State of Queensland & Anor v The Commonwealth of Australia

[1989] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B80 of 1987

B e t w e e n -

THE STATE OF QUEENSLAND and
THE ATTORNEY-GENERAL FOR THE

STATE OF QUEENSLAND

Plaintiffs

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

GRAHAM FREDERICK RICHARDSON

Second Defendant

Application for remitter and for

further and better particulars

GAUDRON J

(In Chambers)

Queensland

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 JANUARY 1989, AT 10.15 AM

(Continued from 13/1/89)

Copyright in the High Court of Australia

SlTl/1/RB	134	24/1/89
HER HONOUR:	Thank you, gentlemen,	I have received a number of

documents from the Registrar.

MR DAVI~S:  Your Honour, can I tell you that we have made some

progress since then, and could I hand up to Your Honour

a copy of our learned friend's draft special case with

some amendments which we have suggested. I can take

Your Honour to those if you like. It might be perhaps

convenient if I do take Your Honour to those amendments.

None of them are particularly major. They are:

at the end of paragraph 3, that phrase, "although

it is not agreed that the facts stated therein are

true.", has been added. Similarly, added to the end

of the second-last sentence in paragraph 4 is the same

phrase.

HER HONOUR:  What, you wish it to be added, do you?

MR DAVIES:  We do, and our learned friend accepts that. It has

been added. It is added in that draft I handed up

to Your Honour, I should think: the second-last

sentence of paragraph 4, "although it is not

agreed - - -"

HER HONOUR:  Yes, thank you. I was looking for the last sentence,

I am sorry.

MR DAVIES:	And then in paragraph 6 in the eighth line, after
the word "property", the words "belonging to the

cultural and natural heritagell have been

left out. They were in the original draft.

HER HONOUR:	Yes.
MR DAVIES:	And, again, at the end of that paragraph that

phrase, "although it is not agreed" has been added

again.	They are the amendments we suggested and
they have been accepted.	So that except for

paragraph 8 and question 2, we are agreed on the form

of the special case. Paragraph 8 and question 2 are

our learned friend bringing back in the question of

the regulations.

Can I then, perhaps, without saying too much more about that, go to the draft question because

they are tied together, of course. Paragraph 8 and

question 2 are tied to the draft question. And can

I ask Your Honour to perhaps look at our draft

question and.then our learned friend's.	Your Honour,
in respect of ours	we endeavoured to say, in much

the form that Your Honour had suggested, that we

had added "whole or of some part". On further

reflection, we are happy to delete, in that first

sentence of ours the phrase, "the whole or some

part of" and then the whole of the second sentence.

We say that because we accept, as Your Honour said

at the previous hearing, that if we were to show that:

SlTl/2/PLC	135	24/1/89
Queensland

the proscription as it stands was

inappropriate to the preservation of

part -

we -

would be showing it was inappropriate

to the preservation of the whole.

I am just quoting what Your Honour said on page 123.

HER HONOUR: Well, that was really intended as a question,

I think.

MR DAVIES:  I see. We say that it is so in this sense, that

if the regulation, for example, prohibits commercial

logging in part where, say, "selection logging'; as it

is called, would be appropriate, it is an appropriate
or not reasonably to be regarded as appropriate to

give effect to the purpose of protection and so on

because it would be excessive. So, for that reason,

we are content to have the question in that form.

Alternatively, Your Honour, if one were to

look at our learned friend's draft question, we

would be prepared to accept it with one fairly

significant amendment which we think would give

effect to what was said in the LEMONTHYME case and

that is that in the third line, the phrase, "a means

of giving" should be deleted - - -

HER HONOUR:	I am sorry, the Solicitor's draft question, is it?
MR DAVIES:	Yes, it is headed "Commonwealth's Draft Question".

Our learned friend is handing up a copy for Your Honour.

HER HONOUR:	Thank you.
MR DAVIES:	We would be prepared to accept that, as I said,

Your Honour, if, in the third line, the phrase

"a means of giving" was deleted and in lieu thereof

the phrase "appropriate and adapted to give" were

inserted. And we say that that amendment is in
accordance with what was said in LEMONTHYME.	Does
Your Honour have a copy of LEMONTHYME there?

HER HONOUR:  I have brought the TASMANIAN DAM case with me

but I am quite familiar with it, I think.

MR DAVIES:  Yes. Well, perhaps if I could just read - would

Your Honour mind looking at a marked copy?

HER HONOUR:	Thank you.
MR DAVIES:	I intend to take Your Honour through the judgments

to indicate that that amendment is an appropriate

and adapted amendment. Can I take Your Honour first

to the joint judgment of the Chief Justice and

SlTl/3/PLC	136	24/1/89
Queensland

Justice Brennan at page 289 where - they

really commence at the bottom of page 288.	They
say:

In THE COMMONWEALTH V TASMANIA the Court

held that the external affairs power enables

the Par-liament of the Commonwealth to give

effect to the Convention as an international

treat to which Australia is a party. The

majority of the Court considered that, when

Parliament exercises the external affairs
power so as to carry into effect or give effect

to such a treaty, it is for Parliament to

choose the means by which this is to be achieved,

provided at any rate that the means chosen

are capable of being reasonably considered

appropriate and adapted to the end.

So, what our learned friend has really done is put

the means of giving without adding the proviso and

we say that that is wrong. Then on page 291,

Their Honours say - I am reading from the last sentence in the paragraph in the middle of page 291.

In this respect there was a lack of reasonable proportionality between the provisions of s.9(l)(a) to (g) and the

purpose of protecting -

and, of course, we just mention that because there
cannot be a reasonable proportionality simply -

because it is a means of giving, it has to be an

appropriate or adapted means of giving.

Now, at page 292 Their Honours say - and this

really is, no doubt, again, what our learned friends

rely on. Their Honours say in the last sentence of

the first paragraph:

It is enough to say that, subject to the

question which we have reserved for later

within power, namely ensuring protection of

consideration, the provisions are a means for effectuating a desired end which is

land which may be identified as part of the
world heritage.

But that, of course, must be read in the light of

what they said before.

And then Justice Wilson, at page 303, said,

after quoting from AIRLINES OF NEW SOUTH WALES PTY

LTD V NEW SOUTH WALES:

The TASMANIAN DAM case is authority

for a somewhat expanded statement of the

test, namely, that provided a law is capable

SlTl/4/PLC	137	24/1/89
Queensland

of being reasonably considered to be
appropriate and adapted to carrying out

or giving effect to an object that

impresses it with the character of a law

with respect to external affairs, the
choice of legislative means for achieving
that object is for the Parliament and not

for the Court.

Then, Justice Deane, at page 311, commencing after

the reference to the TASMANIAN DAM case, about

eight lines from the bottom, His Honour said:

While the question of what is the

appropriate method of achieving a desired

result is a matter for the Parliament

and not for the court, the operation of a

law will not properly be seen as explained

by the designated purpose or objeft unless

it appears that that operation is capable

of being reasonably considered to be

appropriate and adapted to achieve it. Such

a law will not be capable of being so seen

unless it appears that there is "reasonable

proportionality" between that purpose or object

and the means which the law adopts to pursue

it.

And then Justice Dawson, at page 324, referring

to TASMANIAN DAM, said in the last sentence in

the first full paragraph on that page:

The approach adopted by the majority in the

TASMANIAN DAM case was that the legislation

must be reasonably capable of being seen as
appropriate and adapted to the purpose of

giving effect to the treaty, the precise

means adopted being a matter for Parliament.

And then Justice Toohey, at page 336, in the last

full paragraph on that page, taking up about the

middle of that paragraph and, in fact, in the

middle of a sentence - His Honour said:

viewed objectively it is capable of being
reasonably considered to be so and that

is enough to support the means chosen by

Parliament to give effect to the Convention - and then he refers to the passage in TASMANIAN DAM.

Finally, Your Honour, at page 342, in the last full paragraph on that page - if I can commence in

the second sentence:

The fact that Australia is a party to a

treaty (leaving to one side a treaty

which is not entered into bona fide) will

SlTl/5/PLC	138	24/1/89
Queensland

will itself suffice to engage the power to

legislate with respect to external

affairs, and will authorize the passing

of a law so long as that law is

reasonably capable of being viewed as conducive

to the purpose of the treaty if it is also

reasonably capable of being viewed as

appropriate, or adapted to, the circumstance

which engages the power.

Tl	So, those are the reasons why, in our respectful submission, our learned friend's question could only
be an appropriate question if the phrase "a means
of giving" were deleted and in lieu thereof the
words "appropriate and adapted to give" were inserted.
Your Honour, we do not mind which way the question is stated. We are happy with it being stated
in the way we have stated it which was rather
in accord, we thought, with the way Your Honour
put it to us the last time. We, on the other hand,
would be content with the way our learned friend
has stated it with that significant amendment.
On either view, Your Honour, it cannot be said, and
nothing has been said in the course of the
correspondence which has ensued and gone to Your Honour
since the last hearing,which would indicate that there
can be no evidence which the plaintiff can adduce
relevant to that question. And we have not made any
secret of the fact that, really, what we propose to
prove is that something less than total prohibition
is appropriate and adapted to the preservation of the property and that therefore total prohibition
is not reasonably capable of being so regarded because it is excessive.

The Commonwealth seem to have, during the course

of submissions before Your Honour on the previous
occasion, made an assumption which has not been borne out by anything specific that the evidence which they

put before the Court in the draft stated case is,

and is the only evidence, which any court could

consider in order to determine the answer to that

question. In our respectful submission, we cannot be

precluded from adducing evidence to show that. They

make that statement in ignorance of what we propose

for the protection of that property and, in our

respectful submission, we should be given the

opportunity of showing that what we propose,

something less than total proscription, is appropriate

and adapted and, in consequence, that what is proposed

in the regulation, total prohibition, because it is

excessive, is inappropriate.

Your Honour, I do not think that there is anything

else that, at this stage, in the event, I can usefully

add.

SlT2/l/PLC	139	24/1/89
Queensland

HER HONOUR:	Thank you, Mr Davies. Yes, Mr Solicitor?
MR GRIFFITH:	We are grateful for the opportunity we have

had, Your Honour, of resolving these differences

-- which we have agitated before Your Honour previously

as to the case, and if I can then tPll Your Honour

that the form of case handed up by my learned

friend is agreed by us with, of course,

paragraph 8 and the additional question.

Your Honour, we put our argument for the question for the regulations when we were last

before Your Honour but if I could just draw

the threads of that together again. We submit

the ultimate constitutional issue is whether

regulation 3C is sufficiently connected with the

performance of Australia's obligation under the

Convention to be properly characterized as a law

with respect to external affairs. Now, Your Honour,

there is no dispute that the relevant obligation is

that set out in Article S(b) of the Convention.

Your Honour will remember: "to ensure that effective

and active measures are taken for the protection,

conservation and presentation of the cultural and

natural heritage. And each party to this

Convention shall ~ndeavour", so the convenant

runs, "insofar as possible and is appropriate for

each country, (d) to take the appropriate legal,

scientific, technical, administrative and financial

measures necessary for identification, protection,

conservation, presentation and rehabilitation of

this heritage." Nor, Your Honour, is there any

real dispute that the appropriate test of validity

is to be found in the reasoning of the Court in

RICHARDSON. It seems, Your Honour, where we differ

is on what is the proper interpretation of the test

emerging from RICHARDSON; the differences of

expression my learned friend has taken Your Honour

briefly to this morning; and secondly, Your Honour,

extent to which findings of fact are relevant to the application of that test.

Now, Your Honour gave us an opportunity to

put a question in response to my learned friend's

formulation which would raise the issue of whether,

in the circumstance, that one can say that contrary

evidence would be precluded or further evidence

would be precluded. Now, Your Honour, we submit

that that is not the appropriate inquiry as to whether
or not a question should now be stated. Our basic
contention is that it is enough to sustain the validity
of the regulation if it is reasonably capable of

being regarded as a means of giving effect to the

obligation under Article S(d) and that is reflected,

Your Honour, in the draft question which my learned

friend handed to Your Honour as formulated by us.

And, Your Honour, in particular, we say that that is

the formulation one derives from RICHARDSON as being

the correct formulation. Now, my learned friend might

Queens and SlT2/2{PLC 140 24/1/89

say, "Well, it's a matter of semantics as to whether

one says 'means' or 'reasonably capable and adapted'

et cetera", but we say, Your Honour, putting the
relevant test at its highest, that "means" is the

appropriate formulation and consistent with other

dicta by Judges of this Court.

Now, that is the first aspect, Your Honour,

the basic expression of the test. The second aspect

is that it is our contention that all the facts

that are in any way capable of bearing on that

question are either before the Court in the case
stated with its annexures or within the realms

of judicial knowledge.

HER HONOUR: Could I interrupt you there? "Case stated", I am

assuming that we are dealing with a special case

pursuant to Order 35 rather than a case stated

under the JUDICIARY ACT. Is that a wrong assumption?

MR GRIFFITH:  I think we have been acting on the basis of a

case stated by Your Honour under the JUDICIARY ACT

but we would prefer Your Honour to state the case.

HER HONOUR:  Yes. Your doclllllents have been headed "Special

Case".

MR GRIFFITH: Yes, Your Honour.

HER HONOUR:  Can I ask why that is your - or, perhaps, is that

Mr Davies' understanding, that it is a stated

case or a special case?

MR DAVIES:  Your Honour, I did not have an understanding in

the sense that we did not really think it had any

consequences, from our point of view, one way or

the other.

HER HONOUR:  One of the suggested consequences is

that there may be greater capacity for the Court

to draw inferences under a special case than a
stated case.	I do not know that that is a decided

matter; it is a suggested difference, I understand.

MR DAVIES:  I understand that, Your Honour. We, in that event,

would opt for that which would make the Court

less able to draw inferences because - in any event,

this is not so much a question of inferences, of

course, but questions of primary fact and so that

is why we say it perhaps does not matter but we
would not want inferences drawn against us when.we

have throughout said that we want the opportunity

of adducing evidence on this question if, in the

event that a case was stated, that opportunity was

refused.

HER HONOUR:  Yes, thank you.

SlT2/3/PLC	141	24/1/89
Queensland

MR GRIFFITH:	Your Honour, the usual practice seems to be in issues of constitutional validity for the Judge to
state the case.
HER HONOUR:	Yes.
MR GRIFFITH:	And, Your Honour - I am just prodding my

recollections as to whether the JUDICIARY ACT

has a provision about inferences. In any event

I think it might but, Your Honour, whether it does or not, if one is in the issue -

in the area of constitutional facts, that must be

an area where the parties cannot, by their agreement

in the form of the case stated, shut the Court out

from doing its constitutional duties. So that

however it was dressed up one would, in our

submission, Your Honour, reach the same result,

that inferences could be drawn. We go further,

Your Honour, to say that on the hearing the Court

could engage in that process that we referred to

Your Honour by reference to BREEN V SNEDDON and

GERHARDY V BROWN on the last occasion of informing

its elf as the best as may be if there are other

matters net covered and, Your Honour, we certainly
would say that there could not be any limitation

by reason of a stated case rather than a special

case. But be that as it may, Your Honour, it

would seem appropriate for Your Honour, in the
circumstance. that we agreed on the form of word~ to state the matter and one could then

say that there might be a necessary element of

flexibility, if one finds that there are matters

where the Court requires further information, to

determine the issue of validity. And it could

not go off, Your Honour, we would submit, on the

basis as sometimes case stated do

that, "Well, it is not in the case. We can't look

at it." So, we would ask Your Honour to sign

the case.

Your Honour, we have referred then to

our contention that in issues of constitutional

fact as distinct from ordinary facts in issue in	litigation then the Court is able to have regard
to facts within, as it were, a broad judicial
knowledge or informing itself a&best it may be and we submit, Your Honour, that in the circumstances
here such reference is sufficient to enable the
validity of the regulations to be determined and
for them to be held not invalid, in other words,
valid.

Now, Your Honour, the form of the question we

postulate enables both the points of view to be

agitated, we would submit, firstly, the question of

whether or not the regulations are reasonably capable

of being regarded a_s a means for giving effect to

the obligation or, 1.£ my learned friend says, rrit' s a different

test as to whether or not they are reasonably capable

and adapted", that could be answered within the

S1T2/4/PLC	142
Queensland

formulation of the question. And, Your Honour,
we would submit also the question enables this

other contention of ours to be determined, whether

one can say that on this information the regulations

are necessarily valid and that no further alleged

constitutional fact could affect that validity.

Now, Your Honour, when one looks at this

question, we would submit, firstly, that the argument
is likely to be short. One would doubt that it

would be more than one or two hours, Your Honour.

We would submit such argument would likely to be

heard and determined before any inquiry of fact

could begin and if answered one way, Your Honour,

it would avoid the necessity for any further

inquiry. So, there is a great advantage. We have

already had a foretaste of the matters of inquiry

which might be alleged by the plaintiff as being

relevant.

If answered the other way, Your Honour,

against our contention that there is enough there

to hold that the regulations must be valid, well

none the less, there would be an essential direction

given for the determination of what is the proper

issue of inquiry. The issue of what is the proper issue would necessarily be determined by the Court in answering that question and in that circumstance,

Your Honour, any further inquiry would be directly related to the issue on which validity was to be determined. So, we would submit, Your Honour,

there is a balance of advantage all one way. And we

would add to that, Your Honour, our submission which

we have already made, that in the circumstances

that there is attack on the validity of the

proclamation as it affects the area as a whole,

it must be that the determination of that issue

touches upon matters of relevance for the determination

of the validity of the regulations. They are closely

related, Your Honour. The proclamation and the

regulations are part of a scheme to discharge the

would submit, Your Honour, that when one reflects	Convention obligation as to the whole area and we
on the matter it - for practical reasons, it would
seem that the second issue could not proceed very
far even if it were remitted now but,we would
submit, for legal reasons, Your Honour, it should
not proceed because it needs necessary direction
which would be derived from answering the first
question.

HER HONOUR:	Does it not, in a sense, assume the validity of the proclamation in this sense that if the proclamation
is invalid that is the end of the matter I should have
thought?
MR GRIFFITH:	Yes, of course, Ycur Honour, but the proclamation

is valid because it is relevAnt ~o discharging the

SlT2/5/PLC	143
Queensland

Convention obligation as to the whole area. Now,

my learned friend has indicated to Your Honour

that he will be submitting that one should look

at parts and on identifying parts where one says

the particular regulation is inappropriate, we

would submit, Your Honour, that that necessarily

involves issues as to the whole which will be

subsumed into the issue of validity of the proclamation.

So that, in effect, although my learned friend will

have to concede the validity of the proclamation

for the purpose of arguing the question of regulations,

it is only in a formal sense, not in a practical

sense, determinative of the issue of validity

of the proclamation, Your Honour, carries with

it, we would submit, this whole issue of whether

one has regard to the area in globo in considering

the reasonableness and adaptedness of the regulations

or one divides it into these grids of 200 or 300,

whatever they are, square kilometres of 80

of them, and goes over it square kilometre by

square kilometre saying, "Well, 5 per cent of it

is open bushland and not forest therefore regulation 3C

is invalid". Well, our contention, of course, will

be, Your Honour, that that is not the relevant

inquiry at all, one looks at the whole and considers

whether, as a whole, regulation 3C is reasonably

adapted.

T2 Your Honour, I do not think there is any need

for me to rehearse that again. We said it last time

that that is something that we see that adds to

the appropriateness of the inquiry. Your Honour,

the fourth aspect we refer to is that although for

the moment -perhaps if we could regard the particulars

on hold - when one looks at the issues which have been

thrown up by the plaintiffs as relevant on the

particulars, we would submit, Your Honour, if there

is a choice of what is the appropriate course,
should we obtain an answer on this question from the

Full Court now or let matters run on so far as

validity of the regulation is concerned, one does

see	what is almost a terrifying inquiry opened up
by the reach of the request for particulars as they

now are and, we would submit, Your Honour, that

if there is an alternative which would seem

reasonably and arguably to give the short answer -

and we would submit, Your Honour, on any view, our

submission on this is reasonably arguable - in our

submission,then takes the next step, that being the

case, we would submit that it now is reasonable

and appropriate for the Full Court to determine that

and that is our application.

HER HONOUR:  B~t your proposition is still that Mr Davies is

shut out from calling any evidence?

MR GRIFFITH:  We would say no evidence that he could call or

would wish to call can alter the result. Now, as

S1T3/l/PLC	144	24/1/89
Queensland

to whether, Your Honour, that means that the

evidence would be inadmissible, not receivable,

we say is - well, you can receive it all, it does

__ not make any difference. Now, it would follow,

I suppose, a matter of pure evideritiary theory,

that if that is the case the evidence should be

characterized as not relevant and not received.

But we appreciate there is an issue of semantics

there but it does remain our position, Your Honour,

that whatever my learned friend wishes to contend

as the fact, if that is accepted as the fact,

none the less we say that the issue of validity

is foreclosed in our favour on the basis of the

material which is in the case stated. So, we

remain very much on the high ground on that,

Your Honour. We say there is nothing that my

learned friend can seek to contend or to prove

which can alter that result, that is our contention.

And we desire the Full Court to determine whether

we are right or wrong on that.	And as mentioned,
Your Honour, we see a further advantage:	even if

we be wrong, one would lay to rest these differences

in expression that one can glean from the

TASMANIAN DAM's case and the LEMONTHYME case as

to what is the relevant inquiry.

Can we turn now to the proposed questions,

Your Honour? On reflection, it did seem to us that

the Queensland draft was not appropriate to turn

up the RICHARDSON inquiry, however formulated.	And
what we say, Your Honour, is that on any view of

RICHARDSON, the determination of the appropriateness

or the inappropriateness of the regulations is a

matter for Parliament and not for the Court. The

Court must decide whether the method chosen by being regarded as appropriate. And Your Honour

said this in RICHARDSON at page 344 and it was

also stated, Your Honour, by Justice Deane at page 312.

I do not think my learned friend took Your Honour to

that part of Justice Deane's judgment. Perhaps if

I could read it briefly at page 312, Your Honour.

About the middle of the page, His Honour said:

In my view, it is not necessary for this

Court to be persuaded that the particular

provisions are, in fact, appropriate and

adapted to the designated purpose or object.
That is a matter for the Parliament.

Obviously, the relevant requirement will be

satisfied if the Court is so persuaded.

As I have indicated however, it will, in my

view, suffice if it appears to the Court

that the relevant provisions are capable of

being reasonably considered to be so

appropriate and adapted.

And we would submit Your Honour said much the same

thing at page 344.

SlT3/2/PLC	145	24/1/89
Queensland

Your Honour, our submission is that the question formulated as it is in the plaintiffs'

proposal is really to formulate the other

question referred to by Justice Deane, that is,

whether the Court is so persuaded rather than the

issue which is the correct issue.

And, of course, here, Your Honour, we are not concerned simply with the prohibition

contained in regulation 3C but the operation of

the regulation in the context of section 9(1) of

the Act. Now, obviously, Your Honour, one could

say the prohibition is inappropriate in the

5 per cent, or whatever it is, of the area not

covered by trees but is capable of being regarded
as appropriate if the area is taken as a whole, in

our submission. So, we submit the obligation

attaches to the property, not to parts of property,
but I think my learned friend has really covered,
to some extent, that objection by accepting the

deletion of the reference to parts of the property.

The other point we make, Your Honour, is the

obligation under Article 5(d) as to take measures

for the protection, conservation, presentation

and rehabilitation of the property and we would

submit it is sufficient if the regulation does

any one or more of those things. So that,

Your Honour, when one asks the negative, we would

submit, one should use the disjunctive "or" rather

than the conjunctive "and" and that is what we have

done in our draft question. I do not think my

learned friend has objection to that because he seems

to have accepted that formulation.

Now, having made those points about it,

Your Honour, the simplest way we would propose

to deal with those points of objection through

Queensland's draft is to accept my learned friend's

concession that subject to one matter he would

accept the negative formulation.	So that
we really avoid the necessity to answer those	arguments against if one goes to our draft and
then we crystallize the issue between us,
Your Honour, as to what is the correct articulation
of RICHARDSON. Now, Your Honour, we submit that means of giving effect is to express what we woulc put
the strongest test. Now, it may well be, Your Honour,
that a definitive judgment of this Court would say
that it means exactly the same as "appropriate and
adapted". It is just that this Court has not said
that yet, Your Honour, and one can pick up the
differences in formulation. Of course, Your Honour,
if a question of this form - and we submit, in effect,
our question 2 covers it - should go to the Full because we can rely upon this Court to give an

SlT3/3/PLC	146	24/1/89
Queensland

authoritative direction about it but in the

case of remitter, Your Honour, the remittee Judge

does not have the advantage of the capacity to

authoritatively determine any differences and

the difference may be significant so that there

may be a continuing argument between us as to

what is the correct inquiry and whether there

are differences in evidence relevant to one

formulation rather than another where

there is a difference in findings of fact on

that evidence and one can see obviously, Your Honour,

that there could be argument about that. And

the fact that there could, Your Honour, we would

use as a sort of confirming yardstick, if one can

have that, of indicating it would be very useful

if it becomes a matter of discretion to have this

direction given now on our question 2 rather than

his. So it is a question of all roads leading

to the Full Court, Your Honour, we would prefer

directly but that apart, if it is to become a

question of what question is to be remitted,

really, at this stage, we would submit it is a matter

for Your Honour; that if it is remitted in the

form as'regarded as appropriate and adapted to
give" that, in a general way, would give a basis
of inquiry and finding of fact but it would still

leave open issues of difference as to,

"Well, is that the correct finding?" If it were

to be held that the appropriate test is a means of

giving effect and that that is different from

"appropriate and adapted", well, it may be that

Judges findings of fact, when they got back to the

Full Court, would be inappropriate to support an

argument as to validity. Obviously, Your Honour,
our preference is to get it right as it is

remitted down so there will not be unnecessary

remitter again on the issue of the facts.

I think that is all we would wish to say about that,
Your Honour, that if it is to be a choice

we would prefer our draft and, Your Honour, we would

prefer the expression to be "a means of giving"

rather than "appropriate and adapted to give" but

at the end of the day that is a matter for Your Honour.

We would regard it as implicit, Your Honour,

in my learned friend's postulation of one or other

draft questions that there would be consequent

necessary repleading of the statement of claim, to

delete the paragraphs 17, 18, in effect, and to

plead a new paragraph 19 in terms of the question,

as it were.

MR DAVIES:  I think we accepted last time,that if that question

went we would accept that as being the test.

HER HONOUR:  Yes. Well, do you accept that you should have

paragraphs 17 and 18 deleted from your further

amended statement of claim?

SlT3/4/PLC	147	24/1/89
Queensland

MR DAVIES: Yes. Well, in this sense, Your Honour, that -

yes, we accept that that is the only question

that should go to the Judge and the Court's

determination of that question determines the

question of validity of the regulation, yes.

MR GRIFFITH:  I take my friend to mean, Your Honour, that he

is abandoning, in effect, paragraphs 17 and 18

as allegations in the case on validity of regulations

so that we would not hear about it again on another

occasion.

HER HONOUR: That is as I understand it.

MR GRIFFITH:  Yes. As to whether he wants to alter

paragraph 19 to reflect the final question or

whether it covers it reasonably enough, I suppose,

is a matter for my friend's pleading but it might

be useful, so far as conformity is concerned, if

that question goes,for the pleading to reflect the
question because otherwise the question is not

tied to the pleading.

HER HONOUR:  I do not know that one can order the parties to

amend their pleadings. One can give leave.

MR GRIFFITH: Yes. Well, it could have a consequential

affect if we do not sort it out, Your Honour, in

that - - -

HER HONOUR:  It is sufficiently sorted out, is it not, by

the understanding that this is the only question

and that,accordingly, paragraph 19 is the only

paragraph upon which reliance is made for the

purpose of validity.

MR GRIFFITH:  Yes. Your Honour, we would still prefer to

have 19 pleaded to reflect the ultimate question
because it may be relevant as we may be ordered to

give particulars on the negative pregnant of our

denial.

HER HONOUR: Yes, I see that. Is there any difficulty about

that, Mr Davies?

MR DAVIES:	No, Your Honour.
HER HONOUR:	Thank you.

MR GRIFFITH:  Thank you, Your Honour. Your Honour, we would

regard it as - if there were to be remitter,

firstly, it would be necessary to determine the

court and we have made our submissions about that

last time. I think my learned friend did. Secondly,

Your Honour, we would submit that in the circumstance,
Your Honour should vacate the order made for

particulars on 11 November and leave the whole issue of

particulars to be agitated in the remittee court.

SlT3/5/PLC	148	24/1/89
Queensland

One would suppose there would be a new request

on the amended pleading related to the issue of

validity of the regulations and that would be

responded to but, Your Honour, we feel there is

no need to rehearse again our arguments as to the

inappropriateness of the order.

I should indicate, Your Honour, that there

has been discussions between counsel and we agreed that

it is not appropriate today to argue further this

issue of particulars but if there is to be

remitter, Your Honour, that must be determined.

HER HONOUR:	I was going to say, there can be no question of remitter as far as I am concerned whilst the
question of particulars remains in this Court.
That would be wholly inappropriate, in my view, and
unfair to the remittee court if that were to happen.

MR GRIFFITH:  Yes. We would concur with that, Your Honour.

We would say it is unfair to us, of course. We

prefer to stay here so that issue could be left

on our first submission but if the matter is to

be remitted, Your Honour, we would submit Your Honour

should vacate the order. My friend has got the

advantage of the two or three kilograms of

particulars they have already got and can use

that as a basis - - -

HER HONOUR: It may well be a disadvantage.

MR GRIFFITH:  They can use that as a vehicle for a further

and relevant request, Your Honour, which could be

considered by the remittee court.

Your Honour, just dealing with remitter as a

possibility: if there is to be an order for

remitter, Your Honour, it would be necessary to

determine whether it was for the purpose of

finding the facts or determining the issue, so

that is a matter which would have to be covered
by Your Honour's order.	Our preference would be,

Your Honour, merely to find the facts.

HER HONOUR: 

On any view, whichever way you look at the questions, it is a question of mixed fact and law

and you cannot really segregate out the facts, can
you, Mr Solicitor?

MR GRIFFITH: 

At the end you will, Your Honour, because one can

see it coming back to the Court on the basis of on
the facts as found it still must be said one way or

the other, depending on who had the finding, either

that it could not reasonably be regarded as capable
of being adapted or it must be so regarded so that

the issue of law would still be there and it is just a question of whether, you know, one has the finding

of fact that represents, as it were, a trial result

on the issues of fact and law or whether one just

Queens and S1T3/6{PLC 149 MR GRIFFITH, QC 24/1/89

has the finding of fact, as happens or should
happen in section 92 remitters that does not

seem to happen because they never come back but

that is the purpose of the remitter, to find the

facts.

(Continued on page 151)

S1T3/7/PLC	150	24/1/89
Queensland

MR GRIFFITH (continuing):  So that is another issue,

Your Honour.	We would prefer merely for the facts
to be found.	And the other issue is we woul<l

submit that there should in any event be, if there

were remitter, a liberty to apply to this Court.

The J:,fABO case showed how appropriate it is,

Your Honour, for there to be a capacity for this

Court to make further directions should the matter as

remitted not take the expected course or be shown

not to be capable of taking the expected course.

One supposes there would be an ability to make

application anyway, Your Honour, but it would seem

that in these sorts of consti.tutional cases, the

usual order is to reserve liberty to apply and we

would submit it would be appropriate here. If

Your Honour pleases.

HER HONOUR:	Thank you, Mr Solicitor.
MR DAVIES:	Your Honour, I have only three short points.

The first is on a question of remitter and can we

simply adopt what Your Honour said during the course

of my learned friend's argument that they really

are two discrete questions and the second assumes

the validity of the proclamation.

With respect to the case, we are probably

repeating what we said earlier on but there is just

absolutely no point, in our respectful submission,

in asking the question 2 in the case because the
question 2 really has been answered by the judgments

of this Court in the LEMONTHYME case, that the

validity of a regulation such as regulation 3C

is dependent upon an inquiry of fact and the

inquiry of fact is that which is stated in the

question and it does not really matter much whether

you put it in the form of the Coilllil.onwealth's draft

or ours, the question which has been posed.

Finally, Your Honour, with respect to

particulars, we accept what Your Honour says with

respect to particulars so far as they are relevant
to this question, that is the question of the

regulation, going to the trial judge, we accept that

that should be a matter for him. Of course, the

particulars were also relevant to the first question.

We accept that in that respect that really the question should really just be left really until

after the Full Court has determined the stated case.

So certainly so far as particulars go to that

second question, we accept that Your Honour should

make whatever order is appropriate to ensure that

particulars on that question be a matter for the

judge to whom the matter is remitted. Finally, our

learned friend said -whether it should be just the facts or

SlT4/l/RB	151	24/1/89
Queensland

that question, in our respectful submission it

becomes exceedingly difficult when you try to

separate facts out from a question such as this. It

is substantially a question of fact but, in our

respectful submission, the proper course is to remit

that question in the form in which it stands to the

Court.

We have no other submissions, Your Honour.

HER HONOUR:	Yes, thank you.
MR GRIFFITH:	Your Honour, could I say something about the

form of whether it is a special case, a question or

a stated case?

HER HONOUR:  Yes, thank you.

MR GRIFFITH:  Your Honour, I was in error. I had in mind the

JUDICIARY ACT had a reference to inferences but that

is - - -

HER HONOUR:  No, it is section 18 and it is silent, I think,

is it not?

MR GRIFFITH:  Yes. It is Order 35 rule 1(4) which enables

inferences to be drawn in special cases stated

under Order 35 but, Your Honour, we would submit

that it is appropriate for Your Honour to reserve

the questions under section 18 and we have made our

point about the constitutional facts as to how we

say - - -

HER HONOUR:  I think you are ad idem that a stated case is

preferable to an Order 35 special case, are you not?

MR GRIFFITH:  Yes. It is a question of whether one describes

it as a stated case or it is a reservation of a

question, under section 18. It says:

Any Justice of the High Court sitting alone,

whether in Court or in Chambers, may state

any case or reserve any question for the

consideration of a Full Court, or may

direct any case or question to be argued

before a Full Court, and a Full Court shall

thereupon have power to hear and determine

the case or question.

It might be a matter of semantics as to whether the

heading is a question reserved or case stated or

both, but anyway pursuant to section 18, Your Honour.

HER HONOUR: Yes, thank you. Is that all, gentlemen?

S1T4/2/RB	152	24/1/89
Queensland

There are in fact three issues which are

raised by the proceedings presently before me.	It
is convenient to deal firstly with the question

-- which is sought to be raised by question 2 in the

draft special case which has been made available to

me and that in essence is a question whether or not

any inquiry of fact is irrelevant, otiose, or
superfluous to the question of the validity of

regulation 3C of the World Heritage Regulations.

In COMMONWEALTH V TASMANIA, the TASMANIAN DAM

case, (1983) 158 CLR l,Justice Brennan at page 236

noted:

that protection and conservation are functions
that can only be performed with respect to an

individual property; those functions have to be

performed according to the condition of the
property at the time and with reference to any

threat that may then be posed by specific dangers. That observation seems to me necessarily to indicate

that it is relevant in any case such as the present

to determine at least the condition of the property

and the specific dangers and those matters in turn,

in my view, necessitate that any person challenging

the validity of the operation of a regulation such

as regulation 3C be givan an opportunity to call
evidence in relation thereto. Accordingly, I would

propose that question 2 in the special case as

handed to me and paragraph 8 be deleted therefrom and

that a case be stated for the Full Court pursuant to

section 18 of the JUDICIARY ACT substantially in terms with the special case as handed to me with

those deletions. There will be some minor formal

amendments but in substance the case will conform

to that document.

The second question having been deleted therefrom,

it seems to me, and being as I have said dependent

upon an inquiry as to fact, is in my view appropriate

for remitter. That having been decided, the only
issue which arises between the parties as to the form

of the question is really whether the question should

be framed by reference to the Connnonwealth draft

question which is in these terms:

Whether Regulation 3C, in prescribing acts for

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

a means of giving effect to the object of the

protection, conservation, presentation or

rehabilitation of the property.

and on the other hand the Queensland suggestion

which is:

SlT4/3/RB	153	24/1/89
Queensland

Whether Regulation 3C, in prescribing acts

for the purpose of section 9(1) of the Act,

is not reasonably capable of being regarded

as appropriate and adapted to give effect to

the object of the protection, conservation,

presentation or rehabilitation of the property.

It seems to me that the TASMANIAN DAM case and

RICHARDSON V FORESTRY COMMISSION are both authority

for the proposition that the criterion of validity

of a regulation such as regulation 3C is that it is

reasonably capable of being regarded as appropriate

and adapted to the object or purpose which attaches

to the regulation-making power and perhaps also to

the constitutional head of power.

In those circumstances, it would be my

intention to remit a question in terms:

Whether Regulation 3C, in prescribing acts

for the purpose of section 9(1) of the Act, is not reasonably capable of being regarded as appropriate and adapted to give effect to

the object of the protection, conservation,

presentation or rehabilitation of the property.

The question of the remittee court is one which

has not been substantially debated although the

parties have indicated their preferences: Queensland

asserting its preference for the Supreme Court of

Queensland and the Commonwealth for the Federal Court.

On the last occasion some mention was made about the

immediate availability of the resources of either

court but no evidence was given in relation thereto.

It seems to me that that is a matter that I should therefore discount entirely. It does, however, seem to me relevant that the Commonwealth may wish to take

evidence in places other than in Queensland or at

least, as it put it, avail itself of data on a base

located otherwise than in Queensland and in this

respect it does seem to me that the Federal Court

offers at least the opportunity for taking of evidence

in places convenient to the parties, as well as in

Queensland, and I would propose that the matter be

remitted to the Federal Court.

That leaves outstanding the question of particulars.

I have already indicated that I would regard it as

inappropriate to remit with the question of particulars
outstanding or remaining for determination in this

Court. Accordingly, I would propose that it be ordered that the order made by me on a previous

occasion be vacated and that the question of

particulars be determined by application to the

Federal Court. Similarly, if particulars are required in relation to the question of the validity of the

proclamation, that question can be raised on further

SlT4/4/RB	154	24/1/89
Queensland

motion to this Court after the determination of the

question in the stated case.

Any specific directions other than liberty to apply required? Oh, yes, there is one. Mr Davies,

I have rather assumed in all that that you will put

your pleadings in order - when I say in order - that
your pleadings will be amended to reflect the issue

that is embodied in the question to be remitted?

MR DAVIES:  Yes, I will.

HER HONOUR: It is sufficient if I grant leave to the parties

to amend their pleadings. The amendment to the

pleading - to the statement of claim to be made

within 10 days because I do not propose that the

papers should be forwarded until that has happened.

MR DAVIES:  Yes, that will be done irrrrnediately, Your Honour.

HER HONOUR:  Yes. Any time limit for yours?

MR GRIFFITH:	Your Honour, we will be able to replead our defence within five days, so we could do that before
the matter off.

HER HONOUR:  Yes, I propose that that should all be done before the matter goes off. So it is sufficient if I say

that subject to the pleadings being put in order

within 21 days from today, the matter will be

remitted to the Federal Court.

MR GRIFFITH: If Your Honour pleases.

HER HONOUR: Is that sufficient?

MR DAVIES:  Yes, Your Honour.

HER HONOUR: There will be liberty to apply generally.

MR GRIFFITH: Just one question about the remittee court,

Your Honour. I am not sure whether it is usual to

direct a particular registry of the Federal Court.

HER HONOUR:	I do not know that it is and I am not wholly convinced that it is a good idea in a case such as
the present. It can, at this stage, go to their principal registry and any order as to the relevant
registry is a matter to be taken into - can be made
by that court having regard to the convenience of the judge who receives the matter, I think. It may
very much be a matter of convenience to the judge, I
think, or do you wish to say something further?
MR DAVIES:	No, Your Honour.
MR GRIFFITH:	No, Your Honour.

S1T4/5/RB	155	24/1/89
Queensland

T4 HER HONOUR: Costs? What are we to do about costs?

MR GRIEFITH: Obviously, Your Honour, they must be reserved

-- because the case is just proceeding on the pleadings.

MR DAVIES:  I think that is so, Your Honour.

HER HONOUR:  Yes. Costs will be reserved. A certificate

will issue for counsel.	The order will be taken out
in the registry.	Do you wish any further - I do not

think it is necessary to make any order about the

pleadings being treated as pleadings in the case in

view of the fact that they are still not in a

complete state. Is that - - -

MR DAVIES: Well, as far as we are concerned we are content

with the orders Your Honour has made. Our pleading

will be in a completed state within a matter of a

couple of days, Your Honour.

MR GRIFFITH:  The only other certificate I would like, Your Honour,

is one that I can hand to someone for my holidays

as a credit - I am sure my learned friend is the same -

but no, Your Honour, we do not require any other

order.

HER HONOUR:  Mr Registrar, do you require an order about the

papers?

THE REGISTRAR:  I do not think so, Your Honour.

HER HONOUR:  Very well. If any other order is required, the

parties have liberty to apply. Court will now adjourn.

AT 11.17 AM THE MATTER WAS ADJOURNED SINE DIE

SlTS/1/RB	156	24/1/89
Queensland