EXPLANATORY STATEMENT
STATUTORY RULES 1983 NO. 31
WORLD HERITAGE (WESTERN TASMANIA WILDERNESS) REGULATIONS
(Issued under the authority of the Minister of State for Home Affairs and Environment)
The purpose of the World Heritage (Western Tasmania Wilderness) Regulations is to prevent the construction of the Gordon-below-Franklin dam in order to ensure that South-West Tasmania is saved for future generations in accordance with Australia’s obligations under the “Convention for the Protection of the World Cultural and Natural Heritage”.
The regulations provide as follows:-
PREAMBLE | - | sets out the background to the Convention and Australia’s nomination of Western Tasmania Wilderness National Parks on the World Heritage List and recites the necessity for the Regulations. |
Regulation 1 | - | Formal. Provides for the citation of the Regulations. |
Regulation 2 | - | Provides that the Regulations are to be limited to areas which are being or will be affected by the construction of the dam (i.e. that area excised from the Franklin-Lower Gordon Wild Rivers National Park by the Tasmanian Government for the purpose of dam construction). The relevant areas are all within the listed area. |
Regulation 3 | - | Contains the definitions which are required for the purposes of the Regulations. Of particular importance is the definition of “person” which specifically includes the State of Tasmania. |
Regulation 4 | - | Provides that the Regulations bind the Crown in right of the Commonwealth and the State of Tasmania. The regulation ensures that the Commonwealth or the State of Tasmania is not liable for prosecution, but any servant or agent of the Commonwealth or of Tasmania will remain liable to be prosecuted for an offence. |
Regulation 5 | - | Makes it unlawful for any person, without the consent of the Minister for Home Affairs and Environment, to construct a dam or associated works in the listed area or take any other action which may adversely affect the listed area. Any person who has control of an area where such acts take place will be guilty of an offence unless that person proves that he took reasonable steps to prevent that act occurring. |
Regulation 6 | - | Ensures that the provision for penalties in regulation 5 does not preclude a court from granting an injunction, declaration, or other relief. |
Regulation 7 | - | Provides that if the Regulations involve an “acquisition of property” in the constitutional sense, the Commonwealth should provide “just terms” as assessed, in default of agreement by Tasmania, by a court of competent jurisdiction. |
Regulation 8 | - | Is an evidentiary provision to provide that a copy of the Plan referred to in regulation 2 which has been certified by an officer of the Department of Administrative Services as being a true copy of that Plan is evidence of that Plan. |
Schedule 1 | - | Sets out the text of the Convention. |
Schedule 2 | - | Is a copy of the letter from the Premier of Tasmania, requesting the Commonwealth to nominate the Western Tasmania Wilderness National Parks for inclusion in the World Heritage List. |
Schedule 3 | - | Is a statement of the World Heritage Committee in relation to the inclusion of the Western Tasmania Wilderness in the World Heritage List. |
Overview
The World Heritage (Western Tasmania Wilderness) Regulations 1983 were enacted to prevent the construction of the Gordon-below-Franklin dam, thereby preserving South-West Tasmania for future generations in line with Australia’s commitments under the "Convention for the Protection of the World Cultural and Natural Heritage". The regulations were issued under the authority of the Minister for Home Affairs and Environment and were created in response to the necessity of safeguarding the listed area from any actions that could potentially harm its World Heritage status. The policy objective underpinning these regulations is to uphold Australia’s international obligations by ensuring that the natural heritage of Western Tasmania remains unimpaired and is conserved for posterity.
These regulations outline the specific areas affected by the prohibition on dam construction, impose binding obligations on both the Commonwealth and the State of Tasmania, and provide mechanisms for enforcement and compliance, including the imposition of penalties for violations. Furthermore, the regulations address the potential acquisition of property by stipulating that "just terms" must be provided, reflecting a balance between development interests and heritage conservation. Through these measures, the regulations aim to protect the unique natural and cultural values of the Western Tasmania Wilderness, ensuring their preservation for both current and future generations.
Scope and Application
The World Heritage (Western Tasmania Wilderness) Regulations are designed to safeguard the natural heritage of South-West Tasmania by preventing the construction of the Gordon-below-Franklin dam, thus fulfilling Australia's commitments under the "Convention for the Protection of the World Cultural and Natural Heritage." These regulations apply specifically to areas affected or potentially affected by the dam construction, which are excised from the Franklin-Lower Gordon Wild Rivers National Park by the Tasmanian Government. Notably, the definition of "person" in the regulations explicitly includes the State of Tasmania, ensuring that both the Commonwealth and the State are bound by the regulations. While the Crown in right of these entities is protected from liability, any servant or agent acting on behalf of the Commonwealth or Tasmania remains subject to prosecution. The regulations prohibit the construction of the dam or any associated works that could negatively impact the listed area without the Minister's consent, holding accountable any person in control of the area where such actions occur, unless they can demonstrate reasonable preventative measures were taken. Additionally, the regulations ensure that the Commonwealth will provide just terms for any acquisition of property as required by the Constitution, should Tasmania and the Commonwealth be unable to reach an agreement.
Key Provisions
The World Heritage (Western Tasmania Wilderness) Regulations (No. 31 of 1983) are primarily concerned with the preservation of South-West Tasmania, particularly in relation to the prevention of the construction of the Gordon-below-Franklin dam. Regulation 2 (2) specifies that these Regulations apply to areas being or will be affected by the construction of the dam, within the Franklin-Lower Gordon Wild Rivers National Park. Regulation 3 (3) provides essential definitions, particularly clarifying that the term "person" includes the State of Tasmania, ensuring that the regulations bind both the Commonwealth and the State. Regulation 4 (4) ensures that while the Crown is not liable for prosecution, any servant or agent of the Commonwealth or Tasmania remains liable.
The obligations imposed by these regulations are stringent and designed to protect the heritage area. Regulation 5 (5) makes it unlawful for any person to construct a dam or associated works in the listed area or take any action that may adversely affect it, without the consent of the Minister for Home Affairs and Environment. This requirement extends to any person in control of an area where such acts take place, who must prove they took reasonable steps to prevent such acts, or face prosecution. Regulation 6 (6) ensures that the penalties specified in Regulation 5 (5) do not preclude a court from granting an injunction, declaration, or other relief, providing additional avenues for enforcement.
Violations of these regulations result in significant penalties and legal consequences. Regulation 5 (5) explicitly states that any person found in breach of its provisions is guilty of an offence. The specific penalties and consequences are not detailed within the text of the regulations, but the potential for criminal prosecution and civil remedies, such as injunctions and declarations, are clear. Regulation 7 (7) addresses the constitutional requirement for "just terms" if the regulations involve the acquisition of property, ensuring that compensation is provided by the Commonwealth if agreement with Tasmania cannot be reached. The inclusion of Schedules 1 (1), 2 (2), and 3 (3) further contextualises the regulations within the broader framework of international heritage protection and the specific circumstances of Tasmania's nomination.