Commonwealth v Tasmania [1983] HCA 21 | Case summary

Commonwealth v Tasmania [1983] HCA 21 | Case summary | Zoe

The construction and operation of the dam and hydro-electric works are of importance to the Tasmanian economy and the H.E.C. proposal found favour with the Parliament and government of the State. To give effect to the proposal, legislative and executive action was taken. To permit the construction of the new power development upon the chosen site it was deemed necessary to vest certain parcels of land in the H.E.C., which is a corporation created by s. 4 of the Hydro-Electric Commission Act 1944 Tas. ("the H.E.C. Act"). Some of the required land was part of the Wild Rivers Park and it was necessary to excise two parcels of land from that park under s. 16(1) of the Tasmanian National Parks Act and thereby terminate their status as part of a conservation area and State reserve (s. 15(4)). The two parcels of land contained in all 14,125 hectares or thereabouts. The excision of these parcels ("the H.E.C. land") took effect on 2 September 1982. A third parcel containing 780 hectares or thereabouts ("the future H.E.C. land") - a parcel which includes the caves - is to be excised with effect on 1 July 1990. In the meantime it remains part of the Wild Rivers Park. By a proclamation made in pursuance of s. 35 of the H.E.C. Act, the H.E.C. land was vested in the H.E.C. for the purposes of the H.E.C. Act on 16 September 1982 and the future H.E.C. land is to vest in the H.E.C. for the purposes of the H.E.C. Act on 2 July 1990. Certain other tracts of land were also vested in the H.E.C. for the purposes of the H.E.C. Act: a parcel comprising 14,200 hectares or thereabouts was excised from the Southwest Conservation Area outside the Parks and vested in the H.E.C. and an adjoining parcel comprising 3,570 hectares or thereabouts of Crown land situated outside the Southwest Conservation Area was so vested. Neither of these two parcels of land is of present relevance. The land vested in the H.E.C. is available for use in and in connexion with the construction of the proposed dam. Section 44 of the H.E.C. Act empowers the H.E.C. to "construct and use any works for the purpose of generating, transmitting, or distributing electrical energy, upon or in respect of any land vested in the Commission, or over which it has acquired any right or authority for that purpose", but the H.E.C. requires further authorization from the Tasmanian Parliament before it undertakes or constructs a new power development (s. 16(1)). The Tasmanian Parliament gave its authority for the construction of the proposed new power development by enacting the Gordon River Hydro-Electric Power Development Act 1982 Tas. which was assented to on 28 June 1982 and came into operation on 12 July 1982. The proposed development is known as the Gordon below Franklin Scheme.

In 1850, when s. 14 of the Australian Constitutions Act (No. 2) (13 & 14 Vict. c. 59) Imp. granted power to the Governor and Legislative Council of Van Diemen's Land to make laws for the peace, welfare and good government of that Colony, the Imperial Parliament excepted from the grant any power to interfere with the sale or other appropriation of the lands belonging to the Crown within the Colony or with the proceeds arising therefrom. That exception put the Governor in a position of comparative independence from the Legislative Council: see A.C.V. Melbourne, Early Constitutional Development in Australia (R. B. Joyce ed., 1963), p. 273. The refusal by Imperial authorities to grant power to control waste lands and their proceeds to the Governor and the Legislative Council of New South Wales evoked a remonstrance from the Legislative Council that "the land revenue, which "derived as it [was] mainly, from the value imparted by the labour and capital of the people of [the] colony, [was] as much their property as the ordinary revenue", [and] should be appropriated by the Council": W.G. McMinn, A Constitutional History of Australia (1979), p. 48. However, power over waste lands and their proceeds was not granted until responsible government was granted, a constitutional development that would have been impossible in the mid-nineteenth century if the colonial legislatures had not secured control of the revenues derived from sale or other appropriation of waste lands. Responsible government had not been granted to Van Diemen's Land with the grant of legislative powers to the Governor and the Legislative Council. Responsible government followed upon the creation of a bicameral legislature pursuant to "an Act to establish a Parliament in Van Diemen's Land and to grant a Civil List to Her Majesty" (18 Vict. No. 17). The Bill for that Act had been passed by the Governor and Legislative Council in 1854 and had been reserved for the Royal Assent pursuant to s. 32 of the Australian Constitutions Act (No. 2). That Act did not provide that the powers of the Parliament of Van Diemen's Land under the new Constitution should extend beyond those granted to the Governor and Legislative Council in 1850. But then there was a change in Imperial policy as to the control of the waste lands and their proceeds, and the Waste Lands (Australia) Acts Repeal Act (18 & 19 Vict. c. 56) Imp. was passed in 1855 to repeal the 1842 Act. Section 5 of the 1855 Act empowered the new bicameral Legislature of Van Diemen's Land by Act "to regulate the Sale and other Disposal of the Waste Lands of the Crown" in the Colony "and the Disposal of the Proceeds arising therefrom for the Public Service" of the Colony.

It may be said in the present case that the Wilderness Regulations apply only to the H.E.C. land and that the Act does not single out the State's waste lands but applies to any land which falls within the definition of identified property in s. 3(2) of the Act. No doubt those considerations suggest that the Commonwealth measures are not discriminatory against the State and therefore do not exhibit one of the indicia of a law "aimed at the restriction or control of a State in the exercise of its executive authority". But absence of discrimination against the State is not necessarily conclusive of the valid operation of a law in its application to the State or its agencies: cf. Bank of N.S.W. v. The Commonwealth [20] . The consideration which, in my view, determines whether the Commonwealth measures invalidly trespass upon the exercise of the executive authority of the State is to be found in the actual operation of those measures upon the functioning of the executive government of the State. There would be some substance in Tasmania's argument if the Commonwealth measures, assuming them to be otherwise valid, were applied to the buildings that house the principal organs of a State. But it is impossible to suppose that the functioning - as distinct from the powers - of any organ of Tasmanian government is affected by a restriction on the use of land which is not devoted to the functioning of an organ of government. This is not a case of a Commonwealth law purporting to restrict the use by the central departments of government or by Parliament or by the Supreme Court of the buildings appointed for their use in performing their respective functions. The Commonwealth measures impose restrictions on the use of part of the Parks and expose the whole of the Parks to the possibility of restriction if the conditions specified in the Act were satisfied and the required declarations were made by proclamation under s. 6, s. 7 or s. 8. To affect that land in that way is not to impair the functioning of the executive government of the State, though the measures limit the areas within which the executive government may make its will effective. The Commonwealth measures diminish the powers of the executive government but they do not impede the processes by which its powers are exercised. There is no foundation for attributing to the control of the mass of waste lands of a State a special immunity from valid Commonwealth law. Waste lands of a State are to be administered by the executive government of the State according to the law which is binding upon it, including the laws of the Commonwealth that bind the State. A restriction upon the doing of specified acts in the exercise of an executive power to use and to control the use of waste lands is no invalid intrusion upon the exercise of that power.

The starting point is the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") which was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) meeting in Paris on 16 November 1972. Australia deposited its instrument of ratification of the Convention on 22 August 1974. The Convention entered into force on 17 December 1975. Seventy-four countries have become parties to the Convention. The relevant provisions are set out by the Chief Justice in his judgment and I need not repeat them, except to note that the monuments, groups of buildings and sites which are defined by Art. 1 to constitute "cultural heritage" and the natural features, formations, sites and areas which are defined by Art. 2 to constitute "natural heritage" are of "outstanding universal value" from one or more of the points of view specified in the definitions. The inclusion of a property in the World Heritage List pursuant to Art. 11 identifies it as "forming part of the cultural heritage and natural heritage" and as having "outstanding universal value" in the eyes of the World Heritage Committee. The effect of the Convention upon a State Party on whose territory a property forming part of the cultural heritage or natural heritage is situated is a matter of contention. The Commonwealth contends that the Convention imposes an obligation to ensure the "identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage" (Art. 4), and that it confers a benefit upon that Party in that the property becomes eligible under Pt V of the Convention for the grant of international assistance which may include assistance in artistic, scientific and technical matters. Tasmania, on the other hand, contends that the Convention imposes no real obligation and confers no real benefit; the Convention is said to be no more than a statement of aspiration or political accord.

The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations. With these developments the position of the Commonwealth, the federal government, has waxed; and that of the States has waned. In law that is a result of the paramount position of the Commonwealth Parliament in matters of concurrent power. And this legal supremacy has been reinforced in fact by financial dominance. That the Commonwealth would, as time went on, enter progressively, directly or indirectly, into fields that had formerly been occupied by the States, was from an early date seen as likely to occur. This was greatly aided after the decision in the Engineers' Case [40] , which diverted the flow of constitutional law into new channels. I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers' Case as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs. In the years since the Second World War, Australia has been involved in expanding fields of international co-operation, and those fields of co-operation are of enhanced importance to Australians as they are to the people of other countries. If the movements of history are relevant to the striking of a federal balance, the development of Australia's international relations and the participation of the Australian people in the world outside our shores must assuredly be weighed. But it is not the function of this Court to strike some balance between the Commonwealth and the States: that would be to confuse the political rhetoric of States' rights with the constitutional question of Commonwealth legislative powers the measure of which at any time is not referable to the powers previously exercised by the States. In the present case, the scope of the external affairs power invoked by the Commonwealth cannot depend upon the undoubted power of a State to legislate for and to control the use of its waste lands; the scope of the external affairs power here depends upon the existence and content of an obligation owed by Australia to other countries by virtue of the operation of international law upon the provisions of the Convention. 1. (1971) 122 C.L.R., at pp. 395-396. 2. (1920) 28 C.L.R. 129.

We were invited to refer to travaux preparatoires of the Convention in order to perceive the attenuation of obligatory language from the first draft of the Convention to its final text. In my view that invitation should be rejected. It accords with the Vienna Convention and with the consistent practice of the International Court of Justice and, earlier, of the Permanent Court of International Justice, generally to decline reference to travaux preparatoires, for "there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself": Conditions of Admission of a State to Membership in the United Nations [42] . In any event, assuming that the obligatory language was attenuated between the drafts and the final text of the Convention, it does not follow that the text adopted excludes an obligation. At the end of the day, the interpretation of the text itself must determine the content of the obligation it imposes. I turn then to the text of the Convention; I do not have recourse to the travaux to arrive at the meaning of the Convention except in relation to one word, "presentation", the meaning of which remains obscure after following the procedure prescribed by Art. 31 of the Vienna Convention. Article 4 of the Convention states that each State Party recognizes that there is a duty belonging primarily to a State on whose territory property being cultural or natural heritage is situated to ensure its "identification, protection, conservation, presentation and transmission to future generations". The duty of "presentation" is not easily understood. The travaux show that the term was inserted in the English text of the Convention in place of the terms "development" or "active development" after objection to the use of the latter term was taken by the United Kingdom in a draft of the proposed Convention with respect to the cultural heritage. The corresponding French text remained unaltered, the Convention following the draft in use of the term "mise en valeur". That term, the drafting secretariat observed, "when applied to monuments, groups of buildings and sites, is taken to mean conserving and arranging them to bring out their potentialities to best advantage". It seems that "presentation" is the term adopted in the final text to convey that meaning, not only with respect to the cultural heritage but also with respect to the natural heritage. The duty of "presentation" may thus require the provision of lighting or access or other amenities so that the outstanding universal value of the property can be perceived; nevertheless, conservation of the property is an element of its presentation and is not to be sacrificed by presentation. The duty thus requires the protection and conservation of the features which give the property its outstanding universal value. It is the "object and purpose" of the Convention to ensure that those features are protected and conserved.

Tasmania argued for an analogy between treaty obligations and obligations arising from contracts in municipal law. Though the analogy is imperfect, the cases cited are instructive. Placer Development Ltd. v. The Commonwealth [44] was relied on as an instance of an illusory contract where the content of the obligation is dependent entirely upon the discretion of the obligor. The manifest difficulty in finding that what the parties express in contractual form is a mere illusion is reflected in the division of opinion in that case. However, the relevant rule upon which Tasmania would rely is expressed in that case by Kitto J. [45] : "wherever words which by themselves constitute a promise are accompanied by words showing that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought at all." The obligation under Art. 4 of the Convention leaves no discretion in a Party as to whether it will abstain from taking steps in discharge of the "duty" referred to in that article. Each Party is bound to "do all it can to the utmost of its own resources" and the question whether it is unable to take a particular step within the limits of its resources is a justiciable question. No doubt the allocation of resources is a matter for each Party to decide and the allocation of resources for the discharge of the obligation may thus be said to be discretionary, but the discretion is not at large. It must be exercised "in good faith", as Art. 26 of the Vienna Convention requires. If a Party sought exemption from the obligation on the ground that it had allocated its available resources to other purposes, the question whether it had done so in good faith would be justiciable. An analogy in the law of contract can be found in Meehan v. Jones [46] where it was held that a contract did not fail for uncertainty when a "subject to satisfactory finance" clause was construed as requiring the purchaser to act honestly and reasonably. Mason J. said [47] : "There is in this formulation no element of uncertainty - the courts are quite capable of deciding whether the purchaser is acting honestly and reasonably. The limitation that the purchaser must act honestly, or honestly and reasonably, takes the case out of the principle ", that is, out of the principle stated by Kitto J. in Placer Development Ltd. When a contract is made with a public body under a duty to act and decide according to a recognizable principle, "the court may be willing to find an obligation which requires that body to reach a decision, in accordance with that principle, as to a matter left to its decision in the contract itself, and so find an enforceable contract where one might not be found between private parties": Cudgen Rutile (No. 2) Ltd. v. Chalk [48] . An agreement, even between private parties, is not void for uncertainty "because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract": per Kitto J. in Thorby v. Goldberg [49] .

The Governor-General may make regulations for and in relation to giving effect to an agreement specified in the Schedule. The agreements specified in the schedule are five agreements between Australia and other countries including the Convention. The other four agreements relate to Wetlands of International Importance, Conservation of Antarctic Seals, International Trade in Endangered Species and the Protection of Migratory Birds and Birds in Danger of Extinction. Section 6(1)(e) declares that one of the objects of Pt II is to make provision for the establishment and management of parks and reserves "for facilitating the carrying out by Australia of obligations under, or the exercise by Australia of rights under, agreements between Australia and other countries". If regulations under s. 69 could be made to implement the Convention in all respects, the argument runs, s. 6(1)(e) would be unnecessary. To give s. 6(1)(e) and s. 69 a complementary function it was submitted that s. 69 should be confined in its operation to parks and reserves established under Pt II on land acquired by the Commonwealth, so that regulations made under s. 69 should supplement the provisions of Pt II regulating those parks and reserves. But s. 6(1)(e) furnishes no foundation for reading down the general language of s. 69(1) further than is necessary to avoid inconsistency between regulations made under s. 69 and the provisions of Pt II. Part II does not purport to do more than to provide for the establishment and management of parks and reserves by the Commonwealth; it is not otherwise adapted to the implementing of any of the agreements in the Schedule. The implementing of those agreements, in so far as Pt II does not provide what is appropriate for giving effect to them, is necessarily left to the regulations made under s. 69. The Wilderness Regulations fall within the statutory power. Deferring for the moment consideration of the arguments based on s. 51(xxxi) and s. 100 of the Constitution, I would hold the Wilderness Regulations to be a valid law of the Commonwealth.

The next question is whether the Commonwealth may, under the power arising from the obligation imposed by Arts. 4 and 5, make a law which restricts the use of any identified property the protection and conservation of which is a matter of international obligation in the ways specified in s. 9(1)(a) to (g). That question is to be determined without reference to the features of the particular properties which have been or may hereafter be declared under s. 6(3) to be properties to which s. 9 applies, for pars. (a) to (g) prohibit the doing of specified acts on every kind of identified property that Australia is obliged to protect and conserve. The protection and conservation of some properties may be ill-served by the imposition of such restrictions. Take the present case. If the Commonwealth has validly exercised its power to halt construction of the dam, there may be some structures already there that should be removed to allow the area to return, as far as may be, to a condition of wilderness. In that event, the obligation of conservation would be impeded by the statutory prohibition against destroying a structure (par. (d)). The fact is that protection and conservation are functions that can only be performed with respect to an individual property; those functions have to be performed according to the condition of the property at the time and with reference to any threat that may then be posed by specific dangers. That fact is reflected in the drafting of the World Heritage in Danger provisions of the Convention (Art. 11 cl. 4). The difficulty with pars. (a) to (g) of s. 9(1) is that they generally prohibit the kinds of acts therein specified whenever done on any property to which s. 9 applies or may be made to apply. It is impossible to say that such provisions, in their application to all such properties at all times, would conduce to the protection and conservation of those properties. They art too wide. But are they saved by the Minister's power to consent in writing to the doing of the acts mentioned? Section 13(1) confines the Minister's discretion:

In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property. A prohibition that would be invalid because it is too wide to be conducive to the purpose for which the law might validly be made can sometimes be saved if the law provides for a discretionary power to lift the prohibition. A licensing system may be provided for, and such a system will be valid if the law so confines the exercise of the discretion that the licensing authority cannot have regard to factors foreign to the purpose for which law might validly be made: see the Second Airlines Case [60] , esp. per Kitto J. Section 13(1) of the Act precludes the Minister from having regard to factors foreign to the purpose of fulfilling the Convention obligation, and it might reasonably be thought that the Minister's exercise of his discretion to consent in particular cases would secure the faithful pursuit of that purpose in those cases. But I cannot think that the reposing of a discretion in the Minister is a real attempt to create a licensing system for the mass of cases that might arise. The Minister's consent might be sought by persons wishing to do trivial acts upon any property declared under s. 6(3); the property may be in any part of the six States; the Minister is given no power to delegate his power to consent; and the Act makes no provision for an administrative system for the reception and disposition of applications for consent. If the validity of a law depends upon the creation of a licensing system, a failure to make provision for administration of the system where such provision is necessary is fatal to the law's validity: cf. per Williams J. in Armstrong v. Victoria [61] . The Act fails to provide an administrative system by which the discretion conferred on the Minister might ensure that the operation of the Act faithfully pursues the purpose of protection, conservation and presentation under the Convention. It follows that pars. (a) to (g) of s. 9(1) are, in my opinion, invalid. 1. (1965) 113 C.L.R. 54, at pp. 112-113. 2. (1955) 93 C.L.R. 264, at p. 281.

The constitutional issue thus arises: are the prohibitions contained in s. 10 laws with respect to trading corporations? Laws with respect to trading corporations are laws with respect to artificial persons. To be such a law, the law must discriminate: that is to say, it must be a law which operates to confer a benefit or impose a burden upon those persons when its operation does not confer a like benefit or impose a like burden on others: Fontana Films [65] . Section 10 of the Act is discriminatory. It imposes a restriction upon the use of property by the several categories of corporations mentioned in pars. (a), (b) and (c) of s. 10(2), which include trading corporations formed within the limits of the Commonwealth, but it does not impose a like restriction on other persons. Section 10(2) and (3) directs its commands to trading corporations without any relevant qualification; s. 10(4) directs its commands to trading corporations where the corporation does the relevant act in contravention of a command "for the purposes of its trading activities". Sub-sections (2) and (3) give rise to the question whether a law which merely prohibits a trading corporation from doing an act that may be unconnected with its trade is a law with respect to trading corporations. That question has not hitherto been decided by this Court. In Strickland v. Rocla Concrete Pipes Ltd. [66] , Barwick C.J. expressed the opinion that a law addressed specifically to trading corporations is not, without more, sufficient to attract the corporations power. Menzies J. left that question open [67] . It was unnecessary to decide it in Fontana Films. If sub-s. (4) of s. 10 applies to the H.E.C.'s construction of the dam, the question need not be decided now. For the reasons which I stated in Fontana Films [68] , I should not wish to decide a question wider than the circumstances of the case require. The acts prohibited by sub-s. (4) are the acts referred to in sub-ss. (2) and (3), and the qualification "for the purposes of its trading activities" results in the affection of the trading activities of trading corporations. It is clearly a law with respect to trading corporations, but can its validity be sustained without deciding the validity of sub-ss. (2) and (3)?

His Honour discounted the importance of, if not the necessity for, scientific proof of the biological element: The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. In England in Mandla v. Dowell Lee [73] , Kerr L.J. in reference to the words "race or ethnic or national origins" said: "they clearly refer to human characteristics with which a person is born and which he or she cannot change, any more than the leopard can change his spots." Membership of a race imports a biological history or origin which is common to other members of the race, but Richardson J. is surely right in denying the possibility of proving ultimate genetic ancestry. However, in my respectful opinion, I do not think his Honour was propounding his "real test" of common regard as being conclusive or exhaustive. Actual proof of descent from ancestors who were acknowledged members of the race or actual proof of descent from ancestors none of whom were members of the race is admissible to prove or to contradict, as the case may be, an assertion of membership of the race. Though the biological element is, as Kerr L.J. pointed out, an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. Physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power. 1. [1979] 2 N.Z.L.R. 531. 2. [1979] 2 N.Z.L.R., at p. 542. 3. [1983] 1 Q.B. 1, at p. 19.

As one moves away from those matters which lie at the heart of the inherent powers of the Commonwealth, it becomes increasingly predictable that any such powers will be confined within areas in which there is no real competition with the States. There are, no doubt, areas within the plenitude of executive and legislative power shared between Commonwealth and States (see Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [88] ; Smith v. Oldham [89] ) which, while not included in any express grant of legislative power, are of real interest to the Commonwealth or national government alone. Even in fields which are under active State legislative and executive control, Commonwealth legislative or executive action may involve no competition with State authority: an example is the mere appropriation and payment of money to assist what are truly national endeavours. It is unnecessary to pursue the subject here, however. It suffices, for present purposes, to say that I consider that the inherent powers of the Commonwealth could not, on any proper approach, be seen as including the power to enact a law imposing drastic restrictions of the type contained in s. 9 of the Act in respect of "identified property" (as defined in s. 3(2) of the Act) in relation to which the requirements of sub-ss. (2)(e) and (3) of s. 6 of the Act are satisfied. Those restrictions would involve the potential freezing of the "identified property" to which they were applied and would, to no small extent, override and displace the ordinary legislative and executive powers of the State, in which such property was situate, to authorize or regulate conduct thereon. The fact that particular physical property or artistic, intellectual, scientific or sporting achievement or endeavour is "part of the heritage distinctive of the Australian nation" may well be decisive of the question whether the protection, preservation or promotion of such property, achievement or endeavour may be made the object of an appropriation of money by the Commonwealth Parliament or of Commonwealth action to assist or complement actions of a State. In the absence of any relevant grant of power to the Commonwealth however, that fact cannot constitute the basis of some unexpressed power in the Commonwealth to arrogate to itself control of such property, achievement or endeavour or to oust or override the legislative and executive powers of the State in which such property is situate or such achievement or endeavour has been effected or is being pursued.

The external affairs power: National Parks Act, s. 69; Act, ss. 6 (other than sub-s. 2(e)) and 9. Section 51(xxix) of the Constitution provides that the Commonwealth Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs. The phrase "external affairs" is, like the phrase "foreign affairs" and "foreign relations", a composite one in which the noun exists in its plural form: see, e.g., "affair": Oxford English Dictionary, p. 150; "foreign affairs": Webster's Third New International Dictionary, p. 889. The use of the singular "external affair" to refer to a particular matter or aspect of "external affairs" is not only inapposite: it is liable to convey incorrect shades of meaning which will assume added significance if one proceeds to engage in the reverse process of defining the limits of the external affairs power by reference to whether a particular matter or object can or cannot properly be described as an "external affair". It was, in my view, for that reason that, up until Airlines of N.S.W. Pty. Ltd. v. New South Wales [No. 2] [90] , the singular "external affair" was not used in judgments in this Court in relation to the legislative power conferred by s. 51(xxix). Thus, one finds in the judgments in R. v. Burgess; Ex parte Henry [91] the consistent use of the phrases "external affairs", "external relations", "foreign affairs" and "foreign relations" - phrases "between which" Latham C.J. stated that he could "draw no distinction" [92] - and of phrases such as "a matter of external affairs" or "an aspect of external affairs" when it was necessary to refer to a single subject. More importantly, "the meaning" which Latham C.J. gave to the phrase "external affairs" and the words in which Evatt and McTiernan JJ. explained what is comprehended by the phrase, in the passages set out below, lie ill indeed with the notion that the reference to external affairs in s. 51(xxix) can properly be regarded as a reference to a number of distinct items each of which can appropriately be identified as "an external affair".

The establishment of a political community involves the possibility, indeed the practical certainty in the world as it exists today, of the establishment of relations between that community and other political communities. Such relations are necessarily established by governments, which act for their people in relation to other peoples, rather than by legislatures which make laws for them. This fact of international intercourse is unaffected by the fact that a government may think it wise or (as in the United States of America) be bound, to obtain legislative approval of certain of its international acts. The regulation of relations between Australia and other countries, including other countries within the Empire, is the substantial subject-matter of external affairs. Such regulation includes negotiations which may lead to an agreement binding the Commonwealth in relation to other countries, the actual making of such an agreement as a treaty or convention or in some other form, and the carrying out of such an agreement. (Emphasis added.) Evatt and McTiernan JJ. said [98] : Therefore the real question is - what is comprehended by the expression "external affairs". It is an expression of wide import. It is frequently used to denote the whole series of relationships which may exist between States in times of peace or war. It may also include measures designed to promote friendly relations with all or any of the nations. Its importance is not to be measured by the output of domestic legislation on the topic because this sphere of government is characterized mainly by executive or prerogative action, diplomatic or consular. As has already been noted, the phrase "external affairs" occurs, and is used in the very wides sense, in the Imperial Conference declaration of 1926. It would seem that, in sec. 51 of the Constitution, the phrase "external affairs" was adopted in preference to "foreign affairs," so as to make it clear that the relationship between the Commonwealth and other parts of the British Empire, as well as the relationship between the Commonwealth and foreign countries, was to be comprehended. They concluded [99] : It would seem clear, therefore, that the legislative power of the Commonwealth over "external affairs" certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers. 1. (1936) 55 C.L.R., at p. 643. 2. (1936) 55 C.L.R., at p. 684. 3. (1936) 55 C.L.R., at p. 687.

Latham C.J. and Evatt and McTiernan JJ. constituted a majority of the Court in Burgess' Case. The actual decision in the case is direct authority for the proposition that legislation empowering the Governor-General to make regulations for carrying out and giving effect to the Paris Convention on Aerial Navigation (1919) and to the provision of any amendment of that Convention was a valid exercise of the external affairs power. The subject of the Paris Convention possessed characteristics which made it "indisputably international in character" and the judgment of Dixon J. proceeds on that basis [1] . Starke J. [2] , referred to the possibility that it "may be that laws will be within power" only if their subject-matter is, in words used by Willoughby in connexion with the United States treaty-making power, "of sufficient international significance to make it a legitimate subject for international cooperation and agreement": Constitutional Law of the United States, 2nd ed. (1929), p. 519. Such a qualification, if accepted, would be less restrictive than that suggested by Dixon J. It would, however, seem more appropriate as a qualification upon the power of the executive to make treaties than upon the power of the Parliament to carry them into effect: this is particularly so in the context of Starke J.'s statement [2] that, subject to the express and implied limitations which restrain generally the exercise of federal powers, the legislative power conferred by s. 51(xxix) "is comprehensive in terms and must be commensurate with the obligations that the Commonwealth may properly assume in its relations with other Powers or States " (emphasis added). Be that as it may, such a qualification was not an essential element in the reasoning of the other members of the Court. Latham C.J. [3] expressly referred to - and rejected - an argument that "the power to legislate with regard to external affairs is limited to matters which in se concern external relations or to matters which may properly be the subject-matter of international agreement". He concluded, after reference to some of the treaties to which Australia was a party or which affected Australia, that "the possible subjects of international agreement are infinitely various" and that it is "impossible to say a priori that any subject is necessarily such that it could never properly be dealt with by international agreement". Evatt and McTiernan JJ. [4] stated that the prerogative "to enter into international conventions cannot be limited in advance of the international situations which may from time to time arise" and expressed the view that "the fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement". Burgess' Case is authority for the proposition that the "substantial subject-matter of external affairs" includes "the carrying out", within or outside Australia, of an agreement binding the Commonwealth in relation to other countries whatever the subject-matter of the agreement may be.

The establishment and protection of the means of conducting international relations, the negotiation, making and honouring (by observing and carrying into effect) of international agreements, and the assertion of rights and the discharge of obligations under both treaties and customary international law lie at the centre of a nation's external affairs and of the power which s. 51(xxix) confers. They do not, however, cover the whole field of "external affairs" or exhaust the subject-matter of the legislative power. The full scope of the power is best left for determination on a case by case basis - "by a course of decision in which the application of general statements is illustrated by example": per Dixon J. in Burgess' Case [6] . It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today's world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation. This was recognized by Evatt and McTiernan JJ. in Burgess' Case when, in the sentences following the extract of their judgment set out above [7] , they commented that "it is not to be assumed that the legislative power over "external affairs" is limited to the execution of treaties or conventions" and illustrated the comment by adding that "the Parliament may well be deemed competent to legislate for the carrying out of "recommendations" as well as the "draft international conventions" resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject-matters of concern to Australia as a member of the family of nations". Circumstances could well exist in which a law which procured or ensured observance within Australia of the spirit of a treaty or compliance with an international recommendation or pursuit of an international objective would properly be characterized as a law with respect to external affairs, notwithstanding the absence of any potential breach of defined international obligations or of the letter of international law.

It is apparent that the nature of this power necessitates a faithful pursuit of the purpose, namely, a carrying out of the external obligation, before it can support the imposition upon citizens of duties and disabilities which otherwise would be outside the power of the Commonwealth. No doubt the power includes the doing of anything reasonably incidental to the execution of the purpose. But wide departure from the purpose is not permissible, because under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject-matter to which it relates. Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it. Thus, to take an extravagant example, a law requiring that all sheep in Australia be slaughtered would not be sustainable as a law with respect to external affairs merely because Australia was a party to some international convention which required the taking of steps to safeguard against the spread of some obscure sheep disease which had been detected in sheep in a foreign country and which had not reached these shores. The absence of any reasonable proportionality between the law and the purpose of discharging the obligation under the convention would preclude characterization as a law with respect to external affairs notwithstanding that Tweedledee might, "contrariwise", perceive logic in the proposition that the most effective way of preventing the spread of any disease among sheep would be the elimination of all sheep. The law must be seen, with "reasonable clearness", upon consideration of its operation, to be "really, and not fancifully, colourably, or ostensibly, referable" to and explicable by the purpose or object which is said to provide its character: cf., as regards the defence power, R. v. Foster [16] ; Shrimpton v. The Commonwealth [17] ; Marcus Clark & Co. Ltd. v. The Commonwealth [18] . In that regard, the "peculiar" or "drastic" nature of what the law provides or the fact that it pursues "an extreme course" is relevant to characterization: cf. R. v. Foster [19] . 1. (1936) 55 C.L.R., at pp. 687, 642 and 669. 2. (1982) 153 C.L.R., at pp. 231, 260. 3. (1939) 61 C.L.R., at pp. 644, 647-648, 655. 4. (1965) 113 C.L.R., at p. 136. 5. (1936) 55 C.L.R., at pp. 659-660. 6. (1939) 61 C.L.R., at p. 647. 7. (1965) 113 C.L.R., at p. 86. 8. (1936) 55 C.L.R., at p. 674. 9. (1949) 79 C.L.R. 43, at p. 84. 10. (1945) 69 C.L.R. 613, at pp. 623-624. 11. (1952) 87 C.L.R. 177, at pp. 215-216, 256. 12. (1949) 79 C.L.R., at pp. 96-97.

However loosely such obligations may be defined, it is apparent that Australia, by depositing its instrument of ratification, bound itself to observe the terms of the Convention and assumed real and substantive obligations under them. Apart from the obligation to pay contributions (Art. 16), the most clearly defined obligations assumed by Australia under the Convention are those relating to properties, such as the Wilderness National Parks, which have been included, on Australia's nomination, in the World Heritage List. Such properties have been specifically identified as properties in respect of which obligations undertaken by Parties to the Convention are applicable (see Arts. 6(1) and (2), 11, 13). A main purpose of the provisions relating to establishing and keeping the World Heritage List with its requirement that a property be not entered without the agreement of the State in whose territory it is situated is to identify property which is indisputably subjected to the terms of the Convention. Those obligations include the primary "duty of ensuring", among other things, the protection, conservation and presentation of the relevant property (Art. 4) and an express undertaking to "endeavour, in so far as possible, and as appropriate for each country", to "take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation" thereof (Art. 5(d)). The burden of international obligation in respect of properties entered upon the World Heritage List is, at least to some extent, counterbalanced by the express recognition, on the part of other States Parties, that those properties constitute a world heritage "for whose protection it is the duty of the international community as a whole to co-operate" and by an express undertaking by such other States Parties, in accordance with the provisions of the Convention, to give their help in the identification, protection, conservation and preservation of such properties (Art. 6). For its part, the World Heritage Committee is required to receive and study requests for international assistance formulated by States Parties with respect to such properties (Art. 13). Such assistance may take the form of expert advice, labour, supply of equipment, interest-free loans and, in exceptional circumstances, non-repayable subsidies (Art. 22). Unless one is to take the view that over seventy nations have engaged in the solemn and cynical farce of using words such as "obligation" and "duty" where neither was intended or undertaken, 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 which have, 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. Those obligations have been undertaken by Australia in relation to, amongst other "properties", the Wilderness National Parks.

Article 34 of the Convention makes special provision in respect of States Parties to the Convention which have a federal or nonunitary constitutional system. It provides that, with regard to the provisions of the Convention whose implementation comes under the legal jurisdiction of the federal or central legislative power, "the obligations of the federal or central government shall be the same as for those States Parties which are not federal States" and that, with regard to those provisions whose implementation "comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons", "the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption". It was submitted on behalf of Tasmania that the effect of the provisions of Art. 34 is to absolve the Commonwealth of the obligation to carry the Convention into effect in so far as the protection or conservation of properties situated within a State is concerned. In my view, there is a plain answer to that submission. Article 34 acts on the distribution of powers under the Constitution. As I have indicated, I consider that, under that distribution of powers, the carrying into effect of the Convention is within the paramount legal jurisdiction of the Commonwealth Parliament by virtue of the express grant of legislative power contained in s. 51(xxix). It follows that, far from absolving the Commonwealth of the obligation to implement the provisions of the Convention, Art. 34 underlines, in express terms, the "obligations" of the Commonwealth in that regard. I would add that, even if I had been persuaded that the Commonwealth could avoid the obligation to carry the Convention into effect by relying upon the provisions of Art. 34, I would have been of the view that the decision whether or not reliance should, in fact, be placed on the provisions of that article would be a matter for decision by the Commonwealth in the conduct of Australia's external affairs.

The characterization of a law for the purposes of s. 51 of theConstitution is not an unrealistic or pedantic procedure to be performed by extracting the words that constitute the heart of the legislative power from their context in a plenary grant of power and then proceeding to the abstract question of whether the appropriate description of the impugned law is a law with respect to the extracted words. It is a task to be discharged with regard to substance and with reference to the full scope of the grant of legislative power. As has been previously mentioned, it is settled that a law may exhibit a number of characters and that, provided one of the characters comes within the ambit of the grant of legislative power, the law is within power. Thus, it was recently held by this Court (Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. [35] ) that a law which directed no command to trading corporations but which was concerned with the protection of their trading activities was a law with respect to trading corporations. Viewed as a matter of substance, a special law which protects the persons or the property or the activities of Aboriginal people is not only a law with respect to the prohibited actions against such persons, property or activities. It is also a law with respect to people of the Aboriginal race. Indeed, so much was rightly conceded in argument. In my view, a law which protects those - and only those - endangered Aboriginal sites included in the "cultural heritage" which satisfy the requirement that they are of particular significance to people of the Aboriginal race is not only a law with respect to Aboriginal sites. It is a law of the character which comes within the primary scope of the grant of legislative power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. The reference to "people of any race" includes all that goes to make up the personality and identity of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage. A power to legislate "with respect to" the people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of particular significance to that spiritual and cultural heritage. Subject to any general constitutional restriction and any question of "just terms", ss. 8 and 11 of the Act are within the legislative power conferred upon the Parliament by s. 51(xxvi).

If the Commonwealth could, in these circumstances, be seen as gaining for itself a material benefit of a proprietary nature from the restrictions imposed in respect of the H.E.C. land, I would have no hesitation in concluding that there had been an acquisition of property for the purposes of the Commonwealth. With some hesitation, I have come to the view that the absence of any material benefit of that nature does not, in the circumstances of the present case, avoid the conclusion that there has been such an acquisition. The Commonwealth has, by the Wilderness Regulations, brought about a position where the H.E.C. land is effectively frozen unless the Minister consents to development of it. On its own case in this Court, it has brought about that position for the purpose of fulfilling its international obligations under the Convention. On its own case, it has set out to protect and conserve the H.E.C. land as a natural park. If there were any reason in principle which prevented the achievement of that objective, by the imposition of restrictions, from ever constituting an acquisition of property, the safeguard of s. 51(xxxi) would be ineffective to preclude the Commonwealth from effectively dedicating the property of others to its purposes without compensation whenever such dedication could be achieved by the imposition of carefully-worded restrictions upon an owner's use and enjoyment of his land. In my view, there is no such reason in principle. The benefit of a restrictive covenant, which prohibits the doing of certain acts without consent and which ensures that the burdened land remains in a state which the person entitled to enforce the covenant desires to have preserved for purposes of his own, can constitute a valuable asset. It is incorporeal but it is, nonetheless, property. There is no reason in principle why, if "property" is used in a wide sense to include "innominate and anomalous" interests, a corresponding benefit under a legislative scheme cannot, in an appropriate case, be regarded as property.

The relevant provisions of s. 17 of the Act are set out in the judgment of the Chief Justice. In summary, their effect is as follows. Where a person ("the claimant") considers that the operation of the Act or of the Regulations has resulted in an acquisition of property from him, he may give notice in writing to the Minister requesting the Minister to pay a specified amount of compensation ("the claimed amount") in respect of the acquisition (s. 17(3)). If, within three weeks, the Minister gives notice advising that he does not consider that there has been such an acquisition, the claimant may apply to the High Court for a declaration that there has been (s. 17(4)). If the Minister does not give such a notice within three weeks, the operation of the Act or the Regulations shall be taken to have resulted in such an acquisition (s. 17(5)). If the Minister has given such a notice and the High Court subsequently declares that there has been such an acquisition, the Commonwealth is then liable to pay such compensation as is agreed or, failing agreement, "as is determined in accordance with the succeeding provisions of this section" (s. 17(6)). The procedure established for determining the amount of compensation varies according to whether the amount claimed is less than $5,000,000. If the amount claimed is less than $5,000,000, the claimant may apply to the Federal Court to "determine the compensation that is fair and just in respect of the acquisition" (s. 17(14)(a)). If the amount claimed is equal to or more than $5,000,000, the Act establishes a compulsory waiting period of six months in which agreement as to the amount might be reached. After that waiting period without agreement, the Governor-General shall, after fourteen days' notice, establish a Commission of Inquiry (s. 17(7)(b)). The Commission of Inquiry shall, before the expiration of twelve months after its establishment, report in writing to the Governor-General setting out its "recommendation" as to the compensation that is "fair and just in respect of the acquisition" (s. 17(10)). Within three months of the receipt of those recommendations, the Governor-General shall "if the person and the Commonwealth have not reached agreement as to the compensation payable, having regard to the report of the Commission and to such other matters as the Governor-General considers relevant, determine the compensation that the Governor-General considers to be fair and just in respect of the acquisition" (s. 17(12): emphasis added). If the claimant considers that the amount determined by the Governor-General is not fair and just, he may then apply to the Federal Court to "determine the compensation that is fair and just in respect of the acquisition" (s. 17(14)).

Paragraph (xxix) has been held to support legislation for the acceptance and government of the Mandated Territory of New Guinea (Jolley v. Mainka [63] ), for the reciprocal surrender of persons charged with criminal offences (Ffrost v. Stevenson [64] ), to carry into execution within Australia the provisions of Pt X of the Treaty of Versailles (Roche v. Kronheimer [65] ; and see R. v. Burgess; Ex parte Henry [66] ), to give effect to the Paris Convention for the Regulation of Air Navigation (R. v. Poole; Ex parte Henry [No. 2] [67] ), to carry out certain provisions of the Chicago Convention on International Civil Aviation (Airlines of N.S.W. Pty. Ltd. v. New South Wales [No. 2] [68] ) and to give effect to the Convention on the Territorial Sea and Contiguous Zone (New South Wales v. The Commonwealth [69] ). Notwithstanding these decisions, there were at least two distinct views of the power afforded by s. 51(xxix) to implement international agreements by domestic legislation. On the one hand there was the view expressed by Evatt and McTiernan JJ. in R. v. Burgess; Ex parte Henry ( "Burgess' Case" ) [70] , that the legislative power of the Commonwealth extends to the execution of any bona fide treaty or convention entered into with a foreign country and might even extend to the carrying out of international recommendations or requests "upon other subject-matters of concern to Australia as a member of the family of nations". This view, which seemed to Dixon J. in the same case to be extreme, may be contrasted with the opinion expressed by him [71] that the nature of the external affairs power indicates limits upon the power of the Parliament to pass laws in the implementation of treaty obligations. Those limits are met, upon his view, if a treaty is made which binds the Commonwealth in reference to some matter which is international in character. In that event, a law might be made to secure the observance of the treaty obligations if they are of a nature affecting the conduct of Australian citizens. 1. (1982) 153 C.L.R. 168. 2. (1982) 153 C.L.R., at p. 255. 3. (1933) 49 C.L.R. 242, at pp. 250, 281, 286. 4. (1937) 58 C.L.R. 528, at p. 557. 5. (1921) 29 C.L.R. 329, at pp. 338-339. 6. (1936) 55 C.L.R., at p. 641. 7. (1939) 61 C.L.R. 634, at pp. 644, 645, 654. 8. (1965) 113 C.L.R. 54. 9. (1975) 135 C.L.R. 337, at pp. 361, 364-365, 377, 475-476, 503. 10. (1936) 55 C.L.R. 608, at p. 687. 11. (1936) 55 C.L.R., at p. 669.

There is in the Constitution no express power conferred upon the executive to make treaties with other countries or upon the Parliament to implement treaties if made on behalf of this country. In 1897 the draft Commonwealth of Australia Bill contained a covering cl. 7 which provided that all treaties made by the Commonwealth as well as all laws made by the Parliament should be binding throughout the Commonwealth and should be in force on board all British ships whose last port of clearance or whose port of destination was in the Commonwealth. The external affairs power originally referred to "external affairs and treaties". The references to treaties in both the covering clause and par. (xxix) were omitted (see Convention Debates of 9 September 1897 and 21 January 1898) and the only reference to treaties in the Constitution is in s. 75(i), which bestows original jurisdiction upon the High Court in all matters arising under treaties. There can be little doubt that the express omission of any reference to the making of treaties was a reflection of the accepted view at the time that the treatymaking power was, and was to remain, in the Imperial Crown and was to form no part of the functions of the Commonwealth. It is consistent with this view that s. 61 of the Constitution extends the executive power of the Commonwealth to the execution and maintenance of the Constitution and of the laws of the Commonwealth. In 1901 it was not thought that the commonwealth executive power extended to the making of treaties with other countries, nor was it thought that it should do so. The events which marked the emergence of Australia to dominion status and finally as an independent international personality were the result, not of any increase in the powers vested in the Commonwealth by the Constitution, but of the removal by the Statute of Westminster of any restrictions upon legislation having extra-territorial effect or repugnant to Imperial legislation and of the de facto recognition of a new status by other nations. No doubt the conclusion of treaties on behalf of Australia is still in the name of the Crown, although obviously not any longer the Imperial Crown, and may perhaps be viewed as an exercise of the Crown prerogative to conclude treaties. Such a view is, however, not without anomaly having regard to s. 2 of the Constitution which makes specific provision for the powers and functions of the Crown to be assigned to the Governor-General. The prerogative power to make treaties has not been assigned.

In that case it was conceded that ss. 9 and 12 of the Racial Discrimination Act 1975 Cth were in conformity with the relevant obligations imposed by the International Convention on the Elimination of All Forms of Racial Discrimination. By a majority of four justices to three, it was held that those sections were laws with respect to external affairs within the meaning of s. 51(xxix) and were, accordingly, validly enacted. Of the majority of four, however, only three justices (Mason, Murphy and Brennan JJ.) held that a law implementing an obligation imposed by a treaty bona fide concluded by Australia was, by that fact and without more, a law with respect to external affairs within the meaning of s. 51(xxix). Indeed, Mason and Murphy JJ. went further. Mason J. was prepared to hold "that a matter which is of external concern to Australia having become the topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it" [83] . Murphy J. was prepared to construe the external affairs power as sufficient to support the law in question because it related "to matters of international concern, the observance in Australia of international standards of human rights, which is part of Australia's external affairs" [84] . But Mason, Murphy and Brennan JJ. were in a minority in giving to the external affairs power the breadth of operation which they did. A majority of the justices (Gibbs C.J., Stephen, Aickin and Wilson JJ.) held that the mere fact that a law gives effect to treaty obligations will not for that reason alone make it a law with respect to external affairs. Gibbs C.J., with whom Aickin and Wilson JJ. agreed, expressed the view that "a law which carries into effect the provisions of an international agreement will only have the character of a law with respect to external affairs if the provisions to which it gives effect answer that description" [85] . And Stephen J. said [86] : "It will not be enough that the challenged law gives effect to treaty obligations." There was, therefore, a clear rejection by the Court in Koowarta v. Bjelke-Petersen of the extreme view of the external affairs power which was propounded in Burgess' Case by Evatt and McTiernan JJ.

The subject-matter of the regulations made under s. 69 of the National Parks and Wildlife Conservation Act and of s. 9 of the World Heritage Properties Conservation Act is the protection and conservation of certain property which forms part of the cultural heritage or natural heritage within the meaning of the Convention. The measure of international concern over the cultural or natural heritage is, I think, to be gauged from the Convention itself, that being the furthest point to which the international community has been prepared to go generally in adopting a common standpoint in relation to those matters. The Court was referred by the Commonwealth to a number of international instruments commencing in 1900 and to the travaux preparatoires of the Convention, all of which indicated world concern about cultural and environmental matters. These culminated, for present purposes, in the UNESCO Recommendation concerning the protection, at national level, of the cultural and natural heritage, which was adopted in 1972 shortly before the adoption of the Convention. The Recommendation, however, goes no further than to indicate a level of concern similar to that indicated by the Convention. Indeed, the Recommendation is in important respects adopted by or reflected in the Convention. Tasmania, on the other hand, pointed to the limited extent to which the international community is prepared to countenance the imposition of international obligations for environmental purposes as evidenced by the Stockholm Declaration on the Human Environment which was also made in 1972. Principle 21 of that document declares that "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". In addition, the Court was referred to the Charter of Economic Rights and Duties of States adopted in 1974 which, in Chs. 1 and 2, contains assertions to the same effect as Principle 21 of the Stockholm Declaration. It is pertinent to remark, having regard to Koowarta v. Bjelke-Petersen, that in the same context the Charter affirms without qualification the principle of respect for human rights and fundamental freedoms.

It is apparent, I think, from the foregoing that the Convention for the Protection of the World Cultural and Natural Heritage falls short of demonstrating the degree of international concern over its subject-matter which Stephen J. would have considered sufficient to stamp it with the characteristics necessary to make it part of this country's external affairs. Indeed, the Convention itself points in the opposite direction. It is at pains to restrict the degree of concern which it shows so that there can be no suggestion of international invasion of the sovereign right of nations to determine for themselves the manner in which they will exploit their resources, notwithstanding the threat of impoverishment of the heritage of the world. All of this is a far cry from the Convention on the Elimination of All Forms of Racial Discrimination which does speak in the unambiguous terms of absolute imperatives. With the latter Convention it was possible to see by the nature of its provisions that any failure on the part of this country to observe them would affect other nations and this country's relations with them. Moreover, the international setting in which that Convention was adopted, as set out in the judgment of Stephen J. in Koowarta v. Bjelke-Petersen [4] , served to emphasize the conclusion which he reached, which was that racial discrimination, like slavery and genocide, was of immediate relevance to international relations and its unacceptability was, if not a part of customary international law, close to it. Not only does the Convention for the Protection of the World Cultural and Natural Heritage expressly reserve to the Parties to it the right to make their own decisions concerning how and when and whether they will act to achieve its objectives, but the international setting in which the Convention was adopted and which is illustrated by the documentary material to which the Court was referred, serves to demonstrate, if anything, that the Convention accurately reflects world opinion. I am for these reasons of the clear view that, even if international concern is a relevant factor in determining whether a law enacted in the implementation of a treaty is a law with respect to external affairs in accordance with the views of Stephen J., in this case no international concern of the requisite kind or degree can be demonstrated in relation to the subject-matter of the laws in question or of the treaty obligations which they are intended to implement. It goes without saying that, in my view, if the degree of international concern is insufficient to support the implementation of the Convention, it is insufficient to support legislation upon the subject-matter of the Convention independently of it.

In most of the paragraphs of s. 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject-matter However, the fact that the legislative power contained in s. 51(xx) is defined by reference to persons of a particular description does not mean that those persons do not form the subject-matter of the power or that it is not necessary for the validity of a law made under s. 51(xx) that it be a law with respect to that subject-matter. To put it as it was expressed in argument on behalf of the Hydro-Electric Commission, s. 51(xx) of the Constitution treats foreign corporations and trading corporations formed within the limits of the Commonwealth as subjects of legislative power and not as objects of legislative command. To recognize this is to enable a qualified answer to be given to the question whether a law beginning "every foreign or trading corporation shall " or "every foreign or trading corporation shall not " is a valid law: cf. Strickland v. Rocla Concrete Pipes Ltd. [7] , per Menzies J. For the answer must be that such a law is not necessarily a valid law; its validity will depend upon whether the command or prohibition goes to something which may be said to be within the subject-matter, that subject-matter being defined by reference to corporations of the description contained in s. 51(xx). As was said by Barwick C.J. in Strickland v. Rocla Concrete Pipes Ltd. [8] : " it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject-matter of s. 51(xx). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law." The submission put on behalf of the Commonwealth, when reduced to its essentials, was that an affirmative answer must be given in all cases to the question which I have posed above, but that is a submission which is not consonant with the preponderance of authority and would, if accepted, produce extraordinary results, "big with confusion": see Huddart, Parker & Co. Pty. Ltd. v. Moorehead [9] , per Higgins J. 1. (1944) 69 C.L.R. 457, at p. 471. 2. (1971) 124 C.L.R. 468, at p. 508. 3. (1971) 124 C.L.R., at pp. 489-490. 4. (1909) 8 C.L.R. 330, at p. 409.

Section 51(xxvi) gives power to the Parliament to make laws for the people of any race for whom it is deemed necessary to make special laws. The meaning of the word "race" is otherwise imprecise, but the words "other than the aboriginal race in any State", which were deleted from par. (xxvi) by amendment, make it clear that the term "any race" includes a race which may be described as the Aboriginal race. That does not eliminate all problems of definition, but it is proper, I think, to assume in this case that the Aboriginal race referred to in s. 8 of the World Heritage Properties Conservation Act is sufficiently identifiable and identified as a race within the meaning of s. 51(xxvi). Section 8 of that Act declares that it is deemed necessary to enact ss. 11, 13(7) and 14(5) as special laws for the people of the Aboriginal race. Section 11 is the significant section; it is the provision which prohibits, subject to the consent of the Minister, the same activities as are prohibited by s. 9 with an additional prohibition against removing any artefacts or relics situated on any site to which the section applies. There is also a general prohibition in sub-s. (2) against doing anything without the consent of the Minister that damages or destroys or that is likely to result in damage to or the destruction of any site to which the section applies or any artefacts or relics on such a site. Sections 13(7) and 14(5) do not assist for present purposes. An Aboriginal site is defined as a site that is, or is situated within, identified property, the protection of which is, whether by reason of the presence on the site of artefacts or relics or otherwise, of particular significance to the people of the Aboriginal race. It is important to note that Aboriginal sites are by definition confined to identified property which, by definition contained in s. 2, is property forming part of the cultural heritage or natural heritage within the meaning of the Convention for the Protection of the World Cultural and Natural Heritage. Section 8(3) enables s. 11 to be brought into operation by proclamation where the Governor-General is satisfied that an Aboriginal site is being or is likely to be damaged or destroyed or that any artefacts or relics situated on an Aboriginal site are likely to be damaged or destroyed. The activities referred to in s. 11 are prohibited except with the consent of the Minister. Whilst s. 13 by sub-s. (1) requires the Minister, in determining whether or not to give consent under s. 9, to have regard "only to the protection, conservation and presentation, within the meaning of the Convention, of the property", there is no such requirement in relation to the consent of the Minister under s. 11. Other than being required to give certain notices under ss. 13(3) and (4), the Minister is at large in determining whether or not to give consent under s. 11. It is significant that in giving or refusing consent, the Minister is not required to have regard to any matters which may be said to be of significance to the people of the Aboriginal race.

Whilst Parliament may deem a law to be necessary for the people of any race and so satisfy one of the requirements of s. 51(xxvi), it cannot by so doing determine that the law is a special law for those people and so preclude any examination of its legislative power: Australian Communist Party v. The Commonwealth [24] . That must remain a question to be determined by an examination of the law for the purpose of ascertaining whether it is in truth a special law for the people of any race. Moreover, it is essential to keep in mind the distinction between a law which is specially for the people of a particular race and a law which has a special application to the people of a particular race. In the former case, there will be greater difficulty in showing that the law is a special law within the meaning of s. 51(xxvi). No more need be done here than to admit, without going further, the possibility adverted to by Stephen J. in Koowarta v. Bjelke-Petersen [25] , that the "necessary special quality might perhaps be sufficiently attracted by facts dehors the legislation". The mere fact that a law is more significant to people of a particular race than to others or is approved of by them to a greater extent than by others clearly does not make the law a special law for those people. It may be thought that the Racial Discrimination Act, certain provisions of which were declared valid in Koowarta v. Bjelke-Petersen, was a law which had a greater significance to people of the Aboriginal race than to most other people in this country, but the submission that it could be said to be a special law within the meaning of s. 51(xxvi) was rejected by those members of the Court who considered the matter in that case. In the latter case referred to above, that is, the case of a law which has a special application to the people of a particular race, if the special application is a special application in a legal sense, in that it creates a distinction between those people and others in the rights which it confers or the obligations which it imposes, the law is likely to be a special law within the meaning of s. 51(xxvi).

Commonwealth v Tasmania

At a glance

Court

Decision date

Before

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Judgment (385 paragraphs)

Parties

Cases Cited (1)

Cited By (33)