine the issue of validity of the regulation.	second thing is, Your Honour, that we say that -
not for the same reason that we put in January but in the same manner that the question proposed for the proclamation was one which wholly resolves the matter, we submit, Your Honour, that it is
exactly the same position here and that there is no
advantage in seeking _!:hat Justice Lockhart decide that in a manner which will then only be subject to
appeal either to the Full Court of the Federal Court
or to this Court or subject to removal or some such application because the point is there, Your Honour,
and as we indicate to Your Honour, in our submission, it is a point which is supported by the material that
the Full Court already has,supplemented only by one additional document, the plaintiffs' version of these

S1T3/3/PLC	15	22/9/89
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assertions of facts and contentions which they

say are relevant. Now, to elucidate that,

Your Honour, could I briefly go through the
relevant paragraphs of their statement and explain
to Your Honour why it is we say that if these are

the plaintiffs' allegations of fact, after the

judgment of the Full Court, we submit, Your Honour,

that necessarily the regulation cannot be held

invalid.

HER HONOUR:	What is the document really? Is it the equivalent of particulars?
MR GRIFFITH:	Your Honour, because we are left with the pleading with

only one paragraph, namely, "in the alternative

regulation 17 is invalid" - - -

HER HONOUR:	Yes, I follow that.
MR GRIFFITH:	- - - it is the only document, Your Honour, where the plaintiffs are saying why it says it is
invalid and, in effect, it is saying it is invalid
by reference to the RICHARDSON test. Now, what
we say, Your Honour, is that that, as a matter of
law, is not tenable. "If that is what you allege,
you lose."

HER HONOUR:  Well, let me put it this way: does the document

called "Statemer-.:: :-)f Primary Facts, Contentions and

Issues, Filed o:" 32half of the Applicants" operate

in law to confine :ie issues to those in that

document?

MR GRIFFITH:  Your Honour, we say it operates to widen the

issue to those in the document but our submission

is, Your Honour - - -

HER HONOUR:  I understand that point but the point is this,

if one goes, by reference to paragraph 17 of the

amended statement of claim, one then can envisage

a variety of evidence outside what is in the

statement of primary facts.

MR GRIFFITH:  Yes. Well, not now, Your Honour.

HER HONOUR: Is that because - leaving aside the facts, we are

talking as a matter of theory and logic. One

could imagine, for example, by reference to

paragraph 17, evidence that unless one in three

trees was chopped every three years, the forest would

choke to death and die in ten years; just talk

about that sort of evidence, which would fall within

paragraph 17. Does this document which I have got
called "Statement of Primary Facts" so operate as to

preclude evidence of that nature being led?

MR GRIFFITH:  Your Honour, we would submit that, in fact, it

does because we now have all the evidence and that

is why we have not applied hitherto, Your Honour.

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Daintree

The applicants have put in all their statements

and as far as we can see from them, Your Honour,

they are confined to dealing with the issues - - -

HER HONOUR: Well, that is by agreement between the parties,

is it, that the case is confined within the bounds

of this document?

MR GRIFFITH:  I am told there is an order of Justice Lockhart

to this effect, Your Honour, that this document be

delivered so that, in effect, it was delivered pursuant

to an order so that it has that effect. So, we would say "yes" to Your Honour's question. And that is how

it has operated, just to confirm that.

HER HONOUR:  That there is an order that no evidence can be

led of any matter beyond that which is set out

in the statement of primary facts?

MR GRIFFITH:  No, it is not a specific order but by implication,

Your Honour, that the plaintiffs have been

directed to state, "Well, what are the facts that

you say are relevant?" and then directed to give

witness' statements in support of those and that

has been done and completed.	So that is how it
has gone, Your Honour.	But I do not understand there

is a negative of the order in saying, "And you can't

have evidence beyond that" but, of course, Your Honour,

when one looks at the diversity of these things,

one has a broadening rather than a narrowing in any

event.

Your Honour, it might be useful for us to

support the proposition that it is appropriate
for the Full Court to do this now rather than for
the Federal Court to do it as a preliminary way
which, perhaps, is to isolate the essential issue

as to why we are before Your Honour today, to

go through these paragraphs now, one by one, and

just indicate to Your Honour what our response to

them is.	Now, as to the contention, of course,
made in paragraph 2, Your Honour, we say that is

merely to repeat the pleading, so that is not a

statement of fact. As to paragraph 3, Your Honour, in

indicating that there are these large areas making up
75 to 80 per cent of the area which are not intended

to be logged, Your Honour, what we say is that one

has a statement involving concessions that there

are extensive areas which should be protected and

conserved from logging and that, of course, implicit

in references to the "national parks" et cetera is

the reference to a State regime to ensure that

there is not logging. So, Your Honour, what we say,

in essence, of this first contention in paragraph 3

is to say, "Yes, it is cormnm:1 g1:0ur1cl that cormnercial

logging should not occur in 75 to 80 per cent of the

area." Now, Your Honour, we say that does not advance

the plaintiffs' case for invalidity of the regulation

in its direction at all. In fact, to the contrary:

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we say that allegation supports our regime which,
as we have indicated, Your Honour, i~- a regime

which must supply to the whole, not just parts.

The second allegation, Your Honour, is that

the plaintiff admits that unless stopped they

will carry out commercial logging in the context,

Your Honour, that they have admitted the

Governor-General's satisfaction that this logging

activity would cause damage to the area. So that

is really an admission rather than a contrary

allegation.

The basic contentions, Your Honour, of the

plaintiffs after that are then to say that these
proposed logging areas have no world

natural heritage characteristics or none which

could be adversely affected by proposed logging.

Now, Your Honour, as to the allegation in paragraph 5

that there is:

no characteristics of natural heritage

or cultural heritage -

well, of course, we say the decision of the Full Court
makes that an impermissible allegation because the

Full Court have held that the whole of the area must
conclusively be accepted as it being of World Heritage
statue, not just parts as selected by the plaintiffs
but the whole of the area, Your Honour, must be
regarded as World Heritage.

Now, inasmuch as the plaintiffs seek to delimit

out part of that as they do in map "B" and as
alleged in paragraph 6, Your Honour, we say, again,

that is impermissible because the determination of

we say, any inquiry as to the status of parts as is

the case stated is that the inclusion in the World

opened up by paragraph 6 is inconsistent with the

determination of the Full Court and we say it is not

open to the Federal Court to make this inquiry of

fact which is sought to be opened up by the plaintiffs.

Your Honour, to put the matter briefly at the

moment, and I will take Your Honour to this in somewhat

greater detail, we say that the documents annexed to

the case stated dealing with the listing process

demonstrate that the World Heritage Committee's

consideration, with the assistance of the various reports

of inquiries of the IUCN and otherwise, involve the

necessary identification and valuation of characteristics
which gave the property World Heritage status and a

determination that they prevailed throughout the whole
of the property to warrant inclusion of the whole
property in the list. So that, in effect, Your Honour,
what the plaintiffs' case is - and this is to go to the

essence of it - is to invite fresh inquiry into the

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distribution of World Heritage characteristics

including the effect of prior disturbances, in
other words, to reopen the determination of the

World Heritage Committee's finding on that point

which, of course, the Full Court said was conclusive.

Now, I will return to that in somewhat more

detail in a minute, Your Honour, but if I could

continue the sunnnary of our analysis of their

contentions, Your Honour. The next contention is that

selective logging programme will not affect the

property's natural heritage characteristics. Now,

as to that, Your Honour, we say that allegation is

one which cannot be made because, firstly, it involves

inquiry, again, into the World Heritage Committee's

decision to list the entire property. If the

plaintiffs accept, as they do, that there should be

no commercial logging in 75 to 80 per cent, they

apparently concede a· prohibition is. appropriate in
respect of conservation of that part of the area

and then to say, "Well, Your Honour, we can

determine that there are other areas where commercial
logging could be carried out in some parts of the

total because they don't contain equivalent elements

of natural value", Your Honour, we say that is quite

inconsistent with what has occurred and what has

been held to have occurred by the Full Court arising
from the Heritage Committee's consideration of the
whole area and the fact that the proclamation covers

the whole area. So, we say, Your Honour, it is not now

open to have a course of inquiry, a judicial determination,

bit by bit.

Now, the second thing, Your Honour, we say about

this allegation is that in alleging that selective

logging may be carried out in this area, in essence,

what the plaintiffs are saying is their proposed

regime is the best regime. In other words, we say,

Your Honour, that the contention put can_ be put no

higher that this is the best way in which a regime of

protection could be carried out. Now, Your Honour,

we would say that that also is an impermissible

approach of the plaintiffs in that it is not for

them or for the Court to second-guess the decision

of the legislature. We submit, Your Honour, that

it is not a proper line of inquiry to consider

whether the Commonwealth or the State's proposals

are most appropriate and adapted. It can only be,

Your Honour, that there is invalidity if the approach

taken by the Commonwealth is one which can be said to

be not one which is "reasonably", et cetera, "capable

of being adapted" et cetera, Your Honour, and we

submit that when one looks at what is alleged, that

allegation is not made and we would say, cannot be

made.

So, Your Honour, if one assumes as one must that

the entire property is World Heritage status, we say it must be permissible for the legislature to regard

SlT3/7/PLC	19	22/9/89
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the continuation of commercial logging as

inconsistent with the protection, conservation,

preservation and rehabilitation of the entire

area. So, we have got to the point that the

plaintiffs now have been given the opportunity

which they sought, to put forward their proposals,

and we say, Your Honour, quite simply, that none

of these can affect the validity of the regulation.

Your Honour, it is manifest that there is a substantial body of evidence which will give

rise to large disputes but, in our submission,

they do not go to the point at issue.

May I briefly return, Your Honour, to this

question of what is subsumed in the determination

by the World Heritage Committee and make passing

reference to the materials in these two volumes. context here to the issue of validity of the

regulation from that which existed in the RICHARDSON

case. In the RICHARDSON case Your Honour will

remember that the legislation - and there we were not

concerned with a regulation, we are concerned with

regulation - was a prohibition in broad terms,

Your Honour, not confined to commercial logging,

in respect of property, in respect of some of which

most likely was not World Heritage, was the
matter of possibility none of it might have been

World Heritage. So that there was an unusual

factual context where it could be put that there

was a regime in anticipation of World Heritage status

possibly being vindicated for a whole or part of

the area.

Now, in the result, Your Honour, although there

was some differences of opinion and particularly

on the question of validity of these particular

regulations rather than the ability to preserve,

to some extent, between members of the Court and to

express the matter baldly, Your Honour - - -

HER HONOUR:  I think I was in the minority, any way. You

need not - - -

MR GRIFFITH:  Yes. Justice Deane and Your Honour took the

view that the facts were not sufficient and

Your Honour, of course, kindly had regard to my fall-back position of saying, "Well, if these are not enough facts, don't throw us out until we have

further inquiry after the facts". But the point

we want to make, Your Honour: that in RICHARDSON

there was no established areas of World Heritage

significance attracting obligations under the

convention and Your Honour said - I hope that I am

picking up Your Honour's meaning correctly at page 341

in RICHARDSON, Your Honour, that to that reason

there could be no reasonable intendment in favour

of the challenged legislative proscriptions because

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it was all in a green grass area and not in an

accepted World Heritage area and, Your Honour,

we can accept that as being a matter of strong

distinction between RICHARDSON and here.

Now, Your Honour, we say that here the

Full Court's decision makes it clear that the

primary facts on which validity depends have been

established. The wet tropics have been included

in the list. It is clear that Australia is under

an international duty to protect and conserve the

whole of the property and so, Your Honour, we
would hope to pick up Your Honour's approach

from page 341 in RICHARDSON I referred to to

say that therefore it is appropriate that every

reasonable intendment should be made in favour

of this legislation in contrast with the approach

that was appropriate in RICHARDSON. Of course, we

do not rest there, it is just a matter of, we would

say, appropriate approach in this case.

The second difference between RICHARDSON and

here is that the Court has very much more

information here as to the conditions of the

property and the dangers to it. Now, Your Honour,

in RICHARDSON there was not very much evidence.

There was just the references of fact subsumed

in the judgment of Justice Mason on the

interlocutory application and there was an
agreement - and you pick this up from the judgment

of Their Honours Justice.Mason and Justice Brennan

in the Full Court determination in RICHARDSON,

that there was agreement that those facts in so far

as they were not in dispute could be referred to

by the Court. Now, when one rereads the judgment

of Justice Mason on the interlocutory judgment,

one sees that there were not all that many facts
and Your Honour took the view and Justice Deane

went in that direction also that that was not

sufficient for validity. Now, in result, Your Honour,

none the less in that circumstance the majority of

none the less valid. the Court took the view that that the regular - it was not ..... - that the statutory prohibition was But, perhaps if we can follow the thread of

Your Honour's approach because Your Honour was - - -

HER HONOUR:	I do not see why though because it was a minority - - -
MR GRIFFITH:	Because Your Honour was dealing with the issue of what evidence is sufficient and that is the
issue which comes here so that we do get some assistance from it, Your Honour. And what we say is, Your Honour, that one can see, when one adopts
that approach, that it is possible to say, "Well,
there there was insufficient material because there

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wasn't much". That is a possible result and,

Your Honour, it is just merely a question of how

many Judges of that persuasion as to whether

it prevails or does not but dealing with

possibilities we, of course, Your Honour, accept

that one can analyse the facts in this way.

But what Your Honour did in that case was to say,

"Well, there ',s a very general prohibition." What,
in effect, there is a general environmental
protection provision and one picks it up from

Your Honour's judgment on page 347 to page 348 and Your Honour was able to take the view, "Well,

there's just not the facts to support that."

Now, here, Your Honour, we make strong

contrast to that position which you saw in

RICHARDSON because the case stated has a lot of

material concerning the World Heritage qualities

and the dangers to those qualities. We have aready

made the point, Your Honour, and what is more it is

established in this case, unlike RICHARDSON, that

the whole of the property is of World Heritage

status. Your Honour, what we say is that one

may say, in our submission, that this evidence

is the best evidence of World Heritage status. In

fact, one can go further, Your Honour, and say

that it is the only relevant evidence of World

Heritage status. So, in other words, we would cavil

at the plaintiffs - - -

HER HONOUR:  You could go further and say evidence on that is

no longer relevant - - -

MR GRIFFITH:	Of course, Your Honour, yes.
HER HONOUR:	- - - which was your earlier submission.
MR GRIFFITH:	I was just about to go to that, Your Honour, and say, yes, that - so, in other words, this
issue which, in Your Honour's view in RICHARDSON,
was a matter decisive to the result in Your Honour's
view, and one which was relevant for the other -llstices but the majority took a different view as to the
extent of the evidence, we submit, Your Honour,
just does not arise here because we say that this is an issue which is, in effect, dealt out on
listing. And why do we say that? Because the
Full Court of this Court have said so, that is is
not a matter for inquiry to, in effect, pick through
and determine World Heritage status. So that
what we see the Full Court as having determined is
that whilst the World Heritage status of property is an objective fact ascertainable by reference to
qualities, the evaluation of those qualities by the
-competent authorities under the Convention is the
best evidence of the status, and they say that at
page 476 of the judgment of the majority, including Your Honour.

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Secondly, Your Honour, we say that what the

Full Court say is that the World Heritage Cormnittee's decision to include the property assures the

international cormnunity of the World Heritage status

of the entire property. This is also at page 476.

Thirdly, Your Honour, the Court says at page 477
that the decision of the Cormnittee as to the World

Heritage status of the property must prevail over

that of a municipal court. Now, this decision of

the Connnittee, Your Honour, is constituted by
the identification of those qualities or features

which give the property World Heritage value and

the weighing of those positive aspects against
counterveiling negative factors to determine whether

the property as a whole has World Heritage status,

and we submit, Your Honour, that if the Cormnittee's

decision as the status is conclusive so must be

the Connnittee's identification of qualities which

gave it that character and any decision it makes

concerning the counterveiling factors. So that

we are back to the view of Your Honour of saying

not only is that the best view of this assessment

of qualitative factors within the area, we go further

and say it is the only evidence that the Court

should have about it,- of the features which

give it World Heritage value.

So, we say, Your Honour, it is not just the

case that the determination is conclusive of World Heritage value of the whole as a general statement by reference to the terms of the Convention, we say

it is conclusive of the World Heritage status in
respect of these matters including specifically the
issue of logging, the effect of logging some of the

areas and the desirability of World Heritage status

being established for, amongst other specific
purposes, rehabilitation and that is specifically

referred to in the ICUN Connnittee's consideration.

Your Honour, when one looks at the nomination which is annexure "A" - does Your Honour have the

two volumes?

HER HONOUR:	Yes, I do.
MR GRIFFITH:	I do not intend, Your Honour, to take you to them

in great detail but if I could give you page

references to annexure "A" which was the nomination

where Australia sought to provide information

as to qualities and features which it believed

carried World Heritage value. They are at pages 12, 14,

16, 17 and on 15 and 16, Your Honour, there were

specific references to the effects of logging.

Pages 27, 35, 37, 38. Probably 12 and 14 are a most

useful reference to that. Your Honour, there are
various references in support of this which one finds

in appendix 4 to the nomination.

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Now, Your Honour, the various annexures, and I

will not take Your Honour through them because that

was part of the consideration by the Full Court, show

that the qualities were subject of scrutiny by the
competent authorities under the Convention and as

the Full Court stated at page 475 of its judgment,

the Bureau's reconnnendation that the property

be listed was made following its review of the

nomination and evaluation of the property, and

the evaluation, of course, is by the IUCN.

Your Honour, the final technical evaluation

appears at page 282 which is volume 2 of the case

stated book and that - perhaps, we really, in a way,

refer to the whole of this evaluation as indicating

the qualitative assessment that went on but it had

valued the special importance of the region, page 282, it

had valued the integrity of the area with special reference to human impacts including logging as well as other disturbances: electricity

transmission et cetera on page 283. One sees under

"Human Impact", the first paragraph, Your Honour,

a reference to the fact that:

much of the nominated area has been affected

by selective logging -

and then in the next paragraph, Your Honour, there

is reference to illegal logging and other effects

of human disturbance. But having noted that,

Your Honour, none the less the conclusion is made

that the whole of this area is of World Heritage

status including these areas that the plaintiffs

now refer to that have already been logged, and

one picks that up, Your Honour, on page 284, dealing

with this issue of boundary assessment where it says:

A third item related to boundary assessment

· is the inclusion of previously logged forest

in the nomination. Certainly extractive

forestry operations within the nominated

area have occurred and have resulted in some

diminution in natural values.

It refers to "clear cutting" not having:

been undertaken but the selective

nature of foresty operations still removes

some 50% of the canopy and most large

trees. Previously logged areas, especially

those logged prior to the heavy industrial
logging period, still retain important

values but it is important to recognize

that much of the area is not pristine and

wilt take a long period to recover.

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In other words, the Committee refers to the element

of prohibition of any further logging in logged

areas for the purposes of rehabilitation. And

then it refers to, in the next paragraph, Your Honour,

including forest types of a different sort.

Now, hav.ing considered these asoects, Your Honour and the inclusion of non-rainforest~ the IUCN, on	'
page 285, then goes on to consider the proposal
that there should be three or four core areas which
should not be put to extractive use from foresty leaving the remainder for effective use. It
specifically states, Your Honour, on page 285
that this would not comply with World Heritage status. Having done that, Your Honour, the Committee then drew together on page 287 and page 288
its evaluation of the qualities and features including
consideration of the fact that	logging, as is

alleged by the plaintiff, had been carried out, and

reaches the conclusion and recommendation that
the whole of the site be inscribed in the World

Heritage List. There is the recommendation on

page 288.

On the basis of this evaluation, the Bureau

made its recommendation on page 289 and the Committee

decided to list the property which one picks up at

certificate now days, because of that costs - - -

HER HONOUR:  Yes, you do indeed. I will certify that this was

a matter appropriate for the attendance of counsel.

There is no other issue, is there? Should I dissolve

any of the other orders? Are there any other orders

that require attention?

MR KEANE:  No, Your Honour, I do not think there are. The order

Your Honour has made, I think, is consistent with the

order that has already been made for remitter in that

it adds to it. I do not think there are any other

orders outstanding from this Court that Your Honour

needs to concern yourself with.

HER HONOUR:	Thank you.
MR GRIFFITH:	I think that is so, Your Honour. There is no

need to refer to paragraph 2 of your previous order
because the transcript makes it clear that the whole

issue is subsumed in the one issue of validity.

HER HONOUR:  Yes, thank you. Court will now adjourn.

AT 2.23 PM THE MATTER WAS ADJOURNED SINE DIE

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