Queensland v The Commonwealth

The plaintiffs sought the following interlocutory injunctions:

(1) an order restraining the defendants from submitting to the committee a proposal that the area is suitable for inclusion in the World Heritage List referred to in art 11 of the Convention for the Protection of the World Cultural and Natural Heritage (the convention) or from taking any steps to prosecute, support, pursue or promote such a submission;

(2) an order restraining the defendants from taking any steps to procure the making of a regulation pursuant to the World Heritage Properties Conservation Act 1983 Cth (the Act) declaring that the area or any part of it forms part of the cultural or natural heritage; and

(3) an order restraining the defendants from taking any steps to procure the making of a proclamation pursuant to s 6(3) or s 7 of the Act in respect of the area or any part of it.

The defendants admitted that they were seeking to have the area entered by the committee in the World Heritage List. Indeed, the Solicitor-General for the Commonwealth, who appeared for the defendants, stated that Australia had on 18 December 1987 lodged with the committee a submission that the area should be entered in the list, but this submission was not in the prescribed form. The Solicitor-General further stated that a formal submission in the prescribed form had then been prepared and was to be lodged with the committee shortly thereafter and certainly by 1 January 1988 so that it could be considered by the committee in the course of 1988 and determined not earlier than December 1988. Under the operational guidelines adopted by the committee, if the nomination were delayed beyond 1 January 1988, it would not be processed and considered until 1989, the process culminating in a final decision in December 1989.

The defendant Minister made it known in at least one media release that activities, including logging, which are incompatible with the "outstanding values" of the area, whatever that expression may mean, will not be permitted. The plaintiffs took this to mean that the defendants intended to make a regulation under s 3(2)(a)(ii) of the Act declaring the area to form part of the natural heritage and/or make proclamations under s 6(3) or s 7 of the Act. The defendants did not contest that they proposed or contemplated taking these steps.

The plaintiffs' case rested on two grounds. The first is that the application of the Act to the area is conditioned on the area forming part of the cultural heritage or natural heritage, this being a matter that is to be determined by the objective criteria and not by reference to any legislative or executive assertion on the part of the Commonwealth. The second ground is that the defendants have failed to comply with the requirements of the Environment Protection (Impact of Proposals) Act 1974 Cth (the Environment Protection Act) which applies to certain decisions and proposals. According to the plaintiffs, the decision or the proposal to apply for World Heritage listing, the decision to declare that the area forms part of the heritage and possibly the decision to make a proclamation under s 6 or s 7 fall within the ambit of the Environment Protection Act. The plaintiffs submitted that they therefore raised a prima facie or arguable case that the steps intended to be taken by the defendants would be of no effect and that the balance of convenience favoured the grant of the injunctions.

The steps which the defendants propose to take are designed to bring into play the prohibitions contained in s 9 of the Act. Section 9(1)(a) to (g) inclusive was found to be invalid in The Commonwealth v TasmaniaTasmanian Dam case (the) (1983) 158 CLR 1. But s 9(2) prohibits, except with the consent in writing of the Minister, the doing of any act, not being an act the doing of which is unlawful by virtue of s 9(1), that damages or destroys any property to which s 9 applies. And the defendants may well procure the making of a regulation prescribing an act or acts for the purposes of s 9(1)(h) in relation to the area. Section 10 contains similar prohibitions directed to corporations.

Section 9 applies to any property which is the subject of a proclamation by the Governor-General under s 6(3). Thus the subsection empowers the Governor-General, where he is satisfied that any property in respect of which such a proclamation may be made is being or is likely to be damaged or destroyed, by proclamation to declare that property to be property to which s 9 applies. By s 6(2) a proclamation may be made under s 6(3) in relation to "identified property that is in a State" where "the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise" (s 6(2)(b)), or

the protection or conservation of the property by Australia is necessary or desirable for the purpose of giving effect to a treaty (including the Convention) or for the purpose of obtaining for Australia any advantage or benefit under a treaty (including the Convention) (s 6(2)(c)).

There are other circumstances in which a proclamation may conceivably be made under s 6(2) - see s 6(2)(a), (d) and (e) - but there is no occasion for me to refer to them.

The expression "identified property" is defined by s 3(2). The subjection provides:

A reference in this Act to identified property shall be read as a reference to -

(a) property forming part of the cultural heritage or natural heritage, being property that -

(i) the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article; or

(ii) has been declared by the regulations to form part of the cultural heritage or natural heritage; or

(b) any part of property referred to in paragraph (a).

The first two injunctions sought by the plaintiffs seek to restrain the submission by the Commonwealth of the nomination of the area to the committee and the making of a regulation declaring the area to form part of the world heritage, these being the two avenues by which the area can qualify as "identified property" within the meaning of the Act. If the plaintiffs were to succeed in obtaining such injunctions then the area would not be "identified property" with respect to which a proclamation under s 6(3) or s 7 could be made and ss 9 and 10 would have no application to it. The third injunction sought by the plaintiffs restrains the making of a proclamation under s 6(3) or s 7, even if by virtue of the lodgment of a submission to the committee or the making of a regulation, the area is or becomes "identified property".

The defendants' rejoinder to the plaintiffs' first submission that the evidence does not establish that the area forms part of the world heritage is that the plaintiffs have not established a prima facie case that the area does not constitute part of that heritage. In one sense both the submission and the rejoinder are correct. Such is the state of the evidence, or rather the lack of it, that I am unable to form any impression whether the area or any defined part of it possesses world heritage characteristics. I am, however, prepared to assume for the purposes of the action, without deciding, that there is a serious question to be tried, namely whether the area or any part of it possesses world heritage characteristics.

This does not mean that the plaintiffs are entitled to interlocutory relief. There are other factors that must be taken into account. One such factor is that the proposed nomination of the area to the committee is an act falling within the executive authority of the Commonwealth Government, apparently by way of performance of Australia's obligations under an international treaty. In such a case the court would ordinarily require a plaintiff to make out a clear, if not a strong, case for relief before granting relief by way of interlocutory injunction: cf Cantley v State of Queensland (1973) 47 ALJR 538 at 540. This is so particularly when the act sought to be restrained involves the making of a value judgment by government in the light of expert opinion and a variety of considerations on an issue which falls pre-eminently within the competence of government and the committee to determine.

The making of a regulation under s 3(2) is of course a legislative, rather than executive, act. But in this instance the function of the proposed regulation is close to that of a proclamation as the regulation does not in terms create rights and obligations. A regulation making the appropriate declaration would bring the provisions of the Act into play, provided that the property to which it refers forms part of the cultural or natural heritage. However, the character of the regulation as a legislative act does not assist the plaintiffs. Generally speaking, the courts do not restrain the executive government or a Minister from exercising subordinate law-making authority conferred by the enactments of Parliament.

One reasons for the reluctance of the courts to grant injunctions of this kind is that, if a plaintiff's case is well-founded, then the regulation is invalid. There is no point in restraining that which is ex hypothesi void and of no effect; but cf Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59, where interlocutory injunctions were granted by McTiernan J restraining the imposition of conditions on television licences. The same reasoning applies with equal force to the lodgment of the submission to the committee. If the validity of the submission depends on a determination by an Australian court, rather than the committee, of the area's character as part of the world heritage, then that is an issue which can be determined as readily after as before the lodgment of the submission. And, if it be relevant, it is an issue capable of decision before the committee finally considers the nomination.

The validity of the submission on the one hand and the validity of the apprehended regulation and proclamation are distinct and separate questions. The Act does not make provision for or regulate the making of a submission to the committee. The validity of the submission hinges on the executive power under the Constitution and the provisions of the convention. The validity of the regulation and the proclamation is primarily a question of statutory power considered in the light of the Parliament's legislative powers under the Constitution. Whether the making of a submission to the committee or the entry of a property on the World Heritage list is subject to judicial review for validity is an unexplored question.

At first glance the plaintiffs' second submission seemed to have little to commend it. It would indeed be ironical if the Commonwealth's attempt to protect and conserve the Wet Tropical Rainforest of North-East Queensland by procuring its entry on the World Heritage list failed because the Commonwealth omitted to comply with its own Environment Protection Act whose purpose emerges clearly from its long title:

An Act to make provision for Protection of the Environment in relation to Projects and Decisions of, or under the control of, the Australian Government, and for related purposes.

Entry of a property in the World Heritage list supported by the protection given by the Act, constitutes perhaps the strongest means of environment protection recognised by Australian law. However, the plaintiffs relied specifically on the definition of environment in s 3 of the Environment Protection Act whereby the word is defined so as to include "all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings". "Environmental" has a corresponding meaning. The plaintiffs argued that the definition goes beyond the physical surroundings of human beings and extends to the economic and social features of the environment, so that the notion of environmental protection embraces the need to protect human beings from loss of employment and consequential economic and social damage.

Section 5(1) needs to be read in the light of this definition. The subsection provides, so far as it is material:

The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to -

(d) the making of, or the participation in the making of, decisions and recommendations

by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.

The plaintiffs contended that the subsection, read in conjunction with the definition, requires that the economic and social aspects of the submission and of entry in the World Heritage list should be fully examined in accordance with the statutory prescription.

It is common ground that the defendants have not complied with the administrative procedures approved by the Governor-General under s 6(1) of the Environment Protection Act in formulating the proposal, or making the decision, to submit the area to the committee for entry in the World Heritage list.

The defendants submitted that the Environment Protection Act has no application to the nomination of a property for entry in the World Heritage list and, even if the statute has such an application, non-compliance does not create any rights enforceable by injunction. The inter-relationship of the two statutes raises a serious question. However, as with the plaintiffs' first submission, I do not consider that is enough to justify the grant of the interlocutory relief now sought.

Some of the considerations to which I have adverted when dealing with the plaintiffs' first submission apply with equal force here. I do not regard the plaintiffs' case as either sufficiently "clear" or "strong" to justify the making of an order restraining the defendants from lodging the proposed submission with the committee or making the proposed proclamation. To the extent to which the second submission touches the validity of the submission, that question can be determined hereafter and before the committee finally considers the nomination.

I acknowledge that the refusal of interlocutory relief leaves the way open to the defendants to bring ss 9 and 10 of the Act into operation by means of proclamations under ss 6 and 7. That, according to the evidence, would result in great hardship to people in the area, particularly to those engaged in the timber and mining industries and to communities dependent on those activities. It would also result in a substantial loss of revenue to the State of Queensland. The precise effects of the nomination of the area cannot be assessed until the details of the proposed submission, particularly the boundaries of the area, are established and the terms of any regulation to be made under s 9(1)(h) of the Act are ascertained. I instance a document released by the second defendant, put in evidence by the plaintiffs, headed "QUEENSLAND WET TROPICAL RAINFORESTS IMPLICATIONS OF WORLD HERITAGE NOMINATION".

• Most activities will not be affected by World Heritage listing.

• Grazing of stock can continue, as can mining operations, and the provision of infrastructure like roads and electricity and water supply systems, provided such activities do not involve clearance of areas of rainforest or other threats to World Heritage values.

• The Commonwealth Government will only be concerned with activities which are incompatible with protection of the outstanding values of the Wet Tropics. Logging of rainforest is clearly such an activity.

And in a newspaper report placed in evidence by the plaintiffs the second defendant is reported to have stated that the area of freehold land included in the nominated area was about 100 square kilometres, representing: only about 20 landholders, many of whom specifically requested their land be placed within the World Heritage boundaries, while the others had no objection to being included.

As against the hardship outlined above, if the defendants be correct, continuation of the activities to be prohibited would result in damage to the area. To some extent this damage is diminished by the fact that logging ceases in the area during the wet season which begins on 31 December, and ends on the succeeding 1 April or thereabouts. But the grant of the relief sought by the plaintiffs would, in accordance with the procedures of the World Heritage Committee, result in a delay of not less than one year in the final consideration by the committee of the nomination and may well delay the lodgment of a submission by the Commonwealth beyond 1 April because it is possible, perhaps probable, that these proceedings would not finally conclude until after that date. There is, accordingly, a risk of damage to the world heritage values of the area, assuming the defendants ultimately succeed, in the event that interlocutory injunctions were granted.

It was not possible for me on the evidence as it then stood to balance the damage apprehended by the plaintiffs against the potential damage to the world heritage values of the area which might be caused if the injunctions were granted. However, it seems that the risk of potential damage to world heritage values, assuming that they exist, is significant.

Another important factor which tells against the plaintiffs is their delay in making the application for interlocutory relief. They have known since 5 June 1987, when the Prime Minister and the then Federal Minister of State for the Environment and the Arts issued a media release that the Commonwealth "would immediately proceed towards nomination of the Wet Tropics of North-East Queensland to the World Heritage List". Yet the plaintiffs did not move for interlocutory relief until 23 December. According to an affidavit filed by the plaintiffs Mr G C Jones, the Director of the Intergovernmental Relations Branch of the Premier's Department, ascertained on 15 December 1987 that the Commonwealth had not complied with the Environment Protection Act in relation to its decision to nominate the area. but the plaintiffs do not claim that they were unaware of this circumstance before 15 December. Of course it may be that it had not occurred to anyone before that date or shortly before that date to base a claim for relief on non-compliance with that statute. Be this as it may, the plaintiffs' delay is a significant factor. Had the plaintiffs moved for relief in June or July the plaintiffs' claim, certainly to the extent to which it rested on non-compliance with the Environment Protection Act could have been determined before 23 December 1987. In this respect it is of some significance that a press release emanating from the Office of the Premier of Queensland on 23 December 1987 attributed to him the statement that if the injunction moved were successful, it would give the State at least a year's breathing space to continue to press for face-to-face talks with the Federal Government aimed at resolving the impasse. That seems to have been the object in commencing the present proceedings.

It is for the foregoing reasons that I dismissed the plaintiffs' summons for interlocutory injunctions with costs.