State of Queensland & Anor v Commonwealth of Australia
[1989] HCATrans 100
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 and
ATTORNEY-GENERAL FOR THESTATE OF QUEENSLAND
Plaintiffs
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
Case stated
MASON CJ
Queensland(2) BRENNAN J
DEANE JDAWSON J
TOOHEY J
GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 9 MAY 1989, AT 10.17 AM
Copyright in the High Court of Australia
ClT 1/1/Vlt 1 9/5/89
MR G.L. DAVIES, QC: May it please the Court, I appear with my learned friend, MR D.J. McGILL, for the
plaintiff. (instructed by the Crown Solicitor for
Queensland)
MR G.F. GRIFFITH, QC, Solicitor-General for the Commonwealth:
If the Court pleases, my learned friend,
MR M.E.J. BLACK, QC, and I appear with MR C.M. MAXWELL
for the defendants. (instructed by the Australian Govennent Solicitor)
MASON CJ: Yes. Mr Davies.
MR DAVIES: May it please the Court, may I hand up some copies of our outline of submission?
MASON CJ: Thank you. Yes. MR DAVIES: Your Honours, may we hand up some copies of the Act? What we have done is include the amendments to the Act
but we have also left in the original provisions,
though crossed them through, so that Your Honours, if
it is thought desirable, can compare the amended
provision with the original one.
MASON CJ: Thank you. Yes.
MR DAVIES: Your Honours, I also hand up some books containing some supplementary material to which we propose to
refer. The first question posed by the case stated is whether, because and only because the property
is included in the World Heritage list, a proclamation
may be validly made in respect of the property
pursuant to section 6(3), that proclamation empowering the prescribing of acts in relation to that property.
The second question which is posed assumes a negative
answer to the first. It asks what is the relevant
inquiry to determine the validity of the proclamation?
Your Honours will have seen from our outline that
our submissions will be that that first question should
be answered in the negative and that the second question should be
answered, we would say - our first submission - the answer is whether the property is natural or cultural
heritage or property, the protection of which is
necessary for that. Our alternative submission is
that the answer is whether the property is capable
of being reasonably considered to be natural or
cultural heritage.
(Continued on page 3)
ClTl/2/VH 2 9/5/89 Queensland(2)
MR DAVIES (continuing): Your Honours, can we start with the proposition which is received law since
the TASMANIAN DAM case that the proclamation
under section 6(3) can be justified under the
external affairs power only by reference to
the Convention for the protection of the
world cultural and natural heritage and
therefore only if it conforms to the
Convention and carries its provisions into
effect. Can I,without taking Your Honours to
it, mention the passages in the TASMANIAN DAM case
which are authority for that proposition? The
reference, Your Honours, is, of course,
(1983) 158 CLR 1 and the relevant passages
are in the judgment of Your Honour the Chi£ Justice
at pages 129 to 131, Your Honour Justice Brennan at
pages 226 and 232, and Your Honour Justice Deane
at pages 258 to 259.
We accept, of course, that that may not
be restricted to legislation which provides for
the performance of obligations which the
Convention imposes or the securing of benefits
which the Convention guarantees, but it must be
confined to the scope of the Convention and it
must carry its provisions into effect.
Your Honours, it is our submission that
except for the purpose of identification and
interim protection which is necessary while that
is being done, the scope of the Convention is
confined to property which is defined· in
articles 1 and 2, that is property which in
fact answers the description of cultural or
natural heritage. We use that- phrase in fact "answers
the descriptiorl'because it is a phrase, or similar
to a phrase, which was used by Your Honour the
Chief Justice and by Your Honour Justice Brennan
in the TASMANIAN DAM case. Could I take Your Honours
breifly to those passages in the TASMANIAN DAM
case? In the judgment of Your Honour the Chief Justice at page 133, in the first full paragraph, Your Honour said:
(Continued on page 4)
ClT2/l/JM 3 9/5/89 Queensland(2) MR DAVIES (continuing):
Despite these features, it seems to me
that article 5 itself imposes a series
of obligations on parties to the
Convention, one of which is theobligation dealt with in par (d)
which includes the taking of legal
measures. The imposition of this obligation is an element in a general
framework which has as its foundation
(a) the responsibility of each State
under art 3 to identify and delineate
the different properties situated in
its territory which answer the
descriptions of "cultural heritage"
in art 1 and "natural heritage" in
art 2.
And I will not go on. Then, Your Honour
Justice Brennan at page 228, in the last
paragraph on that page said:
Although the obligation imposed by the
Convention upon a State Party with
respect to the cultural and natural
heritage situated on its territory is
expressed in general terms, once a
property answering the Convention
description of cultural heritage or
natural heritage is identified, the
primary obligation of the Party is
quite precise.
And Your Honour went on to state what the
obligation was.
Your Honours,that that is clearly riEht, in
our respectful submission, appears from the
terms of the Convention itself and can I take
Your Honours to it to indicate terms which, in our respectful submission, show that that is so?
It is at page 22 of the book of the Act which I have handed up to Your Honours.
(Continued on page 5)
ClT3/l/JH 4 9/5/89 Queensland(2) MR DAVIES (continuing): First, Your Honours, articles 1 and 2
themselves·- the definitions, although they are
defined in terms which include an opinion that
opinion in each case involves expertise in history,
aesthetics and science and though it has no legal
significartce, Your Honours, that really seems
to have been acknowledged by the Commonwealth
in the context of the Lemonthyme Forest by the
setting up of the Helsham Commission.
Next, Your Honours, can I refer to really
a number of articles which use the terms "cultural
and natural" heritage as being:
referred to in Articles 1 and 2 and situated
on its territory -
article 4 says that. It says:
cultural and natural heritage referred to
in Articles 1 and 2 and situated on its
territory.
And others use the term "defined in articles 1 and 2".
For example, article 13.2 talks about - in the
second line -
cultural or natural property defined 1n
Articlei 1 and 2.
And others simply use the phrase "property forming part of the cultural or natural heritage". Article 11
does that - which is the one dealing with listing.
Article 11.1, Your Honours can see for example:
property forming part of the cultural and
natural heritage.
Other articles have the same phraseology, for
example articles 19 and 20 of the Convention.
Again, Your Honours will see in both of those,
"property forming part of the cultural or natural heritage".
(Continued on page 6)
ClT4/l/AC · 5 9/5/89 Queensland (2)
MR DAVIES (continuing): Our point simply is that these are objective phrases indicating that they exist
as part of cultural or natural heritage. They are
there to be identified. Which is our next point -
that articles 4 and 5 and a number of subsequentarticles, use the terms"identify", "identification"
and "delineate". I should have started with article 3 - article 3 does that; article 4 does that;
article 5 does that and it is perhaps sufficient to
refer to those.
But again, we point to those as being objective tests, not some phrase such as "determine or decide"
what is cultural or natural heritage. In other
words, they imply that the responsibility of a
State party,under article 3:
is to identify and delineate
something which is objectively identifiable and
capable of delineation. And, finally, Your Honours,
can I refer to those articles which provide that
international assistance may be requested and
provided to assist in the task of identification.
And again we say, if that is so, if other people can
assist in identification, it must be something
which can be done objectively. Itris not a subjective
decision. That includes - the assistance may include
the training of specialists in that field.- in the
field of identification.
That emerges, Your Honours, from articles 13.2
wher~ . Your Honours will see -that 'request for international assistance under paragraph 1 of this
article may be concerned with identification of .....
property defined in ~.rticles 1 and 2." Article 22,
if Your Honours go to article 22(c), Your Honours
will see that assistance may include the:
training of staff and specialists at all levels in the field of -
amongst other things -
identification.
And article·2.3.similarly.
(Continued on page 7)
ClT5/l/DR" 6 9/5/89 Queensland(2)
MR DAVIES (continuing-): And, Your Honours will see, if you go back to article 20, that the provision of assistance,
except for identification:~ay only be granted to
property forming part of the cultural natural
heritage which the World Heritage Corrnnittee has
decided, or may decide, to enter on its lists."
But, provision for assistance for identification,
quite obviously, may be provided to properties which
are not listed and, indeed, properties which the
World Heritage Corrnnittee has not formed any view about
with respect to listing. Now, our point is that, because the existence of propert½ in fact, answering
the description of cultural or natural heritage is a
foundation of legislative power, that question is
examinable. In other words, we rely upon the
COMMUNIST PARTY case, although we have not mentioned
this in our outline. We rely upon that,and other cannot uphold the validity of the law by reference
to a fact or a state of affairs unless it is satisfied
of the existence of that fact or state of affairs.cases that are like it, to say that really the Court the existence of property which in fact answers the description of cultural or natural heritage.
Your Honours, again without taking Your Honours
to those cases because they are familiar to Your Honours,
can I just give Your Honours the references to some of
those cases in that line of authority. The first is THE AUSTRALIAN COMMUNITY PARTY V THE COMMONWEALTH,
(1951) 83 CLR 1 at 222, COMMONWEALTH FREIGHTERS V SNEDDON,
(1959) 102 CLR 280 at 307, HUGHES AND VALE V NEW SOUTH WALES (No. 2), (1955) 93 CLR 127 at 165, and in the two
cases to which we will be referring a little more, in
the TASMANIAN DAM case, Your Honour Justice Brennan
said something about this at pages 231 to 232.
(Continued on page 8)
ClT6/l/FK 7 9/5/89 Queensland (2)
MR DAVIES (continuing): In RICHARDSON V rFORESTRY COMMISSION, 164 CLR 261, there was reference to this principle
by Your Honour the Chief Justice and Your Honour
Justice Brennan in your joint judgment at pages 292
and 294, by Your Honour Justice Deane at pages 307
to 308 and again at 310, and by Your Honour Justice Gaudron at page 341.
The point we are making, Your Honours, really
can be illustrated by an example. Assume there is an archaeological find which the Commonwealth
says is of a particular age; assuming, if it
has that age it is of outstanding universal value
and it comes within the definitions in articles 1
and 2 and, indeed, it may even be something which
ought to be listed. But if it were demonstrated as a fact that it did not have that age then,
in our respectful submission, there will be no
basis for Commonwealth authority in respect of
the implementation of the treaty in respect of
that so-called find.
That is something, in our respectful submission,
which could be demonstrated by judicial process
before this Court.
BRENNAN J: But· the real problem arises if you can postulate that an Austr~lian judicial finding would be adverse
to the particular property being part of the cultural or
natural heritage and an international view being
taken by the Committee to the contrary.
MR DAVIES: Your Honour, in our respectful submission, and I want to come to that a little later, the
consequences of a decision by the international
Committee do not include consequences which involve
the obligation to protect or conserve. The
consequences which flow from listing are, in our
respectful submission, quite limited consequences
and so, so far as the argument we advance, in
our respectful submission, listing has no relevance.(Continued on page 9)
ClT7/l/SDL 8 9/5/89 Queenslana(2)
MR DAVIES (continuing); Your Honours, in our respectful submission, the proclamation which is made
pursuant to section 6(3) is a step taken inpurported compliance with the obligation which
is imposed by article 5(d). Your Honours will
be familiar with that article because Your Honours
will recall that that was the article which
Your Honours held to create an obligation in
the TASMANIAN DAM case. That provides - this is
on page 23 of the booklet of the Act:
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,
administrative and financial measures
necessary for the identification, protection,conservation, presentation and rehabilitation of
this heritage;
Your Honours, as I said, held that to constitute an obgliation in the Convention and, in our respectful
submission, it is really a step in the reasoning
in the TASMANIAN DAM case that the proclamation
which was made there was - I should say, the
implementation which was taken there were steps
taken in purported compliance with the obligation
imposed by a.rticle 5 (d), and although that does
not appear abundantly clear from anything
specifically said in the TASMANIAN DAM case,
it does appear, in our respectful submission,
at least by inference, from, for example,
the reasoning of Your Honour Justice Brennan.
If I can take Your Honours to that, at pages 238
to 239, commencing at the last paragraph on page 238. I will not read it, Your Honours, but it is really
the whole of that paragraph going down to just
below the middle of the following page which,
in our respectful submission, makes the point that
we are making. That is really a step in the
process of reasoning in that case.
That obligation, Your Honours, in S(d), and
indeed the other obligations in a.rticles 4 and 5,
in our respectful submission, arise irrespective
of actual identification or delineation and
a fortiori irrespective of listing. So much was said by Your Honour Justice Gaudron in
RICHARDSON and, in our respectively submission,
that view is clearly correct. Your Honour, in that case - 164 CLR 261 - at page 341
CIT8/l/JM 9 9/5/89 Queensland(2) at the commencement of the first full paragraph
on that page said:
It is not necessary that an area be
identified or delineated, much less
nominated or accepted for inclusion on
the World Heritage List, for it to
constitute part of the heritage to which
the Convention applies.
That clearly follows, in our respectful submission,
from the articles to which we have referred and
the passages to which we referred from Your Honour
the Chief Justice and Your Honour Justice Brennan's
judgment, that those o.bligations in articles 4 and 5,
though not necessarily or not alone in some later
obligations, but those obligations follow in
respect of any property which is in fact cultural
and natural heritage, whether identified or whether
submitted for listing, or listed.
(Continued on page 11)
CIT2/2/JM 10 9/5/89 Queensland(2)
MR DAVIES (continuing): Your Honours, of course it is the task of the State party, as appears
from articles 3 and 4, to identify and
delineate. I have already referred to those to indicate that those terms are stated
objectively rather than indicating that there
is some subjective discretion involved. I really refer to them now to indicate that it
is the obligation of the State party, not anyone
else, to perform that task of identification
and delineation and if it were not abundantly clear from those articles themselves it would
appear, in our respectful submission, from
the joint judgment of Your Honour the
Chief Justice and Justice Brennan in RICHARDSON,
where on page 289 at the bottom of the page,
second-last sentence on the page, Your Honourssaid:
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.
That is the State party upon whose territory
the property is. And, we have also referred
to the report of the committee of expertswhich form part of the travaux preparatoire
for the Convention and which came before this
Court in the TASMANIAN DAM case. It is part of
our additional material and on page 3 of our
additional material the committee of experts
referred to article 4 and really, perhaps, say
not a great deal more than a correct paraphrase
of that article but, again, it is support forthe proposition we make that the task of
identification and delineation, the obligation
of identification and delineation, is that of
the State party. But it is clear, in our respectful submission, from what we have said already
that that does not involve any discretionary
element, in particular whether "natural
heritage" is of outstanding universal value
within the meaning of that term in article 2
must be determined from the point of view of
aesthetics, science and conservation.
Your Honours, by contrast with that
decision of the State party to identify and
delineate, the decision of the World Heritage
Committee under article 11 to list is a
discretionary decision. It is not made by
ClT9/l/JH 11 9/5/89 Queensland(2)
deciding whether the property submitted to it is 1'cultural" or "natural heritage" because those terms are defined in articles 1 and 2 and, in fact, we would submit that the World Heritage Committee assumes, and is entitled to assume, that the act of identification has been done by the State party. What the World Heritage Committee does
is determine in terms of criteria, which it
establishes, so it has a discretion to
establish its own criteria, it then determines
in terms of those criteria whether property
ought to be included on the World Heritage
list. In our respectful submission,it does this
by determining whether there are within the
property submitted sites which it concludes, in
terms of those criteria, to have outstandinguniversal value.
(Continued on page 13)
ClT9/2/jH 12 9/5/89 Queensland(2)
MR DAVIES (continuing): As I said, its decision in that respect
therefore necessarily involves a subjective discretion
and, in particular, the exercise of that discretionis not limited to and, indeed, need not include
aesthetics, science or conservation.
BRENNAN J: I do not understand why you say it is discretionary in any relevant sense, Mr Davies. Well, in what
relevant sense is it discretionary if the connnittee
performs the function which is assigned to it under
article 11.2 for the purposes of implementing the
Convention?
MR DAVIES: Because it can lay down its own criteria. BRENNAN J: But nct:extraneous to the purpose for which it exercises its power?
MR DAVIES: Well, I suppose that is certainly true. But it is
discretionary within the purpose of Convention.
I mean, I suppose one can have degrees of discretion, Your Honour, but what I am saying is, it is not an
objective opinion expressed on a matter which can
be readily reviewed. It can lay down its own
criteria within the broad outlines of the Convention,
so it could make them, for example, very much
narrower or it could add additional factors and
it did, in fact, as I will endeavour to show when
taking Your Honours through the material- additionalfactors as well as narrowing the area as one would
expect it would. I mean, obviously, every property which is identified and delineated as forming part
of the cultural or natural heritage does not get
listed and is not entitled to be listed.
So that, in that respect is a narrowing but, in
our respectful submission,there is a further
narrowing by additional criteria really being added,
additional factors being added. I might be able to demonstrate that, I hope, by taking Your Honours
through the material or, at least, part of it. Can I take Your Honours first of all to the guidelines
which the Connnittee has laid down for itself? They are in volume 2; they connnence on page 291. The criteria for cultural properties are set out at
pages 297 to 298 and a little further. Then, commencing at page 300 are the.criteria for the
inclusion of what is called "natural properties",
properties forming part of the natural heritage
in the World Heritage list. Paragraph 32 simply
states the definition in article 2. Paragraph 33 says:
A natural heritage property - as defined above -
which is submitted for inclusion in the
World Heritage List will be considered to be
of outstanding universal value for the purposes
of the Convention.
ClTl0/1/VH · 13 9/5/89 Queens land ( 2) That really means for the purpose of article 11 of the Convention:
When the Committee finds that it meets one
or more of the following criteria and fulfillsthe conditions of integrity set out below.
And then there are set out four criteria which are:
major stages of the earth's evolutionary
history ..... significant .... biological evlution ..... areas of exceptional natural beauty -
and habitats of -
threatened species or animals or plants.
Now, the first point we really make, I suppose, is
that those criteria are significantly narrower than
the definition in article 2. I mean, for example, if you go back to article 2, the definition includes:
precisely delineated areas which constitute the
habitat of threatened species of animals .....
of outstanding universal value from the point
of view of science or conservation.
Whereas criterion 4 says:
contain the most important and significant
natural habitats.
(Continued on page 15)
ClTl0/2/VH 14 9/5/89 Queensland(2)
MR DAVIES (continuing): So that is the narrowing but in
addition to that the site is required to fulfil
"conditions of integrity" which are set out in
paragraph 34, and this is really entirely additional
to what is contained in article 2. Page 302 then deals with the procedure and one then goes to page 304 where· there are "Guidelines for the
evaluation and examination of nominations" and
it is said in paragraph 44:
The World Heritage List should be as
representative as possible of all cultural
and natural properties which meet the Convention's
requirement of outstanding universal value
and the cultural and natural criteria adopted
by the Committee.
DAWSON J: Why did you say that it is an objective process that is required in relation to the identification
of the relevant matters by the State party?
MR DAVIES: I said that because of the terms of the Convention which indicate that words such as "identification"
and "delineate" were used rather than words such
as "determine" or "decide" and the other provisions
I referred to in the Convention are - - -
DAWSON J: That the obligation is imposed fairly and squarely
upon the party itself.
MR DAVIES: Yes. The obligation is imposed on the party and the obligation is imposed on the party whether
in fact that party identifies or delineates or
not. The article in 5(d), for example, is an obligation which is imposed on a State party
who has property answering that description on
its territory - subject to qualifications, of course. I mean there are qualifications about
whether in fact the State party has resources and things of that kind, but subject to those
qualifications the obligation is imposed because
that - - -
DAWSON J: What I had in mind is simply that the Convention does not envisage any other identifying party
than the State party itself.
MR DAVIES: No, it does not. That is true, Your Honour, but what it does do is say that the obligation
is to identify and delineate not to determine
for itself what property on its territory happens
to be "cultural and natural heritage".
DAWSON J: What is the difference?
ClTll/1/AC. 15 9/5/89 Queensland (2)
MR DAVIES: It is an important difference in this respect,
in that the way in which it is phrased in the
Convention indicates that there is property which answers that description there, you have an obligation
to precisely delineate the boundaries of it and
say -
DAWSON J: What the Convention says is someone has to determine this question and the only person you can find identified as the person who is to determine
it is the State party.
MR DAVIES: I am not suggesting that in some respect that is a determination. What I am saying, Your Honour,
is that it is a determination which is easily
reviewable because it is an objective determination
not a subjective one.
DAWSON J: But it is not objective in the sense that someone has to determine the question in accordance with
the criteria. In that sense it may be objective
but the person who has to determine i 4 which
is identified by the Convention,is the State
party.
MR DAVIES: I accept that is true, Your Honour, but all I am saying in answer to Your Honour is that
because it is stated - because it is defined
in objective terms and because objective terms
are used it is very easy to see whether that
State party has correctly or incorrectly performed
that process.
DAWSON J: But the determination becomes no more objective
because A rather than B determines it.
MR DAVIES: No, it does not, Your Honour. All I am really
saying in this case is that - I was contrasting
the determination by the State party with the
determination by the World Heritage Committee
to indicate that the first question is really
very much like a finding of fact, whereas in determining something which is already there, the second case it is much closer to a discretionary
value judgment.
BRENNAN J:
Mr Davies, the obligation to identify and delineate is an obligation arising under the international
Convention, that decision is not a decision reviewable by a municipal court, is it?
(Continued on page 17)
ClTll/2/AC 16 9/5/89 Queensland(2)
MR DAVIES (continuing)·: The decision to - - - ?
BRENNAN J: Identify and delineate?
MR DAVIES: Your Honour, I think we would rather put it by saying that the obligations which are~mposed on the
State party exist because property is culturalor
natural heritage, exist as cultural or natural
heritage, whether identified or delineated or not;that that question, whether the obligation is imposed,
can be determined by simply looking at the question
whether, in fact, that property is cultural or
natural heritage.
The task of identification and delineation really only arises for the purpose of making the
submission to the World Heritage Conu:nittee and with
the consequences which that gives rise to which, as
I indicated to Your Honour earlier, we would submit
are irrelevant for present purposes. They are not relevant for the purpose of the obligations under
articles 4 or 5.
BRENNAN J:
The proposition I was putting to you is whether or not the fact is susceptible of determination or not,
the power is one which, the exercise of which is called for by the international instrument, not by a municipal law and the exercise of the power under the international instrument is not susceptible of review judicially by a
municipal court.MR DAVIES: Yes, and I was attempting to answer Your Honour by saying that, for our purposes, the act of identification
and delineation, like the act of listing is irrelevant;
that the obligation imposed under articles 4 and 5 are
imposed not because property is delineated or identifiedand not because property is listed and it is, really, to
that that we direct our submissions.
Your Honours, I think I had got as far as page 304
in the guidelines and paragraph 44 where it said: The World Heritage List should be as representative as possible of all cultural
and natural properties which meet the
Convention's requirement of outstanding
universal value -
and, again, that is the article 11 requirements of
outstanding universal value -
and the cultural and natural criteria adopted
by the Connnittee.
ClT12/l/SH 17 9/5/89 Queensland(2) So, they have to meet the criteria which are
adopted by the committee.
Your Honours, can I go from there, then, to
the nomination form which appears in volume 1, at
page 8, and it follows a format provided. After,
really, what appears to be passing reference to
cultural property, the statement is made - can I
just go to page 27 where, under the heading Natural
Property, it says:The nominated area fulfils all four criteria described for inclusion of properties on the
World Heritage List as a 'natural heritage'.
And it sets those out, (1), (2), (3) and (4) but, on
the other hand, a point we really make, there is no attempt made nor need there be any attempt made to
relate the property specifically to the various
elements in the definition of "cultural heritage"
in article 1 or "natural heritage" in article 2 ofthe Convention.
Your Honours, the next document is the report
and recommendation of the International Union of
Conservation of Nature and Natural Resources and I
do not think I need take Your Honours to that.
Annexure C is a report of the Bureau of the World
Heritage Committee. I do not want to take Your Honours to that. Annexure Dis a further report by the
defendant to the World Heritage Committee; that is
at page 181 and could~ then, take Your Honours back
then to volume 2, to a further report by the IUCN.
(Continued on page 19)
ClT12/2/SH 18 9/5/89 Queensland(2) MR DAVIES (continuing): It connnences on page 282. I mention
this because, on page 284, it appears that the IUCN
had some concerns about the boundary, but the point
we really make about that is that though it
expressed concerns to Australia about the boundaries,
it did not ever, itself, attempt to determine a more appropriate boundary and that really is because, as
we mentioned earlier, the question of identification and
delineation is one for the State party.
Then, after the guidelines, Your Honours, the only
other relevant document, from our point of view, is the
transcript of the session of the World Heritage Connnittee
on 7 December 1988 that starts at page 325. Your Honours will see that, in the first paragraph,
second sentence, Dr Thorsell says that thes.ite meets
all four cf:iteria of the World Heritage, and he says
which one is the easiest to meet. On the next page he deals with the management arrangements, and
really, what the transcript reveals and perhaps all
it reveals, in our submission, is that the question
was determined in terms of the guidelines, not in
terms of articles 1 and 2 of the Convention. There are some remarks by the United States
delegate which are illuminating in that respect. They appear at pages329 and 330, and on 331. I do not propose to read those to Your Honours, but they
really make the point, in our respectful submission,
which we have just made. It appears, as is said,
I think, more than once, that cultural heritagewas not the thrust of the nomination, it was really
on the basis of natural heritage. That appears, I think,
finally at page 335 at the top of the page. It is probably of no legal relevance, Your Honours, but
on 336 it rather indicates that the World Heritage
Connnittee did not think that what they were doing
was having any significance in terms of Australian law.
Your Honours, that there are, in effect, two
stages for listing, the process of identification and
delineation in the first place and then the
nomination and listing by the World Heritage Connnittee, is perhaps self-evident. That is the only reason, I think, we included the text,"International Wildlife
Law" by Simon Lyster, in our book of additional
material, but that text on page 212 and 213 makes
that point. Under the heading: a) Listing criteria
(i)Value of the site -
the learned author refers to the "two hurdles"
that havP to be overcome, in that first paragraph
~nd then in the second full paragraph on the following
page, deals with the second of those hurdles.
C1Tl3/l/F-K 19/20 9/5/89 Queensland(2)
MR DAVIES (continuing): Your Honours, I made the submission before that listing itself has no relevant
consequences. By that I meant consequences
relevant to a regime of control, such as this:
the regime of control enabling the prescribing of
acts in relation to a property on the territory
of the State party. The only consequences oflisting are two, in our respectful submission.
The first is something which is really just a
formality, that is the distribution of a list
every two years. That appears from article 11
itself, article 11.2.
The second consequence, and this is the
only other consequence of listing, is that it,
that is listing or the possibility of it, there
is a requirement - or I should say, an additional requirement, a requirement additional
to the property being part of the cultural or
natural heritage before international assistance
may be provided for protection but not identification
of property. And that appears from article 20 to
which I referred Your Honours a little earlier.
But Your Honours, looking at article 20 and, indeed, article 19, it is clear that even in that
case, even the case of international assistance
for protection, the property must first be, infact, part of the cultural heritage or natural heritage. So listing alone, in our respectful
submission, has no relevant significance.
DEANE J: But that is an advantage acquired through listing, is it not? MR DAVIES: It is an advantage acquired through listing, Your Honour, but not a relevant one in the context
of this case.
DEANE J: What if there were a dispute between Australia
and other parties to the Convention that came before the world court? Would it be open to
Australia, enjoying the advantages of listing, todeny the basis on which it had procured listing? MR DAVIES: Your Honour, can I perhaps not answer this by saying that whether,:in fact, even if the answer
to Your Honour's question was no, that it could
not deny that, that could not, in our respectful
submission, affect the question whether, in fact,
an obligation was imposed by article 4 or 5 and
what facts caused that imposition.
DEANE J: I may be wrong. I have been following your ar~ument on the basis that it all goes to getting
you out of 6(2)(b) of the Act. Is that right?
C1Tl4/l/DR 21 9/5/89 Queensland(Z)
MR DAVIES: We say that 6(2)(b) does not apply, yes. DEANE J: But that is what this argument is directed to, is
it not?
MR DAVIES: Well, not only directed to that, of course,
Your Honour, because we really say that
it is rather broader than that in the sense that
we say that the obligation, in this case, is
- if an obligation is imposed, that is an
obligation under 4 or 5, it is imposed because
property in fact answers the description of cultural or natural heritage. Perhaps
I should have added, and that, relevantly,
proclamation under section 6(2) can only affect
the imposition of obligations. It says nothing
of the obtaining of benefits undertheConvention.
DEANE J: But if, having sought and obtained listing, Australia is under international law precluded from denying
the basis on which it obtained listing, would not
that be relevant to whether 2(b) applied? Because
it says:
whether by reason of the Convention
or otherwise.
(Continued on page 23)
ClT14/2/DR 22 9/5/89 Queensland(2)
MR DAVIES: Article 2(b), Your Honour? DEANE J: 6(2)(b) of the Act. MR DAVIES: Well, perhaps I should answer Your Honour directly by saying that if one were to take
the example that I gave earlier of the
archeological find, the Shroud of Turin type
example then,in our respectful submission,
Australia would not be preluded from saying
that it was bound by the Convention because
it could say that, in fact, the basis upon
which it entered into the Convention in the
first place turned out to be wrong.And, indeed, in our respectful submission, it is difficult to see how that has any adverse consequences in the sense that - I do not know
what dispute Your Honour had in mind - but, in
our respectful submission, it is difficult to
see how there would be any dispute which would
involve Australia which, in our respectfulsubmission, would result in an unfair result
if Australia were precluded from saying that.
DEANE J: Well, one obvious example would be if it had actually received money for the maintenance of
it as world heritage.
MR DAVIES: Well, I mean, it may well be that that money is repayable on some other basis, Your Honour.
Your Honours, I was about, I think, to refer you
to some passages in the TASMANIAN DAM case,
in the judgments of the former Chief Justice and
Your Honour the present Chief Justice, as to
the consequences of listing. I have given Your Honours the reference, of course, to the
TASMANIAN DAM case. The first reference, Your Honours, is in the judgment of His Honour
the former Chief Justice at pages 88 to 89,
where His Honour said:
Fifthly, the fact that a property is listed on the World Heritage List imposes no duties on the State on whose territory that property is situated.
And His Honour then dealt with article 6.2.
Then, Your Honour the present Chief Justice, at
page 135, in the middle of the page, said:
The effect of entry of a property in the
World Heritage List is (1) that it
qualifies the property for entry in the
World Heritage in Danger List; and (2)
it enhances the prospects of the State in
which the property is situated of
securing international assistance pursuantto the Convention.
ClTlS/1/JH 23 9/5/89 Queensland(2) That is so, of course, but Your Honour, of
course, had in mind excluding identification -
international assistance for protection and
conservation - but it did not enhance the
prospects of obtaining assistance in thatother respect.
Your Honours, article 12, if I may
take Your Honours to that, recognizes that
there are:
purposes other than those resulting
from inclusion in -
either of the lists in paragraph 11 for which
property might -
have an outstanding universal value.
And, Your Honours would, of course, have
noticed that the phrase "outstanding universal
value" is included and, necessarily one would
think with different meanings, in the first
place the definitions in articles 1 and 2 and,in the second place, in article 11.
(Continued on page 25)
ClT15/2JJH 24 9/5/89 Queensland(2) MR DAVIES (continuing): In our respectful submission,
the purposes which article 12 has in mind are
those arising from the property in fact beingcultural heritage or natural heritage within
articles 1 or 2, that is, that obligations
may arise simply because property answers that
description. The obligation in article 5(d) is an obvious example of that. It would be,
in our respectful submission, a curious
construction of article 12 if the exercise of discretion against listing did not affect the obligation but the exercise of discretion in
favour of listing did. But in our respectful submission the point about article 12 which
we really make is that the purposes which it
has in mind as still being effective, nothwistanding
absence of listing for those purposes whichnecessarily follow from the property being
cultural heritage or natural heritage, is answering the description in articles 1 or 2.
Your Honours, if one accepts the proposition
that it is necessary that the proclamation be
capable of being reasonably considered to be
appropriate and adapted to achieving the object of the Convention, which seems to have been the
test which the majority of this Co.urt has adopted,
it cannot, in our respectfuly submission, be so
reasonably considered if it is not in respect of
land which is in fact natural heritage or cultural
heritage, because, in our respectful submission,
the fact or circumstance which engages the power -
to use a phrase which Your Honour Justice Gaudron
used in RICHARDSON - the. fact or circumstance
which engages the power is the existence of
property answering that description not,
in our respectful submission, the opinion of
the legislature that it did so. In our respectful
submission, it is to that that the law must be
reasonable capable of being viewed as appropriate
and adapted.
Your Honours, in our respectful submission,
we really should contrast that sort of decision
made by the State party and the existence of the
fact of it being cultural or natural heritage
with the sort of thing which this Court considered
in GERHARDY V BROWN. In other words, the question
of what is cultural or natural heritage is not
in any sense - to use Your Honour Justice Brennan's
phrase - political questions. Although they
involve opinions, they involve opinions whichinvolve expertise though, of course, as I said
earlier, there may be, notwithstanding the
property comes within the description, politicalfactors which enter into the question Gt protection -
political factors which enter into factors against
protection, such as the availablility of resources
CIT16/l/JM 25 9/5/89 Queensland(2)
and economic factors and so on. But the actual question, in our respectful submission, should
be contrasted with the sort of question which
this Court considered in GERHARDY V BROWN.
Can I take Your Honours briefly to that
case, reported in 159 CLR 70? I will not take
Your Honours to the facts of it because
Your Honours are familiar with them, but if I
can just take Your Honours through the judgments
very briefly. His Honour the Chief Justice,
as appears at pages 87 and 88, on the limited
facts before the Court,was prepared to include
that the ethnic group required special protection
and that there was no reason to conclude that
the legislation was more than necessary for that
protection.
(Continued on page 27)
CIT16/2/JM 26 9/5/89 Qtieensland(2)
MR DAVIES (continuing): He, in doing so, said that the case, though not one of:
constitutional validity of a statute
depends on facts -
was -
closely analogous to such a case.
He said that at about the middle of page 87.
Your Honour the present Chief Justice similarly
relied on matters of general public knowledge andon matters before the Court in arriving at your
conclusion in this respect which appears generally
at page 105 of the report. Your Honour, after quoting from van Dyke,refers to: general public knowledge -
and -
materials before the Court -
and so on. His Honour Justice Murphy relied on the
presumption of validity, as appears- from the pa sage
which is set out at the top of page 108. His Honour
Justice Wilson thought that, on its face, the legislation was valid. That appears from page 113,
the first sentence of his judgment after the quotation
8:t the top of the page. Your l-bnour Justice Brennan !=hought that there were some facts which cculd be objectively
seen, but there are other questio,-: which were,
as Your Honour thought, politica uestions. That appears perha~s best seen in the passages
which appears on pages 137 to 139. At 137 there were some objective circumstances capable of
ascertainment, Your Honour thought. That is at
about point 7 or point 8 on page 137. But then
Your Honour went on to say that there were other
questions which were political questions and Your Honour then said what they were. But, in our respectful submission, they are a far cry from
this case. Your Honour, in any event, concluded that the Court could at least examine whether that
decision was reasonably made. Your Honour mentions that at page 138, about point 8. Your Honour Justice Deane thought that whether
the legislation was special measures involved a question of
characterization in a factual context and Your Honour
referred to that at page 148 in the first full
paragraph at about point 6 to point 7. But Your Honour then went on to say that whether _the provisions were
taken for a sole purpose could be determined bywhether the provisions are capable of being reasonably
~onsidered to be appropriate and adapted. But again,
ClT17/l/VH 27 9/5/89 Queensland(2) in our respectful submission, that is something
which is clearly of a more subjective nature and
something which is clearly more one which one would
expect should be left to the political arms ofgovernment than something which, in our respectful
submission, can be objectively ascertained, such as
the questions in this case of what is cultural
heritage or what is natural heritage.
As to the other matters, Your Honour looked at
the legisliation in its historical context. That
appears on pages 149 and 150.
(Continued on page 29)
ClTl/2/VH 28 9/5/89 Queensland ( 2)
MR DAVIES (continuing): Your Honour Justice Dawson at page 161 also relied on matters of general public
knowledge and on the terms of the Act but
Your Honour thought, as appears from the bottom
of that page, that:
The question whether the Pitjantjatjaras
are a racial or ethnic group requiring
protection -
was a matter, ultimately, for the legislature
but again, in that respect, Your Honour posed
the test as to whether that question might
properly be reached as one for the Court. So on the whole, in our respectful submission, we
would distinguish that case from this because
the questions which some of Your Honours thought
were matters which could only be examined as
to reasonableness were questions which, in our
respectful submission, may be contrasted with
the questions in this case.
Your Honours, the question whether property
the subject of protective legislative regime
was cultural heritage or natural heritage was
not in issue in the TASMANIAN DAM case. And it was not, at least partly, for the reason
that Tasmania itself had requested nomination
of the area. That really appears in the judgment
of the Chief Justice in setting out the facts.
It appears, at least in part, Your Honours, on page 64 of His Honour's judgment in that case
where he said - in the last full paragraph:
The State of Tasmania acknowledges
the significance and beauty of the area
of the Parks as a whole -
and then if I leave out the next sentence and
commence:
It asserts that the natural features which justify the listing of the Parks are to be found in the Parks as a whole -
in other words, what Tasmania was asserting, that
certainly it was natural heritage but that flooding
a little bit of it would not harm the whole.
So it does appear, in our respectful submission, that
that question was not in issue and Your Honour
Justice Gaudron remarked on - - -
MASON CJ: But is that entirely corrrect? Was there not an issue about cultural heritage, as to whether
or not the archaeological sites brought the propertywithin the World Heritage regime? If you look
at page 65 for example and page 66. Page 65 sets forth the Commonwealth's allegation.
ClT18/l/AC 29 9/5/89 Queensland(2) Page 66 at the top begins:
The State of Tasmania, on the other
hand, asserts that there are no or no
significant archaeological sites in the
subject area.
MR DAVIES: I accept what Your Honour says. In the end that does not matter for the purpose of our argument
in the sense that once it is accepted that the
total area is natural heritage that is the end
of the matter for the purpose of both the protective
regime and also the question of whether in fact
it could be listed, or ought to be listed.
McHUGH J: I think the last two paragraphs on 66 and the top of 67 support what you were putting about
it - it did not really arise.
MASON CJ: Yes, that does seem to be so.
MR DAVIES: Yes. Thank you, Your Honour. May I just mention in passing that Your Honour Justice Gaudron in
RICHARDSON, at page 340, noted that "it was not
in issue" in the TASMANIAN DAM case:
that the land so identified and delineated
constituted part of the natural heritage
as defined in the Convention.
So that question really was not in issue and
the only questions which were in issue were,
in our respectful submission, whether the subject-
matter of the legislation had to be a matter
of international importance in the sense of
affecting Australia's relations with other countries
or persons or things outside Australia for the
legislation to be within the external affairs
power and, secondly, whether to be within that
power it was sufficient and necessary for the
legislation to give effect to obligations imposed
by the Convention and whether the Convention
in fact imposed an obligation. (Continued on page 31)
ClT18/2/AC 30 9/5/89 Queensland(2)
MR DAVIES (continuing): But the important thing, in our respectful submission,is that the question which
is being raised here was not in issue in that case
nor did this question arise in RICHARDSON. There,
in our respectful submission, the question was
whether there was a basis for invalidating a
legislative judgment that an area may possess
heritage characteristics which justified interim
protection. That appears from - and I will not
take Your Honours to it - the judgment of Your Honour
the Chief Justice and Justice Brennan at page 294 andfrom Your Honour Justice Gaudron's judgment at page 346
but here, by contrast, in our respectful submission,
the question is concerned with the making of a
conclusive finding of constitutional fact, namely,
that property is part of the natural or cultural
heritage thus justifying the making of a proclamation
under section 6(3).
May I just, for the sake of completeness on
that aspect of the matter, take Your Honours to
section 6(2) and the various paragraphs there. Thefirst of those, (a), of course, has no application in
the present factual situation; (b) and (c), in our
respectful submission, can only each apply if the
property is cultural heritage or natural heritage
because, in our respectful submission, they are
essential prerequisites of the performance of the
treaty or the incurring of obligations.
McHUGH J: Mr Davies, why is not the obligation of the State party to take various steps in respect of the cultural
and natural - property which it genuinely considers is
cultural or natural heritage?
MR DAVIES: Your Honour, we say the answer to that appears from the Convention itself. First of all, that there are
definitions of "cultural" or "natural heritage. They are defined in sufficiently objective terms to enable
an objective assessment to be made of whether, in fact,
it is, in fact, cultural or natural heritage. Secondly, the terms which are used to impose the obligations upon
the State party are terms such as "identify and delineate",
not "decide or determine". Thirdly, it obviously
envisages that obligations will be incurred irrespective
of what is done towards the process of listing the
property and the other objective terms in the Convention
to which we have referred and we say simply that the
terms of the Convention indicate that those questions
are objectively ascertainable. In the end, Your Honour,
the difference between what you put to me and the
submission I am making is whether one adopts the first
alternative answer which we give to the question or
the second, in our respectful submission.
ClT19/l/SH 31 9/5/89 Queensland(2)
MR DAVIES (continuing): In either event, in our respectful submission, the question is
examinable; the only question really is,
whether the question for the Court is whetherthe property is cultural or natural heritage, or whether the property is reasonably capable
of being natural or cultural heritage. We submit, with respect, that the first answer to
that question derives from the terms of the
Convention itself and, indeed, from the sort
of statements to which I referred fromHis Honour the Chief Justice and Justice Brennan
in the TASMANIAN DAM case, that, in fact,
answering the description.
McHUGH J: If it is a question of genuine identification
and submission, then it may be a question that is not justiciable.
MR DAVIES: Your Honour, the question of - - - McHUGH J: It involves judgment, political judgment.
MR DAVIES: Well, it is a long way from - that is why
I had attempted to distinguish GERHARDY V BROWN,
Your Honour. It is a real long way from sayingwhether, in fact, something ought to be done for a particular people which one can see is a political judgment. It is a long way from that to looking at a provision which purports to be a definition and is referred to in the Convention as a definition and appears to be in objective terms and is referred to in objective terms whether, in fact, that state of affairs exists or not. DEANE J: Mr Davies, do you not have to be a little more precise in identifying the legal question?
I mean, for example, I do not quite follow
whether you are saying the proclamation
is invalid because it goes beyond the relevant
provisions of the Act or the relevant provisions of the Act are invalid.
MR DAVIES: Well, I would say, first, the proclamation is invalid because it goes beyond the relevant
provisions of the Act.
DEANE J: Then, does that not take us to seeing whether the Act requires in a case such as this that
the property be cultural or natural heritage?
MR DAVIES: Well, I would say that reading the Act together with the Convention, you must read it
down to mean that, Your Honour,and that there is
nothing specific in the Act which goes beyond that.
ClT20/l/JH 32 9/5/89 Queensland(2) But, one must, in our respectful submission,
read the Act together with the - - -
DEANE J: But, you are going to take us to the provisions of the Act to show how it must be
read down to exclude this proclamation?
MR DAVIES: I did not intend to take Your Honour any further to the provisions of the Act in that
respect, I do not think.
DEANE J: But, must that not be the legal question? I mean, if the proclamation is within the Act,
the only attack can be on the provisions of
the Act.
MR DAVIES: I suppose, one of my purposes in taking Your Honour through section 6(2) was to say - perhaps an alternative argumen~ that one of
the provisions of section 6(2) could be invalid
if it were read in one way. But, I did not
really intend to do any more than that, I do
not think, Your Honour.
DEANE J: I mean, if you were to succeed in getting the case out of 6(2)(b) either read down or on
some other basis, can you just ignore 6(2)(d)?
MR DAVIES:
6(2)(d) is, I suppose, a problem, Your Honour, but we would say that listing alone does
not show international concern for the
protection of property but only concern for suchpart of the property, if any, which is part of the cultural or natural heritage. DAWSON J: Are we talking about 6(2)(b) or (d)? MR DAVIES: (d). (b) and (c), I was really simply saying, that they could only apply if the property
is cultural or natural heritage. They are
alternative arguments in the sense that that
if those submissions are wrong, then those statutory provisions are invalid, in our
respectful submission.
(Continued on page 34)
ClT20/2iJH 33 9/5/89 Queensland(2) MR DAVIES (continuing): All I am really saying with respect
to (d) is that if the factual basis for the
nomination is missing then the international
concern must disappear. And certainly we would
say, of course, that the legislative power
is limited to giving effect to the Convention.And to the extent that the paragraph goes beyond
that power, we would say it is invalid. As I recall, the validity of that paragraph was
expressly left open in the TASMANIAN DAM case.(e), of course, seems to have been viewed by the majority in the TASMANIAN DAM case as
being invalid. But, Your Honours, subject to
what I have said, I did not intend to deal in
detail with the provisions of the Act, but if
there is some matter in which I should specifically
answer then I will do so.
DEANE J: Well, in one sense your argument is aimed, if you are concerned with the Act, primarily at section 3A, is it not, t·1:1.ich makes quite clear that this Act applies in respect of property which may not be part of a cultural heritage or
natural heritage. It is any one of A(l),(2), (3) and (4). MR DAVIES: That is true in one sense although, of course, it
does not apply in any appropriate sense unless
section 6(2) also applies.
DEANE J: But it is carried over into section 6(2) by the introductory words of 6(2).
MR DAVIES: Yes. I am sorry, all I was really saying is that it is necessary that a property be an identified
property within the meaning of section 3 and aproperty which comes within section 6(2) before
a proclamation can be made. Maybe the attack has to be in the alternative against 6(2) or the
earlier provision~ But I was simply concentrating it on 6(2) in the sense that section 3A has really
no consequence unless the property also comes
within section 6(2).
DEANE J: I will not take time, but what I am having difficulty with is reading this Act, particularly 6(2)(d). It is clear that the Act is concerned with wider concerns than the mere identification of cultural or natural heritage. That being so, I have great difficulty in following an argument which, instead of attacking the breadth of the Act, homes in directly on the proclamation and attacks it on the basis that it is not confined to natural or cultural heritage. MR DAVIES: I take Your Honour's point. Perhaps I was - the proclamation is really the focus of our argument
ClT21/l/DR 34 9/5/89 Queensland(2) and perhaps Your Honour is correct in saying that
we should be attacking the Act. But we do so, at
least in the alternative, we are saying one or the
other. We are saying either the proclamation is
invalid because the provisions of the Act can be
read down to be limited to property which is, in
fact, cultural or natural heritage. If that is
not so, if that reading-down process cannot be done -
and the reading-down process, in our respectful
submission, is more appropriately done in
section 6(2) than in section 3A - if that reading-
down process cannot be done then, in our respectful
submission, those provisions of the Act which
go beyond property which is, in fact, natural or
cultural heritage, are invalid.
McHUGH J: But the difficulty with that is this, is it not,
that it is sufficient to come within the proclamation
power under 6(3) that the property is included in the World Baritage ~ist under 3A(l)(iii), and that it complies with (d) of section 6(2).
MR DAVIES: Yes. (Continued on page 36)
C1T21/2/DR 35 9/5/89 Queensland(2)
McHUGH J: That has really got little to do wit±, whether it is within the definition of "cultural or natural heritage", has it?
MR DAVIES: We would not accept that, Your Honour. We would say, on a reading-down process you can say that the
only properties in respect of which there can be
international concern can be properties which are
in fact part of the cultural or natural heritage;the listing alone does not do it.
McHUGH J: That is not the theory the Act appears to proceed
upon. Paragraph (d) might seem to proceed on the basis tnat the fact that you are on the list
may itself make it a matter of international
concern.
MR DAVIES: The Act is no doubt intended to give it the widest possible ambit, Your Honour, I accept
that. The question is, I suppose, whether those provisions can properly be read down in the way
that we submit. If they cannot - - -
McHUGH J: I would not have thought it was a question of
reading down; I would have thought it was aquestion of validity.
MR DAVIES: If they cannot, then it is a question of validity. We accept it is one or the other and it does not matter for the purpose of our argument which is
correct.
McHUGH J: Your stated case does not - the questions
in the case do not come near those questions,
do they?
MR DAVIES: Certainly the first does, Your Honour, in this
sense: the question which the Conunonwealth really
wants answered "Yes" is that listing alone is
sufficient to validate the proclamation and
we say that is not so. Listing alone will not
do it; the only thing which will do it is listing if the property is part of the natural or cultural
heritage. In fact, listing is irrelevant, we say;
it will only be valid if the property is natural
or cultural heritage. In our respectful submission,
that isconsistent with section 6(2)(d) being
read down to say that there is only international
concern if the property is natural or cultural
heritage, or, that if it cannot be so read down
that section 6(2)(d) is invalid.
BRENNAN J: The proposition that you read section 6(2)(d) in that way is to be resol11ed by reference to the
existence of an international obligation undersection 6(2)(b), or existence of international
concern under section 6(2)(d), questions which
CIT22/l/JM 36 9/5/89 Queensland(2) on either count are to be determined by reference
to international law rather than by municipal
law.
MR DAVIES: Accepting that to be so, Your Honour, if I go
back to the example I gave earlier, assuming
that was demonstrably wrong, the international
concern must in fact disappear. There can be
no international concern if the property in fact
is not part of the world cultural or natural
heritage. If that appeared demonstrably incorrect -
supposing in this case, where the material before
the World Heritage Committee shows that there
are 400 endangered species of birds in thisarea, and we can demonstrate that in fact there are
no endangered species of birds in this area and
that that was the sole basis for listing - I should
not say just "listing" because "listing" is not
alone a submission, but steps which include listing
of a particular part of this property. In our
respectfuly submission, if that was demonstrable,
then the international concern would disappear.
BRENNAN J: For myself, r am not; sure that that is self-evident,
if only for the reason that was put to you
earlier by Justice Deane, if there had been
an allocation of funds for protection of these
non-existent birds and that had been spent inthe construction of aviaries, I would have thought
that perhaps there might be something to be
said that the international cor.miunity has some
concern in the property.
MR DAVIES: The concern would be more about getting the
money back, I suppose, at that stage.
BRENNAN J: Well, whatever it might be, yes.
(Continued on page 38)
CIT22/2/JM 37 9/5/89 Queensland(2)
MR DAVIES: But quite seriously, Your Honour, the international concern for the survival of those birds would not
any longer exist; it could not if, in fact, itwas demonstrable that they were not an endangered
species which is necessary for article 2.
BRENNAN J: But it would be necessary to take it far past the stage of argument to the point of demonstration,
would it not?
MR DAVIES: Well, that depends upon whether Your Honour accepts
our first alternative proposition. If our first
alternative proposition is correct, then the mere
fact that it can be demonstrated would be sufficient.
BRENNAN J: But that assumes that a local demonstration will have some kind of judicial declaratory effect in the mind of the internationalcommunity. It seems to be a large step.
MR DAVIES: Your Honour, in the end, of course, we are concerned with the validity of local legislation.
BRENNAN J: But not the validity of legislation but the operation of the legislation construed in the manner
for which you contend.
MR DAVIES: Either of those, Your Honour. My alternatives are either of those, one or other of those; in our
respectful submission, that in the end, to determine
the validity of internal legislation by reference to
a head of power, one must be able to say whether
in fact the fact or circumstances which gives rise
to that head of power existed or not.
BRENNAN J: Oh, yes. MR DAVIES: And if, in fact, the fact or circumstance is that it is natural or cultural heritage, then one must
be able to demonstrate before a court that that
fact or circumstance did not exist. Your Honours, I think that I have said all that I really need to
say, even including our alternative argument, because, in the course of developing what we have said is our
main approach, we have, I think, put the alternative
argument and, unless there are any further matters
Your Honours wish to raise with me, they are our submissions.
MASON CJ: Thank you, Mr Davies. Yes, Mr Solicitor.
MR GRIFFITH: If the Court please, may I hand the Court our contentions?
ClT23/l/VH. 38 9/5/89 Queensland(2)
MASON CJ: Yes. MR GRIFFITH: If the Court pleases, we make our basic
contention in paragraph 1 . of our contentions, that
the inclusion of the property in the list, we submit,establishes in itself that - and we refer to the three paragraphs of section 6(2l(b), (c) and (d) - validly apply. We would submit there is no other relevant issue and therefore the proclamation
should be regarded as valid. If we could refer briefly
to the scheme of the Act. We submit that the scheme established by the Act is by reference to proclamation, in this case made on 15 December 1988 after the listing earlier that month, which IB provided for under section 6(3) of the Act, that is on page 5
of the print handed by my learned friend, Mr Davies, to the Court. The listing was on 9 December 1988 by the
World Heritage Committee. The Court is aware that there was an earlier proclamation, but that was
superseded by the existing proclamation of
15 December. There were regulations made on 16 Decerriber under section 2l(l)(a) of the Act whereby the
Governor-General proscribes certain acts in relation
to the property for the purposes of section 9(1) of
the Act. For the purposes of contention between the
plaintiffs and this action, the regulations deal with
a general prohibition of forestry operations without
the requisite ministerial consent. · The regulations are not contained in the materials before the Court, and are the subject of
proceedings on remitter to the Federal Court
pursuant to the order made by Justice Gaudron on
24 January. So we need not be concerned with issues pertaining to the validity or ambit of the
regulations. We would submit that the validity of the proclamation under section 6(3) is a question of
statutory power under the Act, considered, of course
in the light of Parliament's legislative powers under
the CONSTITUTION, and, as to that, we would submit
that there are three statutory prerequisites for the validity of the proclamation. These are briefly
referred to by His Honour the Chief Justice in the
interlocutary proceedings in this action which were
reported in (1988) 62 ALJR 143 ,- in particular at page 145. Those three statutory prerequisites which we
identify, and which were referred to by His Honour
in that part of his judgment are, firstly, that the
property must be identified property. Identified
property is defined in section 6(2) and,in particular,
section 3A(l) provides a definition which is carried
over to section 6(2). In this case it suffices, we
would submit, to have regard to the definition under
ClT24/l/FK 39 l1IR GRIFFITH, QC 9/5/89 Queensland(2) paragraph 3A(l)(a)(iii), namely that the
property is included in the World Heritage List
provided for in paragraph 2 of article 11 of the
Convention.
Of course, when the proceedings were issued,
the property was merely the subject, or about to
become the subject,of World Heritage List nomination
but the supervening completion of the process of
listing on 9 December 1988 means that the issue
before the Court is by reference to the definition of
identified property as it is defined coming within
the definition of paragraph (iii). This question of
identified property, we submit, is not in issue.
In the amended statement of claim found in volume 2
at page 382, the plaintiffs abandoned their former
contention that the property was not identified
property.
(Continued on page 41)
ClT24/2/FK 40 9/5/89 Queensland(2)
MR GRIFFITH (continuing): We would submit, of course, that clearly it is identified property because of the
fact that it has been included in the World Heritage
List and that is established by the case stated,
paragraph 5,and various of the documents in the
two volumes of materials go to the issue of the
final identification of the property.
The second issue is whether the property is
one to which one or more of the subparagraphs of
section 6(2) apply. We submit that this is the issue before the Court. Indeed, we submit that it
is the only issue before the Court because the
statement of claim which we refer to, commencing
on page 382 of the book, does not contain any
allegation in respect of the validity of any of
the paragraphs of section 6(2). The only relevant allegations are in respect of alleged invalidity of
the proclamation.
The third issue which we say, again, is not in
issue is whether the property in respect of which the Governor-General is satisfied, that it is. being
or is likely to be damaged or destroyed. That is
picked up by section 6(3) and that, again, is not
in issue. The reply to the amended defence,which
is found on page 394,confirms that there is no issue
concerning the Governor-General's satisfaction for
the purpose of section 6(3).
So, we submit the only live issue affecting the
validity of the proclamation is whether section 6(2)
has valid application to the property. We submit as to that that when one considers paragraphs 6(2)(b), which is the primary paragraph to which reference may
be had, firstly, it may be said that Australia is a
party to the Convention. It was ratified by Australia
on 22 August 1974. One sees a reference to that to 158 CLR 80.
Secondly, we submit that the Convention imposes
international obligations on Australia as a State
party in respect of property within Australia forming
part of the world cultural or natural heritage,
articles 4 and 5 and, although in this case 'nomination"
does refer in a passing fashion to the cultural heritage,
it is clear from the consideration of the nomination
that the consideration was determined, really, solely
by reference to the factors of natural heritage and
we would submit it is sufficient for the Court to
have regard to matters of natural heritage in respect
of this property for the purposes of this case.As my learned friend, Mr Davies, pointed out, the TASMANIAN DAM case establishes that this Convention
ClT25/l/SH 41 9/5/89 Queensland( 2) imposes obligations on State parties and, as to that,
we feel it is unnecessary for us to take the Court to
the various references of the judgments of the Court
in the TASMANIAN DAM case but merely say that thisconstruction was one confirmed by the Court in
RICHARDSON V THE FORESTRY COMMISSION, (1987-1988)
164 CLR 261.
We say, further, the property was identified by
Australia as forming part of the heritage such
identification being expressed in the act of
nomination of the property for listing in accordance
with article 11.1 of the Convention and one finds
that from the case stated, paragraph 3,and annexure A
to which my learned friend referred but took the Court
to only passing reference. We say, further, that the property was included in the World Heritage List by
determination of the World Heritage Committee, pursuantto article 11.2 on 9 December 1988. That is, case
stated paragraph 5.
Therefore it follows, we submit, that the property has been identified in accordance with the
Convention procedures as part of the cultural or natural heritage. Accordingly, articles 4 and 5 of
the Convention impose obligations on Australia to
protect and conserve the property and that comes,
of course, squarely within the terms of
section 6(2)(b) and we, therefore, submit that at
all relevant times since the date of the proclamation
and at the date of proclamation, the protection and
conservation of the property was a matter of
international obligation by reason of the Convention.
(Continued on page 43)
ClT25/2/SH 42 9/5/89 Queensland(2)
DAWSON J: Well, .you say it is the identification of the property that gives rise to the obligation?
MR GRIFFITH: Nq Your Honour, there can be an obligation
before, yes.
DAWSON J: Well, yes, but in this case?
MR GRIFFITH: Yes. In this case, the issue is whether, when the property is listed, if not before,
upon listing it becomes a matter which is
indisputable, Your Honour, that there is a matter
of obligation to protect and conserve.
DAWSON J: That is certainly listing but, prior to that, the identification, you say, would make it
indisputable that there was an international
obligation.
MR GRIFFITH: Well, Your Honour, that is a separate issue which is'not presently before the Court.
DAWSON J: But what do ypu say about it? MR GRIFFITH: Well, Your Honour, we would say that if there was no allegation of mala £ides in
respect of the process of identification and
nomination, our primary submission would be that
would be so, Your Honour. It is a matter of
expressions,when used by judgment in this Court,
of calculus, Your Honour - of calculus of a
number of factors - so that we would say
Your Honour in the circumstance where there was no
'
allegation that the nomination had not
proceeded bona fide., it would be a matter inappropriate for inquiry in this Court to
consider whether or not this Court took the
view that the property was, as my learned friend
Mr Davies suggested, in fact, of world
heritage.
DAWSON J: So in other words, the Convention gives to
the State party the function, rightly or wrongly, of identifying what it considers to be
property which is in the natural or cultural
heritage.
MR GRIFFITH: Well, we would prefer to express, Your Honour, bona fide, to do its honest best.
DAWSON J: All right, I follow that. MR GRIFFITH: Yes, and if that is the case, Your Honour, we say that is a duty imposed pursuant to the
Convention and complied with in those terms.
C1T26/1/JH 43 9/5/89 Queensland(2)
DAWSON J: And the Convention does not envisage some other body coming in and saying, "Well that
does not matter, in fact it did not fall
within what we consider to be a breachof the definition.
MR GRIFFITH: What the Convention does envisage, Your Honour, I will take the Court in detail
to it, is that for some of the purposes of the
Convention, Your Honour, there is a superimposed examination by the World Heritage
Committee seeking technical assistance as
contemplated both by the terms of theConvention and the practice of the State parties to ensure, Your Honour, that in
respect of such property which is nominated,
that it does, by reference to criteria
determined by the Committee, Your Honour, fulfil
the standards of being world heritage; in this
case we say natural heritage.
But, Your Honour, it is our submission
that the issue before the Court really is the
issue at "the top of the hill". That is, when
the property has been listed, is furtherinquiry possible?
DAWSON J: That is not the way Mr Davies puts it though. MR GRIFFITH: No, but it is the way we put it, Your Honour,and we say - - -
DAWSON J: Yes, I just wanted to know what you had to say
in answer to Mr Davies.
MR GRIFFITH:
Yes, well, Your Honour, we say, it having been listed, it becomes indisputable that it is
world heritage and it is our submission then, Your Honour, that there is no occasion for examination by a municipal court as to the
underlying matter of fact so - - - DAWSON J:
So, you would say the thing but you are identifying it?
MR GRIFFITH: Well, we would, Your Honour, but we say it is unnecessary for us to say and examine that here.
We do rely upon, Your Honour, the fact of
listing and that is the point of the question
which has been referred to the Court and we -
DEANE J: But you would still keep your bona fide qualification, presumably?
MR GRIFFITH: Yes, Your Honour. Well, Your Honour, in the case of listing by the World Committee, we
would say it is inconceivable, Your Honour,
ClT26/2/JH 44 9/5/89 Queensland(2) that a mala fide nomination could be
listed so that if it were alleged, Your Honour,
we would probably assert that that is
untenable.
DEANE J: Well, it is not to me but, perhaps, that is quite irrelevant.
MR GRIFFITH: Well, Your Honour, what we will seek to do briefly is to take the Court through the
documents to indicate the nature of the
examination.
DEANE J: I was not suggesting that there was any lack
of bona fides here. I can envisage circumstances in which an international
committee might seek to accommodate the wishes
of one of their members.
(Continued on page 46)
ClT26/3/JH 45 9/5/89 Queensland(2)
MR GRIFFITH: Your Honour, we would cavil at that, with respect. We would submit - and we intend to take the Court
through, not so much to show that here was
completely bona fide but to show the nature ofthe examination is a review on the merit. And
we would submit, Your Honour, that there is
sufficient there to establish that the practice
of the State parties is to ensure only properties
which meet a rigorous standard of universal
outstanding qualification are listed and, Your Honour,
we would submit that that must carry with it,
by implication, that once listed a property could
not be regarded.
DEANE J: Let us not take time but that sounds a bit like
saying that the ad hoc members' judgment in the
World Court always is a proper reflection of
international law.
MR GRIFFITH: Yes, Your Honour. Perhaps there is no need
to go into it but the practice of the committee
is that any representative of the nominating
country does not participate and we say it is
a matter, Your Honour, where one should demur
to the practice of the State parties pursuant
to the Convention in respect of their considerationof the merits and their view on the merits.
DEANE J: But you do accept the qualification of bona fide listing? MR GRIFFITH: Your Honour, if there was an allegation of that here we would accept that that would be
an issue, although we would seek to answer it in
that way. But there is no such allegation so it is not an issue.
Firstly, may I refer to the international
obligation to protect and conserve and, of course,
we rely upon the TASMANIAN DAM case as authority
for the proposition that Australia does have
international obligations under the Convention
and we refer, in passing, to the statement by
Your Honour, the present Chief Justice, at page 132
and the statement by Your Honour Justice Deane,
at page 263 point 3, where Your Honour said:
the provisions of the Convention impose
real and identifiable obligations and provide
for the availability of real benefits at
least in respect of those properties whichhave, in accordance with the procedure
established by the Convention, been indisputably
made the subject of those obligations and
identified as qualified for those benefits
by being entered, upon the nomination of
the states in which they are situated, on
the World Heritage List.
ClT27/l/AC 46 9/5/89 Queensland(2) And, of course, we refer with emphasis to
Your Honour's phrase "indisputably made the subject
of those obligations". Your Honour Justice Brennan, at page 231, said: the obligation imposed upon Australia to
protect and conserve the listed property.
We would submit that when one looks at the Convention, and we have regard to the preamble
as well as to the operative parts - without taking
the Court through the preamble by reading it
to you, we submit that in summation the preamble
itself establishes, and of course it may be relied
upon in passing by the Vienna Convention of the
Law of Treaties, article 31. Your Honour, I
think my learned friend, Mr Davies, did hand
to the Court a list of materials. We have a bundle
of materials as well and it may be convenient
if I give them to the Court now. This volume
does cover some of the same material that my
learned friend gave to the Court but the first
document on page 1 is a list of parties as at
1 January 1989. To that list there is to be added Uraguay which acceded 9 March 1989, so
there is now some 109 members.
(Continued on page 48)
C 1 T 2 7 / 2 /AC. 47 9/5/89 Queensland(2)
MR GRIFFITH (continuing.): There is also attached on page 2 a
list of listed documents as at 31 December 1988_
and we refer to that as giving contemporary content to
the matters of international concern in respect ofwhich the terms of the Convention have attached to
the extent of properties being listed. On page 6 there is an extract of articles 31 and 32 of the
Vienna Convention. that I think mylearned friend,
Mr Davies, included in his materials. On page 9 - the report of the experts, 15 June 1972, that
Mr Davies also referred to. The remaining two documents are, firstly a copy of the UNESCO
publication, The Courier, of August 1988 which in
a background way elucidates, we would say, what
might be regarded as the operative view in organisations'
perception of the contemporary operation of the
Convention and, in particular, we refer to the article
on the World ijeritage concept by Michael Parent
on page 63.
The publication is not entirely a glossy because
this article does provide a contemporary summation,
we would submit, of the operation of the Convention.
Then, on page 65,there is a very useful summary
under the subheading: , ... The World Heritage Convention and how it works -
which runs over to page 67. There follows on
page 68 a list of 288 properties as of December 1987.
The earlier document is the updated December 1988
version. The last document is an article extracted from a publication in Australia, "Heritage Australia"
by Professor Slatyer who was for some time chairman
of the World Heritage Committee in 1981 to 1983.
That also is a useful summation on page 73 to 75 of
the operation of the listing process and, in particular,for example· on page 74, the middle of the middle
column, refers to the fact that the practice to receive
reports from, in the case of natural heritage, the
IUCN:
recognizes the fact that theCommittee is not an expert Committee, as has already
been mentioned, but also recognizes
that if a particular nomination comes from
the country of a committee member, it would
uut the committee into a difficult situation
if that member were able to advocate and
debate its listing.
So, in the article, Professor Slatyer indicates the
elements of. independent professional assessment by
reference to the guidelines which is part of the
protess of listing. So we refer to that as a contemporary statement of, we would put it, the
content of the process of examination in the listing
process.
ClT28/l/VH 48 9/5/89 Queensland(2) I mentioned that we relied upon the Convention as establishing the nature of international concern
in respect of the detection, identification and
protection of matters which come within the description
of cultural heritage and natural heritage.
In particular, when one sees the last paragraph
of the preamble, where, it is acknowledged that
"it is essential for this purpose to adopt new
provisions in the form of a convention; establish
an effective system of collective protection of
the cultural or natural heritage of outstanding
universal value, organized on a permanent basis and
in accordance with modern scientific methods," so that the preamble, we submit, lays a framework of international concern to ensure a system of co-operative identification and also protection of
World Heritage areas coming within the description
of "outstanding universal value."
(Continued on page 50)
ClT28/2/VH 49 9/5/89 Queensland(2)
MR GRIFFITH (continuing): Of course, as is indicated by paragraph IV of the experts' report of 1972, which
appears on page 9 of our materials, in reference
to the definitions, the point was made in
paragraph 14 on page 12 that:
the definitions of the cultural heritage and
the natural heritage respectively which were
included in the Draft Convention -
it said:
it should be noted that the Committee did not
define the meaning of the words "of oustanding
universal value".
They were deliberately left undefined by the
committee, we would submit, to enable the
State parties, through the aegis of the WorldHeritage Committee in its capacity to provide
for guidelines, to develop a body of State
practice in respect of what is referred to
the mechanism of ensuring a collective protection of
cultural or natural heritage organized on a
permanent basis in accordance with modern scientific
method.
We submit that when one looks at the Convention,
including the travaux and other relevant documents,
it is clear that the pre-eminent Convention
obligations is protection and conservation of a
property. That embodies the very object of the
Convention. So, for example, Your Honour the
present Chief Justice said in the TASMANIAN DAM
case, 158 CLR at page 138:
Implementation of the Covention, and of
the obligation which it imposes on
Australia in relation to the property, calls for the establishment of a regime of
control which will ensure protection and
conservation of the property.
As to these international obligations, our submission
is that firstly they would attach to property which
is in fact part of the World Heritage as defined.Your Honour Justice Gaudron said that in RICHARDSON,
as my learned friend referred to in 164 CLR at
page 341, and it is also a statement made by
Justice Wilcox in MINISTER FOR ARTS, HERITAGE and
ENVIRONMENT V PEKO-WALLSEND LTD, 75 ALR at page 250.
DAWSON J: As defined by the Convention?
MR GRIFFITH: I beg your pardon, Your Honour?
CIT29/l/JM 50 9/5/89 Queensland(2) DAWSON J: That would attach to property as defined
by the Convention?
MR GRIFFITH: As defined by the Convention, yes, Your Honour. DAWSON J: That is pretty meaningless, because there has
to be a definition before you can really put
any meaning into it.
MR GRIFFITH:
Of course there does, Your Honour, and the Convention provides - - -
DAWSON J: Delineation.
MR GRIFFITH: The Convention provides the mechanism for it.
DAWSON J: Really, what it becomes in essence is the
obligation attaches to property delineated
by the State party.
MR GRIFFITH: Yes. Well, Your Honour - DAWSON J: In a practical sense,that is what it means.
MR GRIFFITH: In a practical sense, we would agree, Your Honour.
My learned friend made a submission, I think
along the same lines as my one, saying that
the obligation exists in the air, as it were,
and he says that is the primary fact: is it World Heritage? If it does, the obligation to
protect and conserve attaches because in fact
it is. But that is unenforceable, Your Honour.
DAWSON J: Of course, it is. You are talking value judgments and until someone has made a value
judgment it means nothing.
MR GRIFFITH: With respect, Your Honour, we entirely agree.
DAWSON J:
So really the whole point of the Convention is to place an obligation on the State parties to define the property and then the obligations ensue
from that? MR GRIFFITH: Yes, well, Your Honour, we say another
matter of the international structure of the
Convention is to provide that as a gateway to
the next step of identification, namelyconsideration on its merits by the World Heritage
Committee.
(Continued on page 52)
CIT29/2/JM 51 9/5/89 Queensland(2)
DAWSON J: But listing does not mean anything much. It qualifies you for financial assistance and, perhaps,
some other things but it is not really the thrust
of the Convention at all.
MR GRIFFITH: With respect, Your Honour, we submit it is because we submit that is what lifts it out of local concern
and takes it off so that it is perceived to be, by
listing on the list by the World Heritage Committee,
a matter of international concern and obligation so
that when listed, Your Honour, we would submit quite
independently of any underlying review of whether or
not there is this bird species or that, there is a
valid and proper international perception that that
property is of World Heritage status within the
meaning of the Convention and recognized by the
State parties to the Convention as such.
DAWSON J: Now, you see, this is what I do not understand in your submission. You are trying to give to the
Heritage Committee or whatever it is,the function of does. It gives it to the State parties the function of doing that.
deciding whether something is or is not or, conciusively
determined, that something is or is not part of the
MR GRIFFITH: With respect, Your Honour, we say the question is whether, in respect of this property, there is a matter
- if we are considering section 6(2)(b) - of international
obligation and our submission is, Your Honour, that when
it is listed it follows from the terms of the Convention
to which Australia and 109 countries are parties,made
for the purposes summarized in the preamble,that it is
a matter of obligation by Australia to preserve and
conserve that property.
DAWSON J: Well, what I am putting to you is that obligation
starts with delineation.
MR GRIFFITH: It:i~:the start of the process, Your Honour.
DAWSON J: Well, it does not start twice. MR GRIFFITH: Your Honour, we are considering it at the point when it has been listed. The question before the
Court is what is the relevant inquiry? Now, our submission is, Your Honour, when it is listed, the
ambit of even possible inquiry is narrowed to the
point of the issues we have identified; whether ornot the property is identified; whether the
Governor-General is satisfied; whether or not it
comes validly within section 6(2). We say that is
the only inquiry, Your Honour, and what we say, in
effect, is that the issue of whether as an objective
fact the property is, in fact, of World Heritage
ClT30/l/SH 52 9/5/89 Queensland(2) qualifications, for example, on the basis it has
threatened bird species, becomes a matter which is
irrelevant for the purpose of the Court being
satisfied as to the existence of the international
obligation and as to the valid reach and operation
of section 6(2). We say that further inquiry is foreclosed. Now, there may be an opportunity for further inquiry if it is not listed, if listing is
refused or if the examination is sought to take place before listing but, Your Honour, we submit when it is
listed, one looks at the position then and, at that
point, the Court is not excluded from inquiry but there are only a few issues, we submit, which are amenable to inquiry as to the issue of validity.
Those, we have identified and we say, having identified them and having, we would submit, Your Honour, ex facie shown that two are not in issue and the matter of
obligation would follow from the terms of the Convention
itself, the point is reached where, really, it is
indisputable that there can be further dispute.
DAWSON J: Well, I will not continue this but it does not seem
to me, reading the Convention, that - what is the name
of the conunittee - the World Heritage - - - ?
MR GRIFFITH: World Heritage Conunittee. DAWSON J: - - - Conunittee sets itself up as the adjudicative body upon the question as to whether something is
or is not part of the cultural heritage of a nation.It leaves that to the nation itself.
MR GRIFFITH: We submit it does that in respect of :ie issue as to whether, for all purposes under the Convention,
it is World Heritage status. Unless you get through
that gateway from the conunittee, you only have
restricted status which is preserved by article 12,
namely, that you can assert that you have identified and delineated it and you, as a municipal government,
take the view it is of World Heritage status but,
Your Honour, we would submit that the negative question of, "Well, what is the status of property which either
is not·listed or listing is refused or which is delisted?" - delisted is possible, Your Honour - is not
a matter of inquiry when we have to, here, consider
the issue, "Well, what is the position in respect of
a property which has been listed?"
(Continued on page 54)
ClT30/2/SH . 53 9/5/89 Queensland(2)
MR GRIFFITH (continuing): Your Honour, it is clear that a property which either has not yet been listed,or
which is refused listing, or which is delisted,
is of lesser status under the Convention. But we submit, Your Honour, when a property is listed - - -
DAWSON J: What is the_llesser status? That it cannot receive
assistance?
MR GRIFFITH: It cannot receive assistance, it cannot be put on the list of pro'tected properties, Your Honour, and we would submit, Your Honour, there is - - -
DAWSON J: That is all, is it not?
MR GRIFFITH: No, a further thing, with respec 4 Your Honour, we say that there is a decreased international
perception that that property is one which comes
within the terms of the Convention where thevarious co-operative ambits of the various articles
of the Convention attach. So that as a matter of international concern and co-operation and
expressed obligation the 109 parties of the
Convention join together, really, Your Honour, we
would put it, altruistically for the good of the
world, to protect each and every of these listed
properties.
DAWSON J: It is not suggesting that it does seem-that the
property is delineated by a nation State, but it does not make the heritage list, nevertheless,
there would not be sufficient international concern
power. to make it a subject of the external affairs
MR GRIFFITH: So far as our CONSTITUTION is concerned. Your Honour, we would say no, but that is - - -
BRENNAN J: So far as section 6(2)(b) is concerned? MR GRIFFITH: Yes, I am indebted to Your Honour, Your Honour.
We would say, Your Honour, that is a matter for inquiry when that occasion arises. Now when the ~it··v?as-·issued in this matter, Your Honour, it was
at the-state of nomination only and there were
allegations made and it was necessary to consider in
what way should they be pleaded, should the matter
be brought before the court. The issue now has been refined, Your Honour, that we are dealing
with it at a different stage,,.md we would submit
at one, Your Honour, where these matters which may
arguably have been disputable, without saying one
way or another whether they would, are, we would
submit, put beyond dispute by reference to the
fact of listing. For the moment we refer to
paragraph 6(2)(b) but we also, Your Honour, rely
on paragraph 6(2)(c) and 6(2)(d) which independently,
we would submit, support the validity of the
proclamation in this case.
ClT31/l/DR 54 9/5/89 Queensland(2) McHUGH J: Mr Solicitor, take a case where the committee refuses to list a property because
it holds it does not have outstanding
universal value in respect of the terms of
its criteria. Obligations are still imposed
on Australia in that situation, are they not,
or may be in respect of that property?
MR GRIFFITH: They may be, Your Honour, one possibility is that Australia may revoke its
finding that it was world heritage.
McHUGH J: Well, supposing, notwithstanding the refusal to list, the Commonwealth Parliament
wants to enact some legislation to give effect
to its obligations? How then do you determine, or who determines whether or not the property
is within article 1 or article 2?
MR GRIFFITH:
Well, Your Honour, we would say that to put the case that could be made against it at its
highest, the relevant inquiry could be no wider than that adumbrated by Justice Brennan
in GERHARDY;_ whether one can say as apossibility, ."Is this view one which could not reasonably be had by the executive?" And, having regard to the various matters of political consideration, I think Your Honour
referred to BAKER V CARR, those variouselements there referred in , the Supreme court, which might mitigate against interference and we say that each of those matters which are listed in BAKER V CARR would exist in this
case. So that. one would have the matter of
discretion ~ to the eX.tent to which the Court would invol v·" itself in reviewing a decision of
the executive - absent allegation of mala fides -made by reference to these calculus of factors that have been referred to.
Now that would mean, Your Honour, we would submit on any view, the possible inquiry would
be very limited. It would not be one of objective fact which is what the plaintiff's
primary allegation is here; we certainly cavil
at that.
(Continued on page 56)
ClT32/l/JH 55 9/5/89 Queens land ( 2.)
MR GRIFFITH (continuing): Your Honour, without finally making a submission on issue were it to arise, we would
submit it could be no more than the sort of limited
exposure that Justice Brennan indicated in GERHARDY.It has been mentioned by other members of the Court
at various times.
DAWSON J: This is for the purpose of what?
MR GRIFFITH: Your Honour, for the postulation of Justice McHugh, if there were a nomination which were refused on its merits by the World Heritage
Committee and none the less Australi~ as the
nominating government, did not revoke its
determination - - -
DAWSON J: So, it would apply if Australia delineated a
property, but did not seek to nominate it?
MR GRIFFITH: Yes, 'Your Honour, that is - - -
DAWSON J: So that there is an examination of the delineation process in some limited way, other than the examination
of bona fides of it, in your submission?
MR GRIFFITH: Your Honour, in the particular circumstances dealing with the operation of section 6(2) of the
Act, there may be Now Your Honour, if, for example,
in the situation there had been delineation but no
nomination, and we sought to assert the protection
or conservation as a matter of international obligation,
now, Your Honour, our primary argument would be the
fact that we have discharged our obligation to
delineate under article 3 would be sufficient to
establish the international obligation. Now, the Court would have to rule whether that is right or
wrong.
If we were not upheld on that, Your Honour, our second contention would be that the element of a
review of the determination be no further than the
limited scope for a review that was indicated by
Justice Brennan in GERHARDY.
DAWSON J: But that is a greater degree of review than there
would be of a decision of the World Heritage Cormnittee.
MR GRIFFITH: Yes, Your Honour, what we submit is, that when the World Heritage Committee has entered the property
on the list the matter of international obligationbecomes, in effect, absolute, for the purposes of
the valid operation of section 6(2). ·
(Continuea on paz~ 57)
ClT33/1/F°K
Queensland(2) 9/5/89 MR GRIFFITH (continuing): It is a case, Your Honour, where
this provision of the Act operates in respect
of not municipal law, in our submission, but
in respect of international law, not merely the
operation of the Convention but in respect ofthe operation of the external relations between
Australia and foreign countries particularly
those who are parties to the Convention.
DAWSON J: I simply do not follow that. The Convention imposes the obligation on the nation to protect
its cultural and natural heritage whether or
not it is listed.
MR GRIFFITH: We would submit, Your Honour, if it is not listed our first submission would be that is
not disputable even then but our second submission
is that it could only be disputable in a narrow
category. As to the matters here we say, Your Honour, that is not the issue before the
Court. It would have been the issue before the
Court if the property had not been listed.
DAWSON J:
You do not see the connection but there may be a connection in my mind, that is why I am
asking the question. MR GRIFFITH: Yes. Well, our primary submission, Your Honour,
would be that none the less the bona fide
identification would suffice for the valid operation
of section 6(2) in a proclamation made under
section 6(3) when the property was - - -
DAWSON J: But I understood you to be saying there was a degree of examination that could be made of
the delineation by the nation State of its natural
and cultural heritage which cannot be made at
the stage of listing.
MR GRIFFITH: Your Honour, that is our fall-back position.
Our primary proposition - - -
DAWSON J: Is that what you say?
MR GRIFFITH:
Your Honour, our primary proposition is that there would not be re-examination but our second
proposition would b~ if the Court ruled against us on that, Your Honour, it would be very limited
re-examination. But our primary proposition is there would not be but what we say here, Your Honour, whether that proposition is now to be considered by the Court or not in respect
of listing,well then, Your Honour, we say itbecomes indisputable that the obligation is there
and that the provisions of section 6(2) validlyattach and we say 6(2)(b) has been found valid by the Court and that there is really no mechanism of entry by a municipal court into consideration of the issue as to whether or not the obligations which arise by the terms of the Convention attaches.
ClT34/l/AC 57 9/5/89 Queensland(2)
MR GRIFFITH (continuing): We say it follows as a matter of
international law to which the Court abides.
BRENNAN J: I confess the difficulty I have in your fall-back position, Mr Solicitor, is that it seems to me that
the function of a State party in identifying and
delineating a property is a function which is
performed for the purposes of the international
convention and, if the fact is that it has delineated
the property, the international obligation attaches
but the fact of delineation is something which is
done in discharge of an international obligation
and is thoroughly unreviewable by a municipal court.
MR GRIFFITH: Yes, well, Your Honour, perhaps I have not made myself clear. That is our primary position. The
fall-back one was if the Court is against us on that
well, then, we say there is a narrow ambit of inquiry
but - - -
BRENNAN J: I see. Well, what is the Court's function in
reviewing? To determine what?
MR GRIFFITH:
Your Honour, we would submit in respect of the issue of a bona fide delineation, which is not the
case here because we say we have got beyond that, but if it is merely a bona fide delineation, the Court's function is very limited indeed. It is to consider
the issues of whether there has been delineation;whether or not there is identified property; whether
or not the Governor-General can be satisfied undersection 6(3); whether or not, in the circumstances, having regard to the terms of the Convention, it can be said that there is a clear international
obligation on Australia to protect or conserve theproperty and we would submit the answer to all those
questions must be "yes" in the circumstances postulated
and, in that case, we would submit that it is not
permissible for a litigant in this Court to say, "Yes,
but we wish to assert as a matter of fact or even as
a matter of whether it is reasonably possible, that
the executive could not have that view". We submit, Your Honour, that is is sufficient that
the executive bona fide has done it and that establishes
the element of international obligation which attachesby operation of the treaty.
(Continued on page 59)
ClT35/l/SH 58 9/5/89 Queensland~2)
DAWSON J: So that at that stage there is no room for
a GERHARDY V BROWN test, even there?MR GRIFFITH: No - Your Honour, I am sorry, I did not
make myself clear. That - - -
DAWSON J: I am sorry, I may have been, proce.eding under
a false - - -MR GRIFFITH: That is exactly what I was saying, Your Honour.
DAWSON J: I thought you were saying that at that stage, at the delineation stage, it was possible - as a fall back position, you were putting it - it was possib1e that the delineation might be contested upon the basis that the property was not reasonably
capable of being considered part of the natural
cultural heritage.
MR GRIFFITH: Your Honour, I apologize for not making myself
clear. By "fall back" I mean fall back if the argument which we just put was not upheld by
the Court. Our primary argument would be the
one I just put.
DAWSON J: So what you are really saying is the process
is not examinable either at the delineation
stage -subject to the fact of it being delineatedsufficiently and so on - not subject to examination at that stage, or at the committee stage. MR GRIFFITH:
Your Honour, it is a question of what you mean by "the process".
We submit that the
Court may examine the process but there are a limited number of questions that can be asked. DAWSON J: !t can ask whether there is in fact a delineation. MR GRIFFITH: Yes. DAWSON J: But what I am putting to you is there is no stage at which you can ask whether the property
was reasonably capable of being considered a
part of the natural or cultural heritage. That question cannot be asked at any stage. Is that
what you are putting?
MR GRIFFITH: Your Honour, we put that in the context of if there is an allegation of mala fides it is
different. So, for example - - -
DAWSON J: Putting mala fides on one side, is that what
you are saying?
MR GRIFFITH: Yes, we do, Your Honour.
CIT36/l/JM 59 9/5/89
Queensland(2) (Continued on page 59A)
DAWSON J: Yes, well now I know.
MR GRIFFITH: But, Your Honour, we say that if one gets
to the point where one says you nominate because
there are birds there and as an objective fact th~re are no birds at all, well, that would obviously be getting to the issues of
mala £ides and that would be the issue. So it is not a question of all possibility of any
consideration of the Court, but if it is made,
as we would say here, Your Honour, on the basis
of an obvious bona fide consideration by the
executive, we say that the role of the Court,
having regard to the terms of the Convention,
is very limited indeed to that extent.
DAWSON J: Yes, I follow.
(Continued on page 60)
CIT36/2/JM 59A 9/5/89 Queensland(2)
MR GRIFFITH: Yes. Perhaps it was a bit of a mistake to make as our starting point that we agreed with
the views of Justice Gaudron that there could
be an obligation in theory, even if the property
had not been identified. But we agree with Your Honour Justice Dawson that there is no effective
content- to that and it could not be enforced in any way. One could not come to any municipal court, present a very strong overwhelming objective
case of world heritage status and get some declaration
that, pursuant to the terms of the Convention,
the Commonwealth was obliged to protect or conserve.
So we would agree that there is no effective
content before that.
We submit that - I think, probably we have
said sufficient about what we submit is the position
if the property has been identified by State
parties in accordance with Convention procedures
but we would submit it follows that Australia
is obliged to protect and conserve and that wasstated by Your Honour Justice Brennan in TASMANIAN DAM at page 228. In this case the identification
by Australia was reflected in the nomination
for listing but our submission is that the point
here is a separate point and that is whether
one may say indisputably that there is an obligation
that one can see in respect of the applicationof section 6(2)(b),an international obligation
in respect of a properlty which, in accordance
with Convention procedures, has been enteredon the World Heritage List, and we refer to
Your Honour Justice Deane using the word
"indisputably" in that context.
Of course, we do not just rely on that as
saying, "Therefore we have authority that it
is indisputable", but we submit that the approach,
really, inherent in Your Honour's observation
does reflect what is, in truth, the position
in respect of what is the situation when one
| T37 | considers | the issue upon listing. |
DEANE J: Is not the point this, that the committee entrusted
by the Convention to which Australia is a party
with deciding what is World Heritage of outstanding
universal value has decided that a particular
property is property to which the Convention
applies?
MR GRIFFITH: Yes, Your Honour. DEANE J: Which, in terms of international obligation, must be the end of the question?
C 1T38/1 /ND 60 9/5/89 Queensland(2)
MR GRIFFITH: Yes. DEANE J: Presuming bona fides? MR GRIFFITH: Yes. MASON CJ: On that triumphant note, we might adjourn, Mr Solicitor, and resume at 2. 15.
AT 12.46 PM LUNCHEON ADJOURNMENT
C1T38/2/ND 61 9/5/89 Queensland(2)
UPON RESUMING AT 2.15 PM:
MR GRIFFITH:
May I pick up Your Honour Justice McHugh's question before lunch as to what would be the position if
World Heritage listing was refused and Australia, as a State party, maintained its identification? The answer would seem to be to that, Your Honour, and I am sorry to have overlooked it in answering this
morning, but the structure of the Act is to deal withthat situation and, if I could take the Court briefly
to section 3A on page 3 of the book of the Act, the definition of "identified property" in 3A(l) is in a serial form; that it covers first the property in a RICHARDSON
situation; secondly property which:is subject to World Heritage List nomination -
which was the situation of this property at the time
of issue of the writ in December 1987. Thirdly, to
provide that it includes:
property included in the World Heritage List
provided for in paragraph of Article 11 of the
Convention.
So that, on listing, the property would contine as
identified property because it comes under paragraph (iii).
and paragraph (iii) alone. Then paragraph (iv) has a provision that: property forms part of the ..... he~itage .....
and is declared by the regulations to form
part of the cultural heritage or natural
heritage.
Subsection (3) provides that:
For the purposes of subparagraph (l)(a)(ii),
where the Commonwealth has ...... submitted property ..... whether before or after the commencement of this Act, as suitable for
inclusion ..... the property shall be taken
subject to World Heritage List nomination
from the time of its submission until theend of 7 days after the day on which the Committee informs, or first informs, Australia that it has included or decided not to include
the whole or any part of the property in the list.
(Continued on page 63)
ClT39/l/VH 62 9/5/89 Queensland(2)
MR GRIFFITH (continuing): Now, if the Committee informs Australia that it has included it,
well then presumbly the property will come
under (iii). If it is not included, well
then it would cease to come under
paragraph(ii),'.3.t the expiration of seven days
and in that way would cease to be identified
property. And, subsection (4) provides that where: (a) any Proclamation under subsection 6(3) or section 7, and any regulation for
the purposes of subsection 9(1) or
paragraph 10(2)(m), in relation to
the property or any part of the
property ceases to be in force; and(b) any Proclamation under subsection 8(3), and any regulation for the purposes
of paragraph ll(l)(j), in relation
to a site being, or situated within,
the property ceases to be in force.So it would then follow that if listing was
declined by the World Heritage Committee, the
property would cease to be identified propertywithin the meaning of the Act and the
proclamation and the regulations would cease
to be in force. So that it could be seen that the scheme of the Act, we would submit, is that
the Parliament has by this scheme confirmed
the status of the aommittee to determine, in
respect of identified property, whether it is
to continue to be regarded as identifiedproperty; if it is not listed, well then the
identification by Australia effectively falls
away because the regime of protection and
conservation which could be implemented under
the Act cannot apply; it ceases to be
identified property.
McHUGH J: What about subparagraph (iv) section 3A(l)(a)?
MR GRIFFITH: Your Honour, that would seem to be a different mechanism that is not covered by
subsection (3). Subsection (ii~)seems to pick up
the transition from (i), (ii) and (iii) in theevent that there is not listing.
ClT40/l/JH 63 9/5/89 Queensland(2).
MR GRIFFITH (continuing): So that I suppose one could say, Your Honour, it does not apply here, but there
is a possibility that (iv) could be asserted to apply
as supporting a proclamation.
McHUGH J: Yes. What I really had in mind, Mr Solicitor, was
a question of Australia enacting legislation to give
effect to its treaty obligations in respect of
relevant property even though the property was not
included on the World List.
MR GRIFFITH: And had not been nominated. McHUGH J: Well, had been nominated or had been rejected.
MR GRIFFITH: If it had been nominated, Your Honour, there is no difficulty because they come under
3A(i)(a)(ii) in any event.
McHUGH J: Yes, I know,but what about the question of identifying
the property? Would that be an objective test in those
situations? I think your answer is -
MR GRIFFITH: We have already answered that, in effect, Your Honour. that "no" -
McHUGH J: Yes.
MR GRIFFITH: - - - and, if we are wrong on that, then only at the very limited level of inquiry that we identified
by reference to Justice Brennan's remarks in GERHARDY.
McHUGH J: Bu4 if it is a subjective matter from the beginning, what does it matter that, ultimately, you include it
on the World Heritage List?
MR GRIFFITH: Well, Your Honour, it matters for the legislative
scheme that it does not because what we say is that
the Convention deals with matters of international
obligation. Although one aspect is identification
by State parties, we say the essential aspect of the Convention is the matter of international co·-operation
which has as its point of transmission to the
international arena to test international obligation,
international benefit, the question of listing.
(Continued on page 65)
ClT41/l/SH . 64 9/5/89 Queensland(2) MR GRIFFITH (continuing): That is the access point to
world perception by the State parties - now 109
State parties - under the operations of the
Convention, and all the various aspects which one sees adumbrated by the preamble, the intention
of the Convention to provide a climate and a
regime of international co-operation to protect
the World Heritage in effect. Now, I suppose
one could express it on the basis of going tothe ultimate issue of world co-operation peace
in effect, that countries are establishing it
as a matter of international commitment; that they desire to have a regime by co-operation, not just acting alone, which preserves these
identified parts of cultural and natural heritage
meeting the strict, although in the terms of the Convention itself, undefined criteria of having this universal and outstanding value. We say, Your Honour, that it is the function of the World Heritage Committee and the actions
of the State parties since the inception of the
Convention which have given content and refined
definition to this definition.
We say, Your Honour, that was the intention
of the parties and the carrying through of that
intention is, as we submit, a matter of international
law, Your Honour, something that this Court can
take cognizance of. In effect our submission,
Your Honour, is that the manner in which the
World Heritage Committee and the State parties
to the Convention have operated the treaty becomes
in itself a mechanism whereby the Court can
· interpret the treaty and discern the reaches
of its obligations. As to Your Honour's specific point on paragraph (iv), we see the point of
Your Honour's observation but as with many issues
that arise, particularly with constitutional
reform, Your Honours, it is perhaps best left
for when they arise. The statutory regime here seems to be one connected with the process so
far as paragraphs (i), (ii) and (iii) are concerned and we go no further in this case to the steps leading to consideration by the committee and
that would seem to be decisive for continuing
of the regime. There is no further decision
by the executive in the event of refusal to list.
It would have ended seven days after 9 December.
(Continued on page 66)
ClT42/1/Ac· 65 9/5/89 Queensland(2) MR GRIFFITH (continuing): The proclamation then would cease
to have effect and the regulations prohibiting
logging would cease to have effect. Naturally
there is a seven day period to enable consideration
to be given to transition matters. So that our position is that whilst the inclusion of the
property in the World Heritage does not impose
any new obligation, nevertheless, the fact of
listing by the World Heritage Committee, in our
submission, in itself sufficiently establishes
the property is subject to the obligations and,
we would submit, that the international obligation
to orotect and conserve means that it is not
dep~ndent on nominational listing, but that
further inquiry as to its existence becomes
irrelevant.
We turn now to consider what does listing
signify and our submission is that it signifies,
firstly,for all Convention purposes, the status of
the property as part of the heritage within the
meaning of articles 1 and 2, we say is indisputably
established. And, secondly, we say that the property
is to be treate~ for all Convention purposes, as
property to which the nominating party is obliged
to protect. So, to draw that together~ our
submission is, on any view, listing in itself
establishes that Australia has an international obligation to conserve and protect the property.
Dealing with the heritage status of the property, we submit that article 11. 2 envisages
that the World Heritage List contains properties
which are part of the cultural or natural heritage within articles .1 and 2, and, are
considered by the Connnittee as having outstanding
universal value in terms of the criteria established
under article 11.5. The definitions in articles 1 and 2
refer to physical features which are:
for various points of view. And our submissions is, of outstanding universal value, that the criteria, established under the guidelines
which one finds on page 291 of volume 2 of the
case stated book, are not separate from or
cumulative upon the criteria implicit in articles 1 and 2
bu~ in our submission, are intended to provide an
objective indication, an objective international
standard, for giving content to the imprecise
criterion'bf outstanding universal value".
ClT43/l/DR 66 9/5/89 Queensland(2)
MR GRIFFITH (continuing): I have already referred the Court to paragraph 14 of the experts' report in
1972 which indicated that, intentionally, no
definition was included in the Convention.
Article 11.2 requires the committee to consider
"outstanding universal value" of a property in
terms of the criteria established under article 11.
So the Convention itself contemplates this process
and we submit that the expression "outstanding
universal value!! has the same meaning in article 11.2
as it does in articles 1 and 2. So that the criteria established under articles 11.5, we submit,
are the means provided by the Convention by which
the World Heritage Committee is directed to assess
whether features identified by State parties as
falling within articles 1 and 2 will be considered by
the Committee as having the requisite'butstanding
universal value".
So, on this view the Committee's consideration
of "outstanding universal value" of a property, in
terms of the criteria, is the process by which
World Heritage status of the property under
articles 1 and 2 of the Convention is established
of the duty of the State party under article 3, but
to the satisfaction of the international community.
we submit that there is a significance beyond merely
saying that there is access to assistance under the
Convention by the listing process - that one can say
then, for the purposes of international law, the
operation of the Convention, it is established tothe satisfaction of the State parties and the
international community, that the property does have
the requisite World Heritage status.
In other words, international law, here it is
a convention itself, provides, we submit, the method
for determining Heritage status and that, we submit,
gives a firm basis for the clear assumption in
articles 6.2, 12, 13, 20 and 22(a), that properties
included in the World Heritage List necessarily form
part of the cultural or·.natiral heritage within articles 1 and 2. And, we submit that each of those
articles mentioned clearly must be construed on that
basis.
So that, in this context, article 12 simply makes
clear that non-inclusion of a property submitted to the
World Heritage Committee does not prejudice a State's
own national assessment under article 3 from which
international obligations, for example, under article 5,
will flow.
ClT44/l/FK 67 9/5/89 Queensland(2)
MR GRIFFITH (continuing): And it is our submission that article 12 in effect provides an element of
consolation in respect to properties where
World Heritage listing in refused by reference
to the criteria and by the consideration and
recommendations of the IUCN or the Bureau and
the World Heritage Committee, so that the basic
purpose of the Convention none the less can be
served; that State parties still are able to act
in the position that it is appropriate for them to take
steps in respect of the protection of those
properties which they have unsuccessfully nominated.
We have already referred to the fact that, in
our submission, this construction, for which we submit
is supported by the preamble, and I have referred the
Court to page 7 of our defendant's supplementary materials, article 31(1) of the Vienna Convention
on the Law of Treaties, which we say would reflect
in any event the customary international law;
that regard may be had to the object and purpose
of the Convention which may be discerned from,
amongst other places, the preamble.
In respect of this Convention, the travaux
are largely unhelpful, but the Court has already been
referred by both my learned friend and myself to
the report of the expert committee. I have referred to paragraph 14 on page 12 of our volume of materials
and the other two paragraphs we particularly refer
to are paragraph 17 on page 13, where the second-last
sentence says:
Each State Party may of course regard a
property that is part of its cultural heritage
or some part of its natural heritage as being
of outstanding universal value, although itmay not be considered as such for all the
purposes of the Convention - that is, it may
not be included in one of the two lists
provided for in Article 11. This is stated explicitly in Article 12.
And the comment on article 11 in paragraph 28 of the
report, which is on page 15, provides:
This is one of the most important provisions
of the Convention, since it assigns to the
World Heritage Committee the task of
establishing two separate lists of property of outstanding universal value forming part of the world heritage ..... .
A "World Heritage List" of all the properties
of the cultural and natural heritage which
the Committee considers as having outstanding
universal value in terms of such criteria as
it shall be called upon to establish;
ClT45/l/VH 68 9/5/89 Queensland(2) And, of course, we know from article 11~2 itself
that it was intended that criteria would be established.
But we would submit that it is a natural inference
from these travaux that at least those drafting the Convention considered that property included in the
World Heritage list under article 11.2 would necessarily be considered as part of the cultural
and natural heritage for all the purposes of the
Convention.
We submit that the content of the operational
guidelines and also the practice of the World
Heritage Committee and of the State parties to
the Convention is also relevant to the construction
of article 11~2~ We refer again to page 7 of the book of supplementary materials, in particle
article 31 of the Vienna Convention, paragraph 3,
which says:
There shall be taken into account, together
with the context:
.....
(b) any subsequent practice in the application
of the treaty which establishes the agreement
of the parties regarding its interpretation.
And we would submit that that provision itself,
of course, is merely confirmatory of the common law,
and, as to that aspect of subsequent practice, we
have in our materials two references to decisions
of the International Court in respect to regard
being had to practice. I do not think it is necessary for me to take the Court to the detail of those two reports; page references are given but in each case the International Court of Justice had reference to,
in the first case, the practice of the General Assembly,
and in the second case, dealing with the Maritime
Safety Committee.. to the practice of its assemblyto consider shipping by reference to tonnage rather
than any other criterion and regarded that prac_tice
as a relevant matter in construing what otherwise
were ambiguous words in the Convention. (Continued on page 70)
ClT45/2/VH 69 9/5/89 Queensland(2)
MR GRIFFITH (continuing): As we have indicated, we submit that this practice is exemplified in the UNESCO
publication which we attach as document 4, commencing
on page 32 of the materials and we have referred the
Court particularly to pages63 and 67 which, we say,
summarizes this approach as being the role - and
as I also referred to this morning, the article by
the agreed role - of the World Heritage Committee and, in addition to the reference I gave this morning,
on page 74 of the materials, in the rigpt:-,hand-column of page 73, Professor Slatyer said: The Committee has four main tasks. First
it has the task of assessing and either accepting
or rejecting properties nominated by variouscountries for inscription on the world heritage
list.
Then, in the left-hand column on page 74, he refers
to the fact that::
In fulfilling this role the Committee
realized at its first session that it needed
to generate rules of procedure and operational
guidelines to provide a firm basis for its
activities and to ensure that it acted in an
objective and professional manner.
He refers to the time spent in evolving those guidelines
and also to the role, particularly of the IUCN and
ICOMOS in respect of cultural heritage. We say that that is, perhaps, not a deep but it is a convenient
contemporary summary of the perception and practice
of the State parties as to the operation of the listing
process.The Court has been referred briefly to the guidelines set out on page 291 and following of
volume 2 of the case book. We desire to make a
few references supplemental to those made by my learned friend, Mr Davies,and I should indicate that
our references are sununarized on pages 6 and 7 of
the annexure to our contentions. We have annexed
to our contentions a document which has, as its first
page, a table procedure for processing nomination.
That, in itself, is derived from the guidelines which
are found on pages 308 to 310 of volume 2 of the materials
and it may be of assistance in looking at this material
if I hand to the Court a separate photocopy of page 290
of the case stated book which is a glossary of
international organizations. Although it is in the
book, it is quite useful to haveitas a separate sheet to work out who the parties are. Of course, we know who the committee is; that is established by the
Convention. The Secretariat is just what it says,
ClT46/l/SH 70 9/5/89 Queensland(2) the Secretariat established under article 14 to
service the cormnittee, based in Paris. The World Heritage Bureau is the executive members of the
cormnittee, its chairman, five vice chairmen, each
from the representative national grouping and a
rapporteur and that, really, is vested with the
functions of the cormnittee between meetings and
one of its principal tasks:
is to assess new nominations ..... and to make
recormnendations to the Cormnittee.
And we see that that occurred in this case and, in
fact, it is contemplated by the process of considerationthat one sees surmnarized on page 308 to 310. Then we have reference to the IUCN which is the only relevant
referring body here because, as I mentioned, although
the nomination had a reference to cultural heritage,
in fact it would seem that there was no independent
reference to that in the listing process and: if there
had been, it would be the International Council of
Monuments and Sites that would have had consideration
of those so that they seem to be the central bodies
and, when one looks at the chart which is the first
page of the annexure to the contentions, one sees
that on the left-hand column, the normal timetable;
right-hand column indicating that basically thetimetable was complied with here.
BRENNAN J: What is this taking us to, Mr Solicitor? MR GRIFFITH:
Your Honour, what I wish to establish is that the guidelines involve a deep consideration of the merits and an expert, independent, qualitative assessment of the World Heritage status for the purpose of
international recognition under the Convention. (Continued on page 72)
ClT46/2/SH 71 9/5/89 Queensland(2)
MR GRIFFITH (continuing): By establishing the depth of that inquiry, Your Honour, we seek to
reinforce our contention that that, on any view,
must be regarded as sufficient to establish
aspects of international obligation. It may be,
Your Honour, that it is otiose to reinforce it,
but, in our submission, it is appropriate to
demonstrate the depth of consideration on themerit to overcome the suggestion that it is
merely a matter of secondary aspect dealing with
the issue of eligibility to financial and
other assistance. In our submission, Your Honour,
that is not the nature of the mechanism established
by the Convention; the nature of the mechanism is
to establish for the purpose of, in effect,
international law and international co-operation
the absolute status of the property to be regarded
as between the State parties and also by other
international parties and bodies. For that reason,
Your Honour, we submit that it is relevant to look
at the merit - quickly, it does not take very
long, Your Honour.
So far as the establishment of criteria are
concerned, Your Honour, paragraph 6 on page 294
of Volume 2 sunm1arizes the general principle
as to the Convention providing:
for the protection of those cultural and
natural properties deemed to be ofoutstanding -universal value.
It indicates:
It is not intended to provide for the
protection of all properties of great
interest, importance or value, but only for
a select list of the most outstanding of these
from an international viewpoint.
It refers to the fact that the definition of articles 1 and 2 were:
were interpreted by the Conm1ittee by using
two sets of criteria -
which are, of course, set out in paragraphs 21 and
33 below.
Paragraph 9 on page 295, the next page,
says:
The fundamental principle stipulated in
the Convention is that properties nominated
must be of outstanding universal-value and
the properties nominated therefore should be
carefully selected.
CIT47/l/JM 72 9/5/89 Queensland(2) And then it. refers again to the criteria.
Paragraph 7, further up the page, encourages the
State parties to submit tentative lists,which
can be the subject of further consideration as
to whether they should be regarded, of the requisite
status.
In paragraphs 15 and 16 also, there are
statements emphasizing the requirement of universal
value. In paragraph 21 there is a definition of
"cultural value" which we need not be concerned
with. Paragraph 33 is the particular paragraph
dealing with World Heritage as natural heritage.
My learned friend has perhaps sufficiently referred
the Court to the aspects of integrity required
in paragraph 3~ and in subparagraph (iii) the four
different possibilities as to categories for
qualification. Of course, it has been seen t.ha t the case as here - the particular property here - was accepted
by IUCN, by the bureau and by the World Heritage
Committee as meeting all four requirements.
Paragraph 44 on page 304 refers to the
fact that the:
List should be as representative as possible of all cultural and natural properties which
meet the Convention's requirement of
outstanding universal value and the cultural
and natural criteria adopted by the Committee.
This information is required by paragraph 50 on
page 306 to be included in the nomination form.
(Continued on page 74)
CIT47/2/JM 73 9/5/89 Queensland(2)
MR GRIFFITH (continuing): So that we submit that these guidelines confirm that the committee's task
is to evaluate the outstanding universal value
as is provided for in articles 1 and 2 and it
establishes a legal status and administrative
framework. And one sees that in paragraph 50
in particular of the guidelines to show that the
connnittee has regard to the ability of a Stateto fulfil its obligations in relation to the
property under articles 4 and 5.
We submit that the actual nomination process for this property demonstrates a course
of listing by careful, international evaluation
of the heritage values of the property byreference to the committee's published guidelines
and interpretations of the definitions of
heritage. And this process reflects the high
level of care and expertise recognized byinternational law and we refer particularly to
articles 8, 9 and 10 of the Convention leading to
an evaluation which the State parties have agreed
by their accession to the Convention to accept.
We would then take the Court briefly to
the chronology of nomination and listing which
occurred in this case. It is quite conveniently
summarized in our annexure to the submissions
so that for the purpose of this quick review it
is probably not necessary for me to take the Court
to long passages of the materials. But, if we
could indicate to the Court that we do rely, and
we particularly refer in the following few pages
of this annexure, to the particular parts which
indicate detailed, qualified and informed
consideration and dispassionate consideration on the merits of the property as qualifying to meet the requisite criteria of being both outstanding
and universal in its natural heritage
characteristics.
The nomination as my learned friend referred to, 23 December 1987, on pages 11 and 12
of volume 1, the property is identified
by reference primarily to natural heritage. The Convention definitions are set out in full in the nomination form but, on page 27, there is an
assertion which was vindicated that the
nomination was justified on the grounds of
fulfilling all four criteria - those criteria,
as I mentioned, are set out in pages 25 and 26.
And the requirement of the form that the
nomination make a statement of their significanceis met on pages 27 to 38 which details asserted
qualification on each of the four heads, although
of course, only one suffices. As to that
ClT48/l/JH 74 9/5/89 Queensland(2) nomination, in May there was a technical
review of the nomination by the IUCN, which
appears on pages 147 to 159 and there is a
description on page 147 of the manner of and
who took out that technical review, that it
was by reference to the operational guidelines. guidelines dealing with natural heritage alone - and refers to a review of that field-work by
a panel from IUCN's policy and programme
division. In the result at page 148, one sees
the view taken of qualification. There is a
summary at pages 149 to 151 of the nomination,
a technical evalution on pages 153 to 159
which raise questions about human impact,
boundaries, management capability and it was
said in passing on page 158 that the
nomination was the most comprehensive ever
received for natural world heritage. At page 158, the IUCN concludes that: The property in general terms
therefore merits inscription on the
World Heritage list on the basis of -
each of the four natural heritage criteria.
At page 159 appears the recorrn:nendation
that the site should be inscribed subject to
specified amendmentsand clarifications.
(Continued on page 76)
ClT48/2/JH 75 9/5/89 Queensland(2)
MR GRIFFITH (continuing): At the meeting of the Bureau, which is the chairman, vice-presidents and the
rapporteur, on 14 to 17 June, one picks it up
from page 160 and following of volume 1 - theparticipants are listed on pages 175 to 176 -
representatives of the IUCN:
attended the meeting in an advisory capacity -
as they are entitled to under article 8. One
sees that on page 160. The report makes a note about the status of the Convention, also on 160,
and the Bureau recommended that it should inscribe
the property relying on criteria (i) to (iv).
In this case at the meeting one picks up
that of the 43 nominations examined by the Bureau
26 were recommended for inscription - page 163.
And on page 169 one picks up that four positively
were not recommended so that, in effect, they
were refused and those nominating them, of course,
would be able to rely on article 12 in respect
of measures other than matters arising from
inscription under the Convention. Those matters
concern the Hortobagy National Park in Hungary,
which one sees is nomination 474 on page 169;
the SS "Great Britain" which seemed to be in
difficulties because it was an immovable "likely
to become a movable"; Navan Fort which was refusedon the basis, one would think, that it just did
not come up to the criteria; and, Menai and Conwy
suspension bridges which were regarded as not
meeting the criteria as to authenticity. So that one can see that the committee acts both to refuse and to defer, one sees that also in
these relevant pages, as well as to accept.
In September 1988 Australia responded to
the Bureau's request, dealing particularly with
the issues of boundaries, private land and management,
and one picks that up on page 181 and following. There was an extensive review of the boundaries,
67 individual areas were examined and there was
some alterations of the boundary. There is a
lot of material in volume 1 dealing with that
issue of review of the boundaries.
In October 1988 there was a revised technical
evaluation by the IUCN - page 282, and in that
evaluation the IUCN reiterated a few of the property
merits of inscription - page 28 7, and recommended
the nomination be approved - page 288.
In December 1988 came the final recommendation
of the World Heritage Bureau - one picks that
up on page 289, where the Bureau recommended
to the full committee that:
ClT49/l/AC 76 9/5/89 Queensland(2) taking into account the revised evaluation
by IUCN and additional information provided
bv Australia ..... the Bureau recommends
that the Committee inscribe the property.
The meeting of the committee occurred on
7 December 1988 - one sees a transcript of thaton page 325 to 337. And,as referred to by my
learned friend in passing, it is clear that the
representative officer, Dr Thorsell of the IUCN,
at page 325 and at other stages throughout this
transcript, expressed a very strong view as to
the qualification of the property. In the firstparagraph on page 325 it says it is:
one of the top five that I've been most
impressed by in terms of its overall natural
quality.
He then says in the next paragraph it qualifies
at all four categories. The last two sentences
of that page, he says:
This all adds up to immense importance for the area for science and conservation
interests. And our conclusion is, in the
report, that it is one of the most significant
regional ecosystems in the world contained
in this nomination.
(Continued on page 78)
ClT49/2/AC 77 9/5/89 Queensland(2)
MR GRIFFITH (continuing): He makes other connnents in passing about:
superlative scenery and its unique meeting
of rainforest and mountain slopes coming
down to the Great Barrier Reef-
and refers, on page 326 to:
very high merit on the site -
333, perhaps an inelegant expression:
an exceptionally unique area -
he thought. And at pages328and 329, the relevant officer of the secretariat read out the
reconnnendation of the Bureau, in English becausethere was an anglican State party involved,
saying: "The recommendations", and then she
reads the reconnnendation that it be inscribed
on the basis that there be a monitor ofconservation over the next two years.
One finds that the Connnittee, having
debated that to page 337, at page 337, there
being no further debate on the usual unanimous
basis,the Chairman said:
We accept the inscription of the Property
to the World Heritage List. The inscription is accepted.
And it is our submission, although perhaps it is
not necessary for the purpose of our submissions
but when one looks at the conduct of the State
party one sees an independent and rigorous
application of the definitions of articles 1 and 2
as articulated by the practice of State parties
and the adoption of the guidelines in respect of
the acceptance of this property as being inscribed on the list as complying with the requirements
for World Heritage.
It is possible that our primary submission
that the definitions applied by the guidelines are
equated to the expression referred to -welLnot
really defined but identified in articles 1 and 2
so that they mean the same things that inscription
on the list means that the property is accepted
as meeting the requirements for World Heritage of
articles 1 and 2 and not more. An alternative construction of article 11.2 might be, we doubt
that it is but we have suggested it as a possibility,
that the World Heritage Connnittee is required by
article 11.2, not only to inquire as to whetherthe property has "outstanding universal value" in
ClTS0/1/DR 78 9/5/89 Queensland(2) terms of the criteria in articles 1 and 2, but to
itself consider whether it has independently
outstanding universal value in terms of its own criteria. So that if one adopted that approach
one would say that the inquiry in terms of the
criteria established by the ~ommittee under
article 11.5 would subsume the inquiry as to
world heritage status under articles 1 and 2.
So that one could perhaps then postulate that the function·of the corrnnittee is to choose from
properties submitted, which come within articles 1
and 2.Those of which are superlative and worthy
of special attention on the basis that the greater
includes the lesser and, I suppose,possibly some
support for that construction could be derived
from article 12, which indicates the lesser remains
"for purposes other than" issues arising from the
consequence of inscription on the list. It is our
submission that that construction is not the
preferred construction.
We would submit that the terms of the
Convention, the course of practice of the State parties, the terms of consideration by, which are
exampled by the course of consideration in this
case and the articulation of the criteria, are all
derivedto give content to the deliberately undefinedexpressions of definition in articles 1 and 2.
(Continued on page 80)
ClT50/2/DR 79 9/5/89 Queensland(2) l1R GRIFFITH (continuing): But, having said we prefer the
former approach, we submit that whatever approach
is adopted, the decision to list necessarily
involves a determination by the Committee that
the property forms part of the world cultural or
natural heritage as defined by articles 1 and 2.
We submit that this of itself is of international
significance. The c0mmittee is a body on which the State parties have, as a matter of international
law under the Convention, conferred the task of
evaluating the properties. Even, we submit, if the view of the committee were considered to be wrong,
the existence of the international obligation
would be unaffected.
Further, we submit that the Convention in the international community proceed on the basis
that listed properties necessarily form part of
the heritage as defined. I have referred already to articles 6.2, 11.2, 12, 13, 20 and 22A. Even if it was only an assumption that the property
has been correctly identified under article 3 bythe nominating party, we submit that the assumption
is itself sufficient for the purpose of Australian
law to determine the issue of international
obligation and to exclude inquiries to the objective
fact as to whether or not the Court would itself,
were it to consider the issue, regard the property
as world heritage.
We say it is sufficient that the international
perception gives rise to the international obligation to protect and conserve and one need not
say there is then an independent issue as to the
truth of the facts underlying the perception. Further,
one could say that, because the obligation to identify
part of the heritage has been performed bona fide
on behalf of Australia by the executive and accepted
and acted upon by the international community, we
say that it is now quite inappropriate for that issue
to be questioned by a domestic court. Perhaps it is
putting it in other words to say the obligation is sufficiently established by the fact of listing
independently of determination of world lieritage
status.
Now, in our contentions we say on paragraph 4
that we put our central argument in two ways. To some extent I think we have said almost all we wish
to say on the first approach and we have already said much of what we intend to say on the second
approach. B~t, looking to the second approach,
paragraph (b) of the contention 4 and that is
picked up on paragraph 8 and following on page 3of the contentions, our argument is that inclusion
of the property on the list constitutes an international
acknowledgment of the status of the property which
itself is sufficient to impose on the nominating
party the obligation of conservation and protection
ClTSl/1/VH 80 9/5/89 Queensland(2) under articles 4 and 5(d). We say although the Convention partly achieves its aims by imposing
duties of identification and protection upon the
State parties at the national level, particularly
articles 3, 4 and 5, an essential purpose of the
Convention is the participation of the international
community as a whole in the protection and
recognition of the cultural and natural heritage
and to this end to establish an effective system
of collective protection, one picks this up from
the eighth and ninth paragraphs of the preamble
and one finds these aims expressed specifically
in article 6 and 7 and also in the scheme
of international co-operation and assistance
established by articles 8 to 29, where one has the
World Heritage Committee, the two lists, the
World Heritage Fund, international assistance, educationalprogrammes and reporting. All those
mechanisms, we submit, are established to create,
as a matter of international co-operation, and
most certainly international concern, a regime
for the recognition and protection of these
outstanding elements of the world's heritage.
Of course, at the national level, States parties
have positive duties to identify, delineate, protect
et cetera. But we submit that there is also a positive duty under article 11.1 to submit to the
World Heritage committee an inventory of property
forming part of the heritage. That is one of the
obligations of a State party. And, of course, when one looks at section 3A of the Act one sees, at least in paragraphs (i) to (iii) of the first
subsection, a reflection of that is that the
mechanism is one leading to a process of identification,
nomination and listing.
(Continued on page 82)
ClT51/2/VH 81 9/5/89 Queensland(2) MR GRIFFITH (continuing): In other words, recognizing the
obligation under article 11, to take positive steps
to provide a list to engage the process of
international co-operation for identification and
protection by submitting a list of properties for
inclusion. And I refer briefly to the guidelines,
I think it was paragraph 7, indicating that it was
also contemplated there would be a preliminary list
of possible nominations.
The level of national state protection is not
altered, of course, by inclusion of the property on
the World Heritage List, but the level of international
protection is enhanced. When one looks at article 6.1
and article 6.2. one can see this. The State parties
are under a positive obligation to give their help in
the protection and conservation of the heritage, but
only if the property is on one of the two lists and,
of course, if the State on whose territory the
property is situated request. So, that is the
trigger mechanism, not only for entitlement to call
for assistance but the reciprocating positiveobligation to give it.
BRENNAN J: Mr Solicitor, could the question ever arise in litigation in the international field, at the
international level?
MR GRIFFITH: The question of international obligation to protect?
BRENNAN J: Yes. And, if so could it involve a challenge to
the validity of the listing?
MR GRIFFITH:. Well, Your Honour, firstly, there is some mechanism to deal with what happens when the protection is not
carried out. One element of that is in the guidelines on pages 302 to 303 - there are provisions
for delisting if there is an erosion of status. So
that is one response of the Convention - the way it
works by the State parties. There is no specific
article providing for it, but the way it works, in practice, Your Honour, is that there is a mechanism to
remove from the entitlement - remove from the, I suppose,
the element of obligation to assist if there is an
erosion in status. And then there is other mechanisms provided in the quidelines to counsel and help
prevent that happening if it looks like a risk.
Now, Your Honour, it is a matter of different
question whether, if there was a straight assertion
that a party was in breach of its obligation and a
party sought to avoid that consequence ly, for example,
asserting that the property was not, in fact, World
Heritage status. Now, Your Honours, the matter of
jurisdiction, it would depend, I suppose, on
questions of submission to the jurisdiction of the
International Court of Justice whether the parties
ClT52/l/FK 82 9/5/89 Queensland(2) would agree.to resolve the issue, for example, by
reference to the permanent court of arbitration,
or take some other mechanism. But, it would be
a matter of the ordinary operation of international
law if there were a dispute.
But, we would submit, Your Honour, that the issue really here is more the question of perceptions in international law - that the fact of inscription, in our submission, elevates
the property to an absolute status for the purpose of recognition of a status, recognition of duty on the State party, who has both identified the.property
and in whose territory the property is, and also
identifies matters of entitlement, both to technical
and financial assistance, matters of obligation on
parties to assist if they are called upon to do it
and those other matters.
But, Your Honours,we would suppose it could
not be said that there must be an immediate
enforceable right in the International Court - it
would depend on all the usual factors of jurisdiction,
but we would submit, Your Honour, that as a matter of
analysis, it would be possible to say there was
breach of obligation if there was a derogation
established as a matter of fact from the stated obligation in respect of identified properties.
Now, as to whether there would be difficulties if
the property were not listed, but was identified
under article 1 and 2, perhaps, one could say, there
may be more difficulties there, Your Honour, but
the Convention would operate according to its terms.
When one looks at the basic structure of the
mechanism of the implementation in Australia,
Your Honour, one sees in cases such as
TASMANIAN DAM and RICHARDSON, this case demonstrate
a course of identification, nomination, listing,
with the Act contemplating if it is not listed, well
then the element of protection, which could be
implemented under the Act, falling away, not because of constitutional power, but because the Act does not
provide for it to remain.
(Continued on page 84)
ClT52/2/FK 83 9/5/89 Queensland(2)
MR GRIFFITH (continuing): We submit that the inclusion in the list is a precondition to the State on
whose territory the property is situated becoming
eligible for direct international assistance.
That is articles 13, 20 and 22. Of course, article 13.1 imposes on the cormnittee a duty
to study requests for assistance but confined
only to property either included or potentially
suitable for inclusion in the list. There is
an exception under article 13.2, but subject
to some exceptions article 20 specificallyprovides:
international assistance provided for
by this Convention may be granted only
to property ..... which the World Heritage Cormnittee has decided, or may decide, to
enter in ..... the lists.
Since the international scheme of co-operation
established by articles 6 to 28 has as part of
its essential mechanism the inclusion of the
property on the World Heritage List and since
parties are obliged to submit properties ininclusion in the list, and since the
international scheme of co-operation is designed
to complement and support the actions of State
parties in their efforts to conserve and identify
the heritage - and one picks that up from the
preambles, as I mentioned, eighth and nine -
paragraph of the preambles and article 7,
we would submit that it must follow that the
inclusion of the property on the list is conclusive
of the existence of international obligation in
respect of the property.
If we could refer to what Your Honour
Justice Brennan said in the TASMANIAN DAM case,
158 CLR at page 226. Your Honour said: what is in form an obligation can be taken to be an obligation for the purposes
of s.5l(xxix) if a failure to act in
conformity with those terms is likely to
affect Australia's relations with other
nations and cormnunities. That can be easily
tested. Would those relations be affected if
Australia failed to take any step in accordance
with Arts. 4 and 5 towards the protection and
conservation of a property situated in Australiaof such outstanding universal value that it is
part of the cultural heritage or natural heritage
of the world (especially a property listed under
Art. 11) when a step is needed to avert or
minimize damage to tb.e property? Unless Australia
were to attribute hypocrisy and cynicism to the
CIT53/l/JM 84 9/5/89 Queensland(2) international community, only an affirmative
answer is possible.
We would submit that were it otherwise the
whole scheme of the international co-operation
would be pointless. If State parties can be
under a positive obligation under article 6.2
to help another State in protection of the property
on either of the lists in some other State territory,
it cannot be contemplated that the recipient
State could itself deny the obligation under articles 3, 4 and 5 to protect the listed property,
or, we would say, rely upon determination of a
municipal court to say that it was not of World
Heritage status. Because the fact of listings
give rise to an o~ligation in other States under
article 6.2, as well as being a central part of
the whole mechanism of international co-operation,
we submit it follows that listing conclusively
establishes the obligation to conserve and protect.
Of course, since the important process of
assistance is essentially restricted to properties
on the list, it cannot have been contemplated
that a State party which had submitted a property
for inclusion on the list, which had succeeded __ in
having the property listed, could deny a
positive obligation to which international
assistance is but complementary to protect the
property.
(Continued on page 86)
CIT53/2/JM 85 9/5/89 Queensland(2)
MR GRIFFITH (continuing): As a practical matter, in international terms, how could a State party
deny the obligations to protect, which
attached to the property, it is successfully
submitted, and for which if it requests it mayreceive benefits. And, of course, practical
benefits are not merely financial ones; they
can also include aspects of international standing.
One of the matters provided for under the
Convention is to provide for biannual publication of
the World Heritage List. And, it is clear from the publications which we have put before the
Court that the mere fact of inscription and
publication carries with it its own element of
international benefit and also international
furtherance of the elements of co-operation
provided for by the Convention.
DEANE J: Mr Solicitor, article 12 refers to "purposes other than those resulting from inclusion in
these lists". What purpose results frominclusion in the first list? What on earth
does that mean?
MR GRIFFITH: Your Honour, there are some difficulties. One derives some assistance from the report of experts I have already referred to, Your Honour,
as to article 12 and - really, doing the best
we can, Your Honour - it would seem the most
obvious explanation of article 12 is that it is
a sort of an attempt to provide a consolation
prize, to say that, "All is not lost if your
nomination is not recognized by our rigorous
standards", and, Your Honour, in essence it is
difficult to see any other consequence other thanthe fact that one can say that the State party
who has identified the property as world
heritage can still validly say that it is world heritage and meets the requisite standard under
the terms of the Convention.
DEANE J: It is easy to sort of try to identify purposes for having the list and purposes
for including something. I was just wondering whether the context tells us what purposes
result from inclusion and - - -
MR GRIFFITH: Your Honour, the purposes resulting from the list are directly ones entitled to things
such as technical assistance, financial
assistance but, we say, Your Honour, there is a
further consequence resulting from inclusion in
the list; that is, there is a complete recognitionfor the purpose of the Convention and for the
purpose of the arrangement between the State
parties of World Heritage status as between the
ClT54/1/JH 86 9/5/89 Queensland(2) parties, Your Honour. There is a recognition
of the status and the facts of entitlement
obligation that arise from that and, Your Honour,
when one sees now that the Convention has 109
members - the, number of properties listed - the
element, I suppose one could call it, of
international propaganda in raising levels of
not merely national but also individual
perception of the importance of preservationof the world heritage.
In a real sense, Your Honour, those matters
so far as they are propagated by the
mechanisms established by the Convention, arise
from listing; but that is to go more into the
spirit of the operation of the Convention and its
subsequent history since 1972 than relying on
a particular paragraph.
DEANE J: But, you cannot point to anything that really helps identify how a purpose results from
inclusion in a list?
MR GRIFFITH: No, Your Honour, it could be said that article 11 could be differently and perhaps
more efficaciously worded but it is a question
of giving the appropriate content - having regard, Your Honour, to the experts and to why they put it there.
MASON CJ: What you say is supported by what appears on page 13 of the supplementary materials
relating to article 3 in the travaux
but, again, the connnents there do not manageto identify any purpose other than the,
specific purposes. It is in the second-last
sentence in paragraph 17.
MR GRIFFITH: Yes, Your Honour, in paragraph 32 on page 15,
it is not really taken any further - that is
the specific note on article 12. Although perhaps some assistance, Your Honour, is
derived from the note on article 3 on page 13
because the first sentence indicates it was a
new provision:
inserted by Working Group II in order to
make it clear that each State Party to
the Convention is to determine which
properties situated on its territory are
part of -
its heritage.
ClT54/2/JH 87 9/5/89 Queensland(2)
MR GRIFFITH (continuing): So that it would seem that in the drafting process the basic principles of the Convention
were drawn together without having an article 3 and
that was more or less introduced later to provide a
specific provision but, in the context, none the less,
Your Honour, of the mechanism of the corrnnittee to
consider listing on the merits.
Another construction which might have been
possible of article 12 to say is that it could apply
whether or not the property had been the subject-matter
of an application to list but we would submit that,
when one has regard to the context appearing after
article 11, probably the more appropriate reading
is to regard it as picking up properties, one of the,
say, four properties we referred to in the 1988consideration where listing was refused, such as the
..... Bridge, on the basis that it was not sufficiently
appropriate to list it but there does not seem to be all
that much material on article 12 that we have been able
to discern to take the matter very much further.
Turning brieflt, then, to beyond matters of
obligation which we sayare sufficiently covered by
6(2)(b), we also rely on paragraphs 6(2)(c) and 6(2)(d)
on page 5 of the print of the Act. My learned friend obliquely has sought to argue questions of validity.
Our submission is that validity is not in issue, firstly,
because it was not pleaded but we feel it is appropriate
for the Court, perhaps, to resolve this issue if it feels
it is appropriate and we submit in paragraph 2 of our
contentions that, as to these paragraphs, of course,
6(2)(b) was specifically upheld in TASMANIAN DAMS.
Only Justice Murphy specifically upheld paragraph 6(2)(c)
but we submit that the validity of 6(2)(d) and 6(2)(d)
must now be regarded as sufficiently established and
would rely not merely on the references to
Your Honours' judgments in the DAM case which we
there set out, but we would submit that the references
to the judgment·.. in RICHARDSON there set out also,
would implicitly cover the situation of both paragraphs (c) and (d). So, we say that, for the reasons there stated by various of Your Honours,
paragraph (c) and paragraph (d) are within power.
We would submit that paragraph (c) just as much
as paragraph (b) would apply here, according to its
terms. Perhaps it is otiose to seek to do so because
if the protection or conservation is a matter of
international obligation, we submit it must follow
that protection or conservation is necessary ort
desirable for the purpose of giving effect to the
Convention and, of course, the benefits arising from
listing under article 6.2 13, 20 and 22(a) may make the protection or preservation desirable bearing in
mind the entitlement to benefit and the possibility
ClTSS/1/SH 88 9/5/89 Queensland(2) of delisting that one can pick up, as I mentioned
in paragraphs 35 to 43 of the guidelines which
con:rrn.ence on page 302 in volume 2 of the materials.
We would say further that in view of the decision
of the executive to ratify the Convention and to
nominate the property and to give effect to the
Convention in the Act, at least after listing the
property of the property and having regard to the
terms of the Convention, subject to questions of
bad faith which do not arise, the Court would be
compelled to the conclusion that, in the circumstances,
protection and conservation of the property should be
regarded as desirable.
Now, we adopt a similar approach with
paragraph 6(2)(d). We say it is self-evident that upon listing the protection or conservation must be
regarded as a matter of international concern. The
obligation to protect and conserve applies by the
terms of the Convention. The obligations are perceived by the international body established under the
Convention and by the State parties to attach in
respect of the property. So that, whether or not the property could be established as a matter of objective fact, not to be of world heritage, the
failure by Australia to take proper measures for the
Australia's relations with other countries. protection or conservation would be likely to prejudice
(Continued on page 90)
ClTSS/2/SH 89 9/5/89 Queenaland(2) MR GRIFFITH (continuing): Australia would be perceived to be
in breach of an international obligation and the
international obligation is one, of course, relating
to the sensitive matter of the world's remaining
and diminishing tropical rain forests. As to this
aspect, it is our submission that the inclusion of
the property in the list has in itself important
international consequences merely from the fact
that it joins a growing list in respect of the
operations of the Convention with some 109 countries
which, just in the last year, have come to include
Russia as well as other major world powers and,
of course, almost all our neighbours in the Pacific
and Asia.
One aspect where one can say that inclusion
on the list is important in itself is that there is
a scheme of international co-operation includingeducation, article 27; updating of the heritage
list, we have referred to,article 11, and also the
requirement that each State party report to the
general conference of UNESCO as to the steps
it has taken under article 29. In the circumstances, we submit that it can be seen that a failure by
a State party to protect the property which itself
has submitted would be regarded as something which
could be said to weaken the fabric of the Convention;
arouse feelings of perhaps despair and hostility
in other countries who adhere to the ideals of the
Convention; expose Australia to charges of self-interest
with disregard to international obligations; perhaps
deprive the country and its executive of moral
authority in matters of international affairs and
certainlyretard progress towards the attainment of
the objects of the Convention. So, in that way, we
would submit that it is not difficult to articulate
bases for prejudice to countries' relations with other
countries.
The remaining matter to deal with is the question of drawing the threads together of our submissions
as to the role of the Court. In essence we suppose
that our submissions to that have already been
covered by our submissions to date. We say, of course, the Court must be satisfied as to the conditions
for validity under the Act and we have referred to
the fact that the only one which, even on the
pleadings, is in issue here, is the question of
validity of the proclamation made under section 6(2)
with the passing suggestion as to possible invalidity of paragraph(2)(c) and (d) which we have already dealt with.
Now, we submit that one should, having regard to reading the Convention and its objects as a whole,
regard listing as authoritative determination of the
quality of the property for all international
purposes, although, of course, the reverse is not
true. If it is determined not to list, article 12
ClT56/l/VH 90 9/5/89 Queensland(2)
may still apply. But the contrary position, as far as listing is concerned, we submit, is that for
all international purposes, certainly all purposes
under the Convention, the property is to be regarded -
and that includes matters of obligation as of
World Heritage status. Thus, if the nature of the
obligation is analysed, we submit that Australian
courts are not deprived of jurisdiction as to
inquiry into facts. It is just that the facts
that are the subject-matter of legitimate inquiry -
always assuming no allegation of bad faith - are
narrow. The court has to be satisfied as to identification, nomination and listing, and these
are matters of fact but they are not disputed facts
in this case other than the issue as to the underlying -
it is asserted - fact as to the actual actual physical quality of the property as distinct from the finding
by the Committee as a result of the nomination and
consideration in respect of listing under article 11.2.
We have already made the point that even if the
World Heritage Committee is asserted to be wrong -
and that is,,1 in effect, the plaintiff's assertion.
They are not merely saying, "We want to prove as a matter of fact the issue of status," they are saying, in effect, "We wish to establish that the
World Heritage Committee is wrong." We submit that
it is demonstrated from the materials the WorldHeritage Committee took an affirmative view on
whether or not this property met the qualification
under articles 1 and 2. The plaintiffs seek to engage the Court in inquiry to say the World
Heritage Commitee is wrong. We submit that that, in essence, is an irrelevant issue, because even if
that were the fact, the relevant fact on which the
international obligation rests in this case, for
the purpose, for example, of paragrc!:ph (b), is the
fact that the property has been listed. That is
sufficient in itself to estarnlish the obligation.
It may be established in other ways under the
Convention. but it is sufficient for all purposes, we would say, of the validity of the proclamation, to say it has been established in that way.
(Continued on page 92)
ClT56/2/VH 91 9/5/89 Queens land ( 2)
MR GRIFFITH (continuing): When one draws it together, the ambit of possible factual inquiry under
paragraphs (b),(c) and (d) when proclamations are
made after the property has been listed,
assuming good faith, is very limited. So that the existence of the obligation is confirmed by
listing and the Court- need only be satisfied
of the fact of listing and that resolves issues of
constitutional validity of the exercise of
statutory powers under the Act.
Australia has acted in accordance with its
international obligations. The procedures of the Convention have been faithfully complied with and, we would submit, that as a matter of domestic law,
the responsibility of fulfilling the relevant
international obligations lie primarily with the
Corrnnonwealth, as the executive in the exercise
of ])lrerogative power. Your Honours, the Chief Justice and Justice Brennan pointed out in
RICHARDSON v THE FORESTRY COMMISSION, (1987-1988)
164 CLR 261 at page 296: "'tt'he ultimate decision to be made by the Executive qovernment, whether
the area, or parts of it, should be proposed forinclusion in the World Heritage Lis4 involves
a calculus of factors, including factors which
are cultural, economic and political."
We would submit that these factors are stronger
in the case of an international tribunal. And we submit that the reasons to defer to an international
tribunal are even more compelling than in the case
of an executive in respect of acts of nomination.Here the decision of the executive has been acted
upon by the international corrnnunity so as to give
rise to new international rights and obligations.
And we submit the case for accepting and acting
on the decision of the executive, conf.irmed by the
decision of the committee established under the
Convention is overwhelming. We have referred, without giving a reference to Your Honour's discussion of these issues in
GERHARDY V BROWN, in fact it was the last page of
the reference given by my learned friend, Mr Davies,
159 CLR 70, in particular Your Honour's discussion
on pages~ 138 and 139. We refer t:.-here "to ·Your Honour's reference to ~he classic statement of the doctrine
as to the acceptance of legislative or executive
judgment in BAKER V CARR, and submit virtually all
the factors there referred are relevant here,
but,we would submit, more strongly relevant dealing
with an international executive, as it were,
rather than the municipal one.
We submit that when one is considering that
the Court is invited to second-guess a World
Heritage Corrnnittee's determination, well then the
ClT57/l/DR 92 9/5/89 Queensland(2) case for non-involvement of the court is
established. We say once listed you cannot say the property can reasonably be regarded as
World Heritage. It has been so identified by
the international body under the Convention,
the proclamation was made after it was so identifiedand at that time the property cannot reasonably be
regarded as not being of world heritage.
Our final submission is that made in paragraph 15
the property is incapable of being reasonably regarded as of world heritage status is untenable and no further inquiry of fact could be
of our contentions and that is, that the international allegation that
determination or acceptance of the status of theproperty constituted by its inclusion in a World
relevant. We, therefore, submit that the first of the questions put before the Court should be
answered yes, and the second question not answered
or answered unnecessary to answer. If the Courtpleases.
MASON CJ: That you, Mr Solicitor. Yes, Mr Davies.
MR DAVIES: Thank you, Your Honour. Your Honours, we made the submission this morning that the obligation to
protect arose irrespective of identification and
Your Honour Justice Dawson pointed out the
difficulties of enforceability at that stage. The point, in our respectful submission, of making
that submission, is not with respect to enforceabilityat that point, but with respect to reviewability
at a later point. And, indeed, in our respectful submission, in that sense the submission is correct.
We referred Your Honours to the statement of
Your Honour Justice Gaudron in RICHARDSON, page 341,
this morning. Could I refer Your Honours also toa statement by Your Honour Justice Brennan in the
TASMANIAN DAM case at page 235, where in dealing with the external affairs power of the Act and
section 6, Your Honour said, in the third sentence
under that heading:
Identified property is not necessarily
property with respect to which the
legislative power may be exercised. A property which is submitted to the World inclusion in the World Heritage List (and is accordingly identified property under s. 3(2)(a)(i) may not prove to be part of the cultural or natural heritage.
ClT57/2/DR 93 9/5/89 Queensland(2) MR DAVIES (continuing): A property which is declared by the Regulations
to form part of the cultural heritage or
natural heritage (and is accordingly identified
property under s.3(2)(a)(ii) may not infact be part of the cultural heritage or
natural heritage. In an attempt to ensure
that s.9 applied only to identified property
in a State with respect to which Commonwealth
legislative power may be exercised, the
draftsman has inserted the qualifying paragraphs
of s.6(2).
Your Honours, if I can go back to the
international obligation which is contained in
the Convention, in our respectful submission
one really must construe that international obligation
in terms of the definition of "natural heritage"
and "cultural heritage" in articles 1 and 2.
So, in our respectful submission, it is not correct to say that the obligation is to identify and
delineate however wrongly and carelessly that
is done. It is, in our respectful submission, either an obligation to identify and delineate
correctly or an obligation to do so in a way
which is capable of being reasonably considered
to be correct. So that if it is demonstrably, for example, careless and wrong then, in our
respectful submission, it is reviewable. So that
is the point, in our respectful submission, ofsaying that the obligation exists irrespective
of identification and delineation. We accept that it is a value judgment but what we say is
that it is not beyond review.
Your Honours, might I just mention, although
I am sure Your Honours appreciate this, that
our learned friend in taking Your Honours through
the nomination at considerable length sought
to show, as he said, how comprehensive it was, but this case comes to the Court on disputed
facts. Those disputed facts may show that what was done in the document was not at all comprehensive,
that it is careless and wrong so, in our respectful
submission, one really cannot, in view of the
dispute which exists as to facts, assume from
perusal of the document - one certainly should
not assume from the perusal of the document - that
it has been comprehensively dealt with.
And similarly our learned friend referred
to Dr Thorsell's opinion expressed in the transcript.
Again in the face of a factual dispute one cannot
accept, for example, that there are "rare and
threatened species" - to name possible mattersthat are in dispute, that the songbirds evolved
from this area.
ClT58/l/AC 94 9/5/89 Queensland(2)
It may be based on a mistaken view of
someone else's opinion. These are all matters which, in our respectful submission, are in dispute
and, therefore, should not be assumed.
McHUGH J: But that is the very sort of issue that makes
it very difficult for a court, is it not? I mean it is very much a matter of opinion as to
whether the songbirds started there or whether
they came from Asia, as used to be thought. Howis anyone ever going to prove that?
MR DAVIES:
It is a matter of expert opinion and the way one proves - - -
McHUGH J: That is what it is, opinion, really.
MR DAVIES:
But it is expert opinion and the way one arrives at any conclusion based on expert opinion,
Your Honour. The point we are really making, I suppose in that sense - one of the points we are making in that sense is that it is not a discretionary thing, it really is a conclusion which any court can arrive at and courts arrive
at any day as a question which is based on anopinion and in this case clearly, we would submit, expert opinion.
(Continued on page 96)
ClT58/2/AC 95 9/5/89 Queensland(2)
MR DAVIES (continuing): Your Honours, can I just mention a couple of articles which were referred to by
our learned friend during the course of his
submissions. One is article 6.2. It remains
difficult to construe, in one important sense,because though it refers to property forming
part of the:
cultural and natural heritage referred to
in paragraphs 2 and 4 of Article II -
it refers also to identification and, really,
what it must mean, in our respectful submission,
is not, having regard to the fact that it includes
identification, a reference to property whichis already listed, it must be talking about the
question of identification perhaps for the purpose
of listing property. In other words, for the purpose of preparing an inventory to go on one
or other of those lists.
Can I then say something about article 12
because that question was raised by Your Honour
Justice Deane and Your Honour asked the question
with respect to article 12 about purposes other
than those resulting from inclusion in the lists.
The consequences which result from inclusion
in the list I attempted to set out this morning and, in substance, they really are, in the case of inclusion on the first list, eligibility for
inclusion on the second list and then eligibility
for the assistance to which article 20 refers.
But absent listing, property may have outstanding
universal value within the meaning of that term
in each of articles 1 and 2 and have consequences
for other purposes; that is, for the purposes
of articles 4 and 5, for the purpose of, at least,
articles 6. 1 and 6.3, if not also 6.2 with respect
to identification, article 13.2, because
Your Honours will recall that article 20 which says that, generally speaking, requests for or the provision of international assistance is limited only to property which has already been listed, there is an exception to that, in the case of assistance for identification under article 13.2. So that is one of the purposes which article 12
has in mind and that includes, as Your Honours
will have seen from article 22(c), the provision
of specialists by other State parties in the
field of identification. And, again, article 23 also talks about provision by the World Heritage
Committee of international assistance in the
case of identification which, again, must precede
listing.
C 1T59 /1 /ND 96 9/5/89 Queensland(2)
MR DAVIES (continuing): And finally, Your Honours, may I say that we do not wish to say the
World Heritage Committee is wrong in this
sense, that we do not say that any consequences
flow from listing. We really made the point that either the obligations which are relevant
to this legislation arise because the property
is, in fact, natural or cultural heritage, or
because of the act of identification and
delineation by the State party. In either of
which case, in our respectful submission, thealternative answers which we suggested are the answers which, in our submission, are correct.
They are our submissions.
MASON CJ: Thank you, Mr Davies. The Court will consider its decision in this matter.
AT 3.39 PM THE MATTER WAS ADJOURNED SINE DIE
ClT60/1/JH 97 9/5/89 Queensland(2)
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