Queensland v The Commonwealth

High Court of Australia|1988-12-15|Before: McHugh JJ, Gaudron J

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Queensland v The Commonwealth [1989] HCA 36

ORDER Answer the questions in the stated case as follows:

Is the inclusion of the property in the World Heritage List conclusive of the validity of the Proclamation?

The plaintiffs to pay the costs of the stated case.

June 30 Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh JJ.

This is a case stated by Gaudron J. in an action in which the plaintiffs seek a declaration of invalidity of a proclamation of 15 December 1988 made in purported pursuance of s. 6(3) of the World Heritage Properties Conservation Act 1983 Cth ("the Act") in respect of a property described as "Wet Tropical Rainforests of North-East Australia". The property consists of a number of areas of land situated in the State of Queensland. Section 6(3) of the Act provides:

Where the Governor-General is satisfied that any property in respect of which a Proclamation may be made under this sub-section is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which section 9 applies. The proclamation of 15 December 1988 described the property and recited the satisfaction of the Governor-General that it "is likely to be damaged". When s. 9 of the Act is made to apply to a property, it is forbidden to do an act without ministerial consent in relation to the property where that act is prescribed. We were informed that regulations prescribing acts which may not be done in relation to the property without ministerial consent (notably forestry operations) were made on 15 December 1988. The dispute in the case is whether the property is one "in respect of which a Proclamation may be made" under s. 6(3).

The Act provides the legislative framework for giving effect to Australia's obligations under the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention"): see The Commonwealth v Tasmania (the Tasmanian Dam Case) [1] . A copy of the English text of the Convention is set out in a schedule to the Act. The Convention imposes on each State Party a duty to ensure the identification of cultural heritage and natural heritage situated on its territory (Arts 3 and 4; see also Art. 5(d)), "cultural heritage" and "natural heritage" being so defined as to require that any property coming within either definition be of "outstanding universal value": Arts 1 and 2. Each State Party is obliged to submit to the World Heritage Committee an inventory of the properties forming part of the cultural heritage and natural heritage situated in its territory which it considers suitable for inclusion in the "World Heritage List": Art. 11, par. 1. The List is to be established and kept up-to-date by the Committee on the basis of the inventories submitted by the States Parties and is to contain properties which form part of the cultural heritage or natural heritage and which the Committee "considers as having outstanding universal value in terms of such criteria as [the Committee] shall have established": Art. 11, par. 2. In addition to the duties of identifying properties forming part of the cultural heritage and natural heritage and of submitting inventories of such properties for inclusion in the World Heritage List, each State Party is under a duty to take measures for the protection, conservation, presentation and transmission to future generations of the cultural heritage and natural heritage: Arts 4 and 5. The framers of the Act have sought to restrict the application of the provisions of the Act authorizing the creation of regimes of control over properties to those properties in respect of which the Convention imposes on Australia an obligation of protection and conservation.

Section 6(2) provides that a proclamation may be made in relation to a property in a State if the property is an "identified property" (as defined by s. 3A of the Act) and one or more of the paragraphs of s. 6(2) applies or apply to it. Section 3A provides, inter alia:

(1) A reference in this Act to identified property is a reference to:

(a) any property in respect of which one or more of the following conditions is satisfied:

(i) the property is subject to an inquiry established by a law of the Commonwealth whose purpose, or one of whose purposes, is to consider whether the property forms part of the cultural heritage or natural heritage;

(ii) the property is subject to World Heritage List nomination;

(iii) the property is included in the World Heritage List provided for in paragraph 2 of Article 11 of the Convention;

(iv) the property forms part of the cultural heritage or natural heritage and is declared by the regulations to form part of the cultural heritage or natural heritage; or

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

(3) For the purposes of subparagraph (1)(a)(ii), where the Commonwealth has, under Article 11 of the Convention, submitted property 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, the property shall be taken to be subject to World Heritage List nomination from the time of its submission until the end of 7 days after the day on which the Committee informs, or first informs, Australia that it has included or decided not to include the whole or any part of the property in the list.

(4) Where any property ceases to be identified property:

(a) any Proclamation under subsection 6(3) or section 7, and any regulation for the purposes of subsection 9(1) or paragraph 10(2)(m), in relation to the property or any part of the property ceases to be in force; and

The other provisions of the Act which relate to identified properties are thus restricted in their operation to properties in the course of identification, properties being considered for inclusion in the World Heritage List or included in the World Heritage List and properties which are in fact part of the cultural heritage or natural heritage and are declared by regulation to be so. Those other provisions cannot continue to operate in respect of a property after seven days from the Committee's decision not to include it in the World Heritage List.

The Commonwealth submitted the subject property to the Committee as suitable for inclusion in the World Heritage List provided for in Art. 11, par. 2 of the Convention. After a review of the nomination and an evaluation of the property by the appropriate international agencies, the Bureau of the Committee recommended that the property be inscribed on the World Heritage List. It was regarded as having outstanding universal value in terms of the criteria established by the Committee for listing properties forming part of the natural heritage. On 7 December 1988 the Committee accepted the "inscription of the Property to [sic] the World Heritage List". When the proclamation was made, the property answered the description of par. (a)(iii) of s. 3A(1) of the Act and was (as it is) an "identified property". So much is common ground.

As stated above, an identified property in a State in relation to which a proclamation may be made must fall within one or more of the paragraphs of s. 6(2). The material paragraphs in this case are the following:

(b) the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise;

(c) 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);

(d) the protection or conservation of the property by Australia is a matter of international concern (whether or not it is also a matter of domestic concern), whether by reason that a failure by Australia to take proper measures for the protection or conservation of the property would, or would be likely to, prejudice Australia's relations with other countries or for any other reason;.

The references to "international obligation", "giving effect to a treaty" and "matter of international concern" in these paragraphs hark back to the foundations of Commonwealth legislative power under s. 51(xxix) of the Constitution to which references were made in the judgments in Koowarta v Bjelke-Petersen [2] and the Tasmanian Dam Case [3] . It is convenient, and tolerably accurate, to describe the protection or conservation of an identified property falling within any one or more of these paragraphs as an "international duty". The paragraphs thus restrict the power to proclaim a property so as to subject it to a regime of control under s. 9 to identified properties whose protection or conservation has become Australia's international duty. 1. (1982) 153 C.L.R. 168. 2. (1983) 158 C.L.R. 1.

The plaintiffs submit that the listing of the property by the Committee does not conclude the applicability of any of these paragraphs or enliven the legislative power of the Commonwealth to prescribe a regime of control for the property's protection and conservation. In the plaintiffs' submission, the power of the Commonwealth to prescribe a regime of control to protect or conserve a property does not extend to properties which are not in fact part of the "cultural heritage" or of the "natural heritage" - terms which have the same meaning in the Act as in the Convention (s. 3(1)) - and that the inclusion of the property in the World Heritage List is not conclusive of the fact that the property is, in truth, part of the natural heritage.

The plaintiffs therefore propose a negative answer to the first question in the stated case: (1) Is the inclusion of the property in the World Heritage List conclusive of the validity of the Proclamation? The stated case poses a second question: (2) If not, what is the relevant inquiry to determine the validity of the Proclamation? To this question, the plaintiffs propose alternative answers which it will be unnecessary to consider if the first question is answered affirmatively.

The validity of the proclamation depends in the first instance on whether the protection or conservation of the property is an international duty. If there be such an international duty, the requirements of s. 6(2) are satisfied, a proclamation under s. 6(3) may be made so as to apply s. 9 to the property and a regime of control under the Act may be prescribed. Given the existence of such an international duty, the prescription of such a regime is within the legislative power of the Commonwealth, being supported by s. 51(xxix) of the Constitution. The defendants submit that the inscription of the property in the World Heritage List by the Committee is sufficient and conclusive to establish that there is an international duty to protect and conserve it; the plaintiffs contest that submission, arguing that the inclusion of the property in the World Heritage List is not conclusive of its status as part of the natural heritage.

When the constitutional support for an impugned law depends upon some matter of fact, a court must decide, in determining the law's validity, whether the fact exists: Richardson v Forestry Commission [4] , and the cases there cited. Therefore, to determine the constitutional question whether the regime of control over the property imposed under the Act is supported by s. 51(xxix) of the Constitution, it is necessary to decide whether an international duty to protect or conserve the property exists. The same issue determines the corresponding statutory question whether one or more of the paragraphs in s. 6(2) is satisfied. The existence of such an international duty must be decided as a matter of fact, though this Court has no jurisdiction the exercise of which can affect the existence under international law of any purported obligation imposed on Australia. In Secretary of State for India v K. B. Sahaba [5] Lord Kingsdown said:

The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make. See also Cook v Sprigg [6] . Although municipal courts do not administer international law, they take cognizance of international law in finding facts and they interpret municipal law, so far as its terms admit, consistently with international law. Regard may therefore be had to the terms of the Convention in deciding whether an international duty of protection and conservation exists, but the existence or otherwise of the duty is not necessarily concluded by the municipal court's construction of its terms or by its opinion as to the Convention's operation. The existence of an international duty depends upon the construction which the international community would attribute to the Convention and on the operation which the international community would accord to it in particular circumstances. The municipal court must ascertain that construction and operation as best it can in order to determine the validity of a law of the Commonwealth, conscious of the difference between the inquiry and the more familiar curial function of construing and applying a municipal law. 1. (1988) 164 C.L.R. 261, at pp. 294, 341. 2. (1859) 13 Moo. P.C.C. 22, at p. 75 [15 E.R. 9, at pp. 28-29]. 3. [1899] A.C. 572, at p. 578.

Articles 3 and 4 of the Convention cast on each State Party the responsibility of identifying and delineating properties on its own territory which are part of the cultural heritage or natural heritage. To discharge this responsibility, an evaluation must be made of the qualities of properties in order to ascertain whether there are properties of "outstanding universal value" in the territory of the State Party. In one sense, the status of a particular property as one of outstanding universal value forming part of the cultural heritage or natural heritage is an objective fact, ascertainable by reference to its qualities; but, as evaluation involves matters of judgment and degree, an evaluation of the property made by competent authorities under the Convention is the best evidence of its status available to the international community. The competent authorities to make an evaluation for the purposes of the Convention are, in the first place, the State Party on whose territory a property is situated and, if the State Party submits a property in an inventory under Art. 11, par. 1, the Committee under Art. 11, par. 2. Not all properties which are part of the cultural heritage or natural heritage may be included by the Committee in the World Heritage List but, under Art. 11, par. 2, all property included in the World Heritage List must be part of the cultural heritage or natural heritage and must also meet the special criteria for listing established by the Committee. Unless the Committee is satisfied on both aspects, the property is not included in the World Heritage List. By including a property in the World Heritage List, the Committee declares its satisfaction that the property is part of the cultural heritage or natural heritage. As the procedures for evaluation adopted by the Committee are extensive, the Committee's decision to include a property in the World Heritage List assures the international community that the property has outstanding universal value as part of the cultural heritage or natural heritage. Article 12 of the Convention provides expressly what would otherwise be implied, namely, that the fact that a property has not been included in the World Heritage List does not determine that the property does not have "an outstanding universal value" for purposes other than those "resulting" from inclusion in the List. The phrase "purposes other than those resulting from inclusion" is not easily understood but it excludes the purposes which may be served by inclusion of a property in the World Heritage List. Listing entitles a State Party to call on other States Parties to give their help in the identification, protection, conservation and preservation of property under Art. 6, par. 2 and authorizes a grant by the Committee of international assistance for the protection, conservation, presentation or rehabilitation of the property under Art. 13: see Arts 20, 22 and 23. These articles are the only articles of the Convention which state the consequences of including a property in the World Heritage List or in the "List of World Heritage in Danger" (which in turn includes only properties that have been included in the World Heritage List: Art. 11, par. 4).

Although the status of a property as part of the cultural heritage or natural heritage follows from its qualities rather than from their evaluation either by the relevant State Party or by the World Heritage Committee (as Gaudron J. recognized in Richardson v Forestry Commission [7] ), a State Party which evaluates a property as part of the cultural heritage or natural heritage and submits it to the Committee for listing thereby furnishes the international community with evidence of that status. And inclusion of the property in the World Heritage List is an international acknowledgment by the Committee of that status which carries with it the benefits of help by other States Parties and the prospect of the grant of international assistance.

From the viewpoint of the international community, the submission by a State Party of a property for inclusion in the World Heritage List and inclusion of the property in the List by the Committee are the means by which the status of a property is ascertained and the duties attaching to that status are established. The State Party's submission of a property is some evidence of its status but the Committee's listing of a property is conclusive, for the benefits of listing are available only to properties having the status of being part of the cultural heritage or natural heritage. We respectfully agree with Deane J. in the Tasmanian Dam Case [8] who attributed this operation to the Convention "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." In the international community a decision by a municipal court that a property does not have that status cannot prevail over an evaluation made by the Committee which results in the property's inclusion in the World Heritage List. So long as a property is included in that List, the State Party on whose territory the property is situated and who submitted an inventory including the property as part of the cultural heritage or natural heritage is under an international duty to protect and conserve it.

The plaintiffs' submission that a municipal court can decide for itself as an issue of fact whether the Wet Tropical Rainforests of North-East Australia is part of the natural heritage does not answer the question whether there is an international duty on Australia to protect and conserve that property. The existence of Australia's international duty is determined by the inclusion of the property in the World Heritage List consequent on Australia's nomination of the property for inclusion in the List, for the listing of the property determines its status for the international community. There is no suggestion of bad faith either in the nomination or in the listing. As the inclusion of the property in the List is conclusive of its status in the eyes of the international community, it is conclusive of Australia's international duty to protect and conserve it. Its inclusion is therefore conclusive of the constitutional support for the proclamation of 15 December 1988 and of the satisfaction of pars (b), (c) and (d) of s. 6(2). It follows that the first question in the stated case should be answered: Yes. It is unnecessary to answer the second question.

The plaintiffs should pay the costs of the stated case.

The Commonwealth is a defendant to these proceedings. In December 1987 it submitted a property to the World Heritage Committee for inclusion in the World Heritage List as part of the cultural and natural heritage of Australia. The property consists of a number of areas of land in the north-east of Queensland which are described as "Wet Tropical Rainforests of North-East Australia". On 9 December 1988, the World Heritage Committee included the property on the List. On 15 December 1988, the Governor-General declared the property to be property to which s. 9 of the World Heritage Properties Conservation Act 1983 Cth applies. The declaration was made by way of proclamation under s. 6(3) of the Act. The proclamation recites the satisfaction of the Governor-General that the property is likely to be damaged. It is a prerequisite to the making of such a proclamation under s. 6(3) that the Governor-General be satisfied that the property is being or is likely to be damaged or destroyed. The proclamation replaced a similar proclamation made before the property had been listed. On 15 December 1988 the Governor-General, pursuant to s. 21(1)(a) of the Act, also made regulations prescribing certain acts in relation to the property for the purposes of s. 9(1) of the Act. That sub-section makes prescribed acts unlawful except with the consent of the Minister.

The parties ask by way of case stated whether the inclusion of the property in the World Heritage List is conclusive of the validity of the proclamation and, if not, what is the relevant inquiry to determine the validity of the proclamation.

The State of Queensland contends that the proclamation is invalid if the property does not constitute, or is not reasonably capable of being considered as constituting, cultural or natural heritage within the meaning of the Convention for the Protection of the World Cultural and Natural Heritage. Expressed in that way, the contention is somewhat elliptical, because the proclamation depends for its validity upon the World Heritage Properties Conservation Act. The questions which lie behind the contention must be whether the relevant provisions of that Act authorize the making of the proclamation and, if they do, whether they, in turn, are within constitutional power.

There is no dispute that the relevant provisions of the Act do authorize the making of the proclamation and that leaves as the only question that of the validity of those provisions. As I follow the argument, it is that if the Act operates in such a way as to preclude any challenge to the proclamation upon the basis that the property to which it relates does not in fact form part of the cultural or natural heritage of Australia, then it is in that respect beyond power and invalid. This proposition is based upon the notion that, if the property is not part of the cultural or natural heritage, the provisions in their application to that property are not to be seen as implementing the Convention under s. 51(xxix) (the external affairs power) of the Constitution. It is common ground that that is the only relevant source of legislative power.

It is necessary to go in the first place to the terms of the Convention. In Arts 1 and 2 it defines respectively cultural and natural heritage. Since the property, if it falls within the definition at all, falls almost entirely under the second head it is necessary only to refer to that part of the definition. "Natural heritage" is defined as:

natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.

The Convention goes on to impose upon each State Party a number of primary obligations amongst which are the obligations to identify and protect cultural and natural heritage upon its territory. This it does in Art. 4, which is central to the scheme of the Convention. It is as follows:

Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and cooperation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5 sets out various measures which each State Party is to endeavour to take, in so far as possible, and as appropriate for each country, for the protection, conservation and presentation of its cultural and natural heritage. Article 6, after expressing respect for the sovereignty of the States on whose territory cultural and natural heritage is situated and after recognizing property rights, goes on to record that the State Parties recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate. It also imposes an obligation upon State Parties to give help in the identification, protection, conservation and preservation of cultural and natural heritage if requested to do so by the States upon whose territory it is situated. The same article also imposes an obligation upon each State Party not to take any deliberate measures which might damage cultural and natural heritage situated on the territory of other State Parties.

Articles 8 to 10 provide for a World Heritage Committee. Under Art. 11 each State Party is to submit to the World Heritage Committee, so far as possible, an inventory of property forming part of the cultural and natural heritage situated on its territory and suitable for inclusion in the World Heritage List, which the Committee is to establish, maintain and publish. The inventory is not to be considered exhaustive.

Article 11 also provides that the World Heritage List is to comprise "properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which [the Committee] considers as having outstanding universal value in terms of such criteria as it shall have established". The Committee is also to establish a "List of World Heritage in Danger".

The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists.

The purposes resulting from inclusion in the two lists appear from later articles. A State Party to the Convention may make requests to the World Heritage Committee for international assistance for property forming part of its cultural or natural heritage: Art. 19. Assistance may be given in a variety of ways including expert help, the supply of equipment, and loans or grants of money from a World Heritage Fund: Art. 22. But, save for a minor exception, assistance may only be provided for property which "the World Heritage Committee has decided, or may decide, to enter in one of the lists mentioned in paragraphs 2 and 4 of Article 11": Art. 20.

What emerges from the terms of the Convention with clarity is that it is for a State Party to identify for itself the cultural and natural heritage on its territory. It is not a matter for the World Heritage Committee. The obligation of a State Party to protect, conserve, present and transmit to future generations the cultural and natural heritage situated on its territory does not flow from any listing upon the World Heritage List. It flows from the identification by the State Party of its cultural or natural heritage, an identification which the State Party is under a duty to make. Once identified, even if there is a refusal to enter such a property on the World Heritage List, it does not cease to be part of the cultural or natural heritage and the obligations imposed by the Convention in relation to it remain in force. Whilst the inclusion of a property in the World Heritage List may, in a practical sense, confirm the appropriateness of the identification of that property by a State Party as part of its cultural or natural heritage, it leads to no consequence under the Convention other than eligibility for international assistance.

A proclamation may only be made under s. 6 of the World Heritage Properties Conservation Act in relation to identified property. "Identified property" is defined in s. 3A(1) which provides:

A reference in this Act to identified property is a reference to:

(a) any property in respect of which one or more of the following conditions is satisfied:

(ii) the property is subject to World Heritage List nomination;

(iii) the property is included in the World Heritage List provided for in paragraph 2 of Article 11 of the Convention;

(iv) the property forms part of the cultural heritage or natural heritage and is declared by the regulations to form part of the cultural heritage or natural heritage;

The terms "cultural heritage" and "natural heritage" have the same meaning in the Act as they do in the Convention: s. 3(1). There is no dispute in this case that the property in question is, and was at the time the proclamation was made, identified property within the meaning of s. 3A(1)(a)(iii).

Section 6 of the Act provides in sub-ss. (2) and (3) as follows:

(2) A Proclamation may also be made under sub-section (3) in relation to identified property that is in a State and is property to which one or more of the following paragraphs applies or apply:

(a) The Commonwealth has, pursuant to a request by the State, submitted to the World Heritage Committee under Article 11 of the Convention that the property is suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article, whether the request by the State was made before or after the commencement of this Act and whether or not the property was identified property at the time when the request was made;

(b) the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise;

(e) the property is part of the heritage distinctive of the Australian nation -

(i) by reason of its aesthetic, historic, scientific or social significance; or

(ii) by reason of its international or national renown,

and, by reason of the lack or inadequacy of any other available means for its protection or conservation, it is peculiarly appropriate that measures for the protection or conservation of the property be taken by the Parliament and Government of the Commonwealth as the national parliament and government of Australia.

(3) Where the Governor-General is satisfied that any property in respect of which a Proclamation may be made under this sub-section is being or is likely to be damaged or destroyed, he may, by Proclamation, declare that property to be property to which section 9 applies.

The validity of the provisions of the World Heritage Properties Conservation Act is dependent upon those provisions having been passed in implementation of the Convention. I have elsewhere expressed my inability to accept the correctness of the view that the implementation of an international treaty falls within the external affairs power notwithstanding that the subject matter of the treaty is of an entirely domestic nature, but, for the reasons which I gave in Richardson v Forestry Commission [9] , I accept the authority of the Tasmanian Dam Case [10] in the absence of any re-opening of that decision. As a consequence, the provisions of the Act must be regarded as falling within the ambit of the external affairs power if they are fulfilling the terms of the Convention. No argument was advanced that the Act does not perform this function, other than the contention to which I have already referred. Nor was it argued, apart from that contention, that the proclamation was not made in compliance with the provisions of s. 6(2) and (3) of the Act.

(1988) 164 C.L.R. 261, at pp. 320-322. 2. (1983) 158 C.L.R. 1.

In my view the World Heritage Properties Conservation Act has the effect of precluding any challenge to the proclamation upon the basis that the property to which it relates does not in fact form part of the cultural or natural heritage of Australia. In so doing it is in accordance with the terms of the Convention. As I have said, it is basic to the Convention that the identification of cultural or natural heritage upon its territory is a matter for each State Party. The Convention does not make the decisions of a State Party in this respect examinable by the World Heritage Committee or in any other way. Indeed, the Convention exhibits an evident concern to avoid any encroachment upon the sovereign right of State Parties to make their own decisions. In accordance with this concern the Convention expressly provides that the failure of a State Party to obtain the listing of a property upon the World Heritage List does not affect the status of the property as part of its cultural or natural heritage.

It is, of course, a prerequisite to the submission of a property by a State Party for inclusion upon the World Heritage List that the State Party should have identified the property as part of its cultural or natural heritage. Once property has been identified by the Commonwealth as part of the cultural or natural heritage of Australia it is under an international obligation to protect it. That obligation exists regardless of any further assessment of the status of the property.

The Act authorizes the making of a proclamation which is not challengeable upon the basis that the property to which it relates does not form part of the cultural or natural heritage. That is the result of the way in which s. 3A (with the possible exception of s. 3A(1)(a)(iv)) defines identified property so as to impose no requirement that it should in fact be part of the cultural or natural heritage. That definition and its operation in conjunction with s. 6 are in accordance with the Convention and, in my view, make valid provision for the proclamation in question.

Once a property has been identified as part of the cultural or natural heritage, then for the purpose of s. 6(2)(b) of the Act there is an international obligation requiring its protection or conservation and for the purpose of s. 6(2)(c) the protection or conservation of the property will be necessary to give effect to the Convention. Other paragraphs of s. 6(2) may also apply. If the property is an identified property within the meaning of s. 3A (which, as I have said, is not made dependent upon its being, as a matter of objective fact, part of the cultural or natural heritage) then the only remaining question concerning the validity of the proclamation is whether the Governor-General is satisfied that the property is being or is likely to be damaged or destroyed. There is no question about that in this case.

The Commonwealth in its argument sought to place emphasis upon the considered nature of the decision of the World Heritage Committee to list the property in question on the World Heritage List and went to great lengths to establish the care which that body takes with submissions for listing. That, however, is of no consequence in the present context. The operation of s. 3A is not made dependent in any way upon the fact of the property being part of the cultural or natural heritage. The listing of the property is a fact which may bring into operation or continue in operation the provisions of s. 3A, and listing may, of course, only take place under the Convention where the relevant property has first been identified. Identification, however, concludes the question whether the property forms part of the cultural or natural heritage.

I fully appreciate why there may have been a certain reticence in putting a submission which asserts the complete absence of examinability of a bona fide determination by the Commonwealth that a property constitutes part of the cultural or natural heritage of Australia. Considerable areas of land otherwise not subject to Commonwealth control may be, and have already been, involved in such determinations. If, having regard to the federal division of power under the Constitution, the result is startling, I can only comment, as I did in Richardson v Forestry Commission [11] , that the way in which the Convention is framed lays the foundation for legislation leading to that result. The validity of the legislation is a consequence of the expansive view of the external affairs power taken in the Tasmanian Dam Case.

The first question asked by the case stated should be answered as follows: the inclusion of a property in the World Heritage List does not determine the validity of the proclamation save that it may bring into operation or continue in operation the provisions of s. 3A of the Act. I decline to answer the second question because it is, at least in part, hypothetical in form. However, it will be apparent from these reasons that in my view the validity of the proclamation is determined by its compliance with the provisions of the Act. The Act in turn is supported by s. 51(xxix) of the Constitution.

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties

Cited By (3)