Richardson v Forestry Commission

When all these various matters are taken into account, it is not possible, within the constraints imposed by the Tasmanian Dam Case, to uphold the second submission of the defendants. The protective provisions fall within the range of the discretion conceded to the Parliament in carrying out the obligation which the Convention imposes upon it.

Finally, the defendants submit that the provisions of the Act, or alternatively the provisions of Pt III, are invalid because they interfere with, curtail or impair the legislative and executive functions of the State of Tasmania and the prerogative of the Crown in right of Tasmania in relation to its lands. Reliance is placed upon Melbourne Corporation v. The Commonwealth [43] and Queensland Electricity Commission v. The Commonwealth [44] . In the course of argument, counsel for the defendants pressed the argument on the basis that the Act discriminated against Tasmania. But, however the argument is put, in my opinion it cannot succeed. It cannot be said that the Act is discriminatory, in the sense that it singles out Tasmania. The protected area, in relation to which the object of the Act is to identify the existence of world heritage areas, if any, happens to be situated within Tasmania. The Act is not directed at Tasmania in any other sense or for any other reason. If the argument is put on the basis that the Act interferes with the legislative and executive functions of a State, that in itself is not sufficient to attract the limitation on Commonwealth legislative power that is to be implied from the Constitution. A similar argument was advanced and rejected in the Tasmanian Dam Case. There, Mason J. said [45] :

To fall foul of the prohibition, in so far as it relates to the capacity of a State to govern, it is not enough that Commonwealth law adversely affects the State in the exercise of some governmental function as, for instance, by affecting the State in the exercise of a prerogative. Instead, it must emerge that there is a substantial interference with the State's capacity to govern, an interference which will threaten or endanger the continued functioning of the State as an essential constituent element in the federal system. See also per Brennan J. [46] ; and Deane J. [47] A little later in his judgment, Mason J. mentioned an aspect of the matter which may be thought to have some relevance to the present case. His Honour said [48] : It is perhaps possible that in some exceptional situations if the area of land affected by Commonwealth prohibitions similar to those imposed by reg 5 forms a very large proportion of the State, the imposition of the prohibitions would attract the Melbourne Corporation principle. But this is certainly not the case here, where the Regulations affect 14,125 ha. only. As I have said, the Commonwealth's assertion of authority affects some 283,300 ha., amounting to about 4.5 per cent of the entire territory of Tasmania. However, despite the size of the affected area, having regard to the nature of the area, the limited scope that it offers for the exercise of ordinary governmental functions, the limited duration of Commonwealth control and the procedure for the early exclusion of parts of the protected area from that control, there is no warrant for invoking an implied limitation upon the exercise of a legislative power expressly granted to the Commonwealth by s. 51 of the Constitution. 1. (1947) 74 C.L.R. 31. 2. (1985) 159 C.L.R. 192. 3. (1983) 158 C.L.R., at p. 139. 4. (1983) 158 C.L.R., at pp. 208-216. 5. (1983) 158 C.L.R., at pp. 280-281. 6. (1983) 158 C.L.R., at p. 141.

Before concluding, I should refer to another argument advanced by counsel for the Attorney-General for Queensland. Counsel drew attention to the reference in the definition of qualifying area in s. 3 to "an area that contributes to the integrity or values of a world heritage area". He submitted that because the Commission is required merely to report on whether there are any qualifying areas within the protected area without distinguishing between those parts which constitute a world heritage area and those parts which merely contribute to the integrity or values of a world heritage area, it cannot be said that the Act is a faithful pursuit of the international obligation to identify a world heritage area. A reading of the Act does not make clear the legislative purpose leading to the inclusion of the reference to areas contributing to the integrity or values of a world heritage area in the definition of qualifying area. The Convention does not use the phrase. It may be wondered why an area that contributes to the integrity or values of a world heritage area is not so intimately connected to the latter as to form part of it. However, such an approach might encounter difficulty with the specific wording of the relevant part of the definition of "natural heritage" in the Convention which refers to "precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty": Art. 2. Alternatively, it is conceivable that a duty to protect an identified world heritage area would attract a power to extend the protection to an area which contributes to the integrity or values of the former; however, that proposition cannot avail the Commonwealth here, because there is as yet no identified world heritage area within the protected area. Furthermore, the Act does not require the Commission to distinguish between the two kinds of area. Nevertheless, despite the intriguing questions that the use of the phrase is capable of raising, I do not think that its inclusion has the effect of placing the Act beyond power. It must be remembered that it is not the task of the Commission itself to identify and delineate the world heritage area that may be situated within the protected area. Its task is to produce a report which the Parliament anticipates will assist the Commonwealth in discharging its obligation to "endeavour, in so far as possible, and as appropriate to take the appropriate measures necessary for the identification of [the] heritage" (Art. 5(d)) that may be present within the protected area. In the same way as the task imposed upon the Commission by s. 8 to report on matters relating to the exploitation of forestry resources elsewhere in Tasmania is calculated to assist the Commonwealth in deciding what is appropriate and possible in the matter of identifying and protecting additional areas of world heritage situated within the protected area, it is not unreasonable to suppose that the report of the Commission in relation to areas within the protected area that contribute to the integrity or values of a world heritage area therein will assist the Commonwealth in its appreciation of the heritage potential of the area. It is sufficient for validity that the appointment of the Commission with its terms of reference is a measure that will facilitate governmental decisions respecting Australia's obligations under the Convention, in particular the obligation to identify and delineate the world heritage, if any, within the protected area in so far as it is possible and appropriate to do so.

It is now more than half a century since this Court recognised, in R. v. Burgess; Ex parte Henry [49] , that the grant of legislative power contained in s. 51(xxix) of the Constitution must be given its full effect and is not to be limited by reference to preconceptions of the extent of the residue of legislative powers retained by the States or by the notion that to give the words comprising that grant their full effect would somehow imperil the constitutional balance between the Commonwealth and the States. In that regard, Burgess effectively represented no more than the application of the compelling reasoning of the Engineers' Case [50] . Indeed, it would have been to turn logic on its head to define the content of a specific grant of Commonwealth legislative power by reference to a counterpoint measure which could only be identified after the full scope of that Commonwealth power had been determined or to see acceptance of the effect of the actual words of the Constitution conferring legislative power as imperilling an overall constitutional balance which could only be struck after full account had been taken of those same words: see Burgess [51] .

1. (1936) 55 C.L.R. 608. 2. (1920) 28 C.L.R. 129. 3. (1936) 55 C.L.R., at pp. 636-637, 680.

That is not to say that the specific grants of Commonwealth legislative power are to be construed as in a vacuum or without regard to their context in the constitution of a federation. In particular, that constitutional context precludes the approach that the Parliament of the Commonwealth itself can foreclose, by express assertion either of statutory character or of legislative intention or purpose, the question whether a proposed law is or is not one with respect to a designated head of Commonwealth legislative power. It is to this Court that the people have entrusted the ultimate responsibility of determining whether a law which the Parliament has purported to impose comes within the scope of the legislative powers which they have conferred upon the Parliament. The settled judicial process by which the Court must discharge that responsibility is that of characterization of the impugned law by reference to its substantive operation.

Ordinarily, that process of characterization will involve no more than consideration of the law's objective legal operation without regard to any ulterior legislative purpose or object. There are, however, circumstances in which characterization of a law requires that regard be paid to any such purpose or object. The obvious example of such circumstances is the case where the direct legal operation of a law does not of itself suffice to characterize it as a law with respect to a subject-matter of Commonwealth legislative power but some ulterior purpose or object which the law was enacted to serve may suffice to warrant characterization of it as a law with respect to such a subject-matter. Such characterization by reference to underlying purpose or object will only be possible if the designated legislative power itself "involves the notion of purpose or object": see per Dixon J. Stenhouse v. Coleman [52] . The "naval and military defence" of the Commonwealth and the States (Constitution, s. 51(vi)) is one of the main subject-matters of Commonwealth legislative power which fall within that category. External affairs is another: see the Tasmanian Dam Case [53] . The primary purpose or object of the one is the conduct, advancement and discharge of the nation's naval and military defence and the power extends to authorize the enactment of some purely civilian measures for the pursuit of that purpose or object. The primary purpose or object of the other is the conduct of the nation's international affairs, including the advancement of its international relations and interests and the discharge of its international obligations, and the power extends to authorize the enactment of some purely domestic measures for the pursuit of that purpose or object. As Latham C.J. commented in Burgess [54] :

The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves not only the defence of Australia in time of war but also the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane.

The Commonwealth Parliament was given power to legislate to give effect to international obligations binding the Commonwealth or to protect national rights internationally obtained by the Commonwealth whenever legislation was necessary or deemed to be desirable for this purpose.

Thus, the external affairs power encompasses the purposive power to carry out treaties by domestic legislation: "all powers necessary or proper for performing obligations towards foreign countries, arising under treaties": cf. British North America Act 1867, s. 132 and per Latham C.J., Burgess [55] . It authorizes not only domestic laws enacted for the purpose of "a carrying out" of the external obligation but also laws providing for "anything reasonably incidental to the execution of [that] purpose" per Dixon J. [56] . In Burgess [57] Dixon J., having commented that the view that the external affairs power conferred legislative authority to implement an international agreement relating "only to matters otherwise only" of internal concern "seems" an extreme one, deferred a consideration of the validity of that view "until questions arise under" such agreements. No such reservation was made by Latham C.J., Evatt and McTiernan JJ. however and Burgess is plain authority for the proposition that the legislative power includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers regardless of their subject-matter. The power also authorizes domestic laws "designed to promote friendly relations with all or any of the nations" (per Evatt and McTiernan JJ. [58] ) or to achieve some other international purpose or object. 1. (1944) 69 C.L.R. 457, at p. 471. 2. (1983) 158 C.L.R. 1, at pp. 259-261. 3. (1936) 55 C.L.R., at p. 644. 4. (1936) 55 C.L.R., at pp. 637-643. 5. (1936) 55 C.L.R., at p. 674. 6. (1936) 55 C.L.R., at p. 669. 7. (1936) 55 C.L.R., at p. 684.

When the direct operation of a law is with respect to an external or international subject-matter, ordinary processes of characterization can be applied and the nature of the law as a law with respect to external affairs will be disclosed by its bare legal operation. A law authorizing the establishment of an overseas embassy and a law ratifying or approving an international treaty or the constitution of an international organization (see, e.g., s. 3 of Acts Nos. 79, 80, 81, 82 and 83 of 1947 and s. 2 of Act No. 24 of 1947) are examples of a law with such direct operation. On the other hand, a law whose direct operation is solely with respect to a domestic subject-matter which is not of itself within the ambit of external affairs may, in some circumstances, properly be characterized as a law with respect to external affairs for the purposes of s. 51(xxix) of the Constitution by reference to some identified purpose or object which its operation is designed to advance or achieve. The mere fact that there can be discerned some purpose or object, being a legitimate subject-matter of external affairs, which the impugned law is designed to advance or achieve will not, of itself, suffice for such characterization. Such a purpose or object must pervade and explain the substantive operation of the impugned law to an extent that warrants characterization of the law as a law with respect to external affairs notwithstanding the fact that its bare legal operation is with respect to a domestic or completely internal subject-matter. At a later stage of this judgment, I examine this requirement in some detail.

There is inevitably a degree of tension between the legislative function of the Parliament and the judicial function of the court in cases where legislative competence is claimed by reference to such an underlying purpose or object rather than by reference to the bare operation of the particular law. It is for the Parliament and not for the court to decide what are the appropriate legislative provisions to achieve a desired result. On the other hand, nowhere is the role of the court as the ultimate custodian of the provisions of the Constitution more critical than in a case where challenged legislation is claimed to be within legislative competence on the ground that, notwithstanding that it does not directly operate with respect to a designated subject-matter of legislative power, its underlying purpose or object gives it the character of a law with respect to external affairs (s. 51(xxix)) or defence: s. 51(vi). In the context of the scope of contemporary international relations and of the nature of modern warfare, there are few domestic laws which could not arguably be seen as capable of affecting or bearing upon the country's external affairs or defence. It would, however, be to ignore the constitutional context of the specific grants of legislative power contained in pars. (xxix) and (vi) of s. 51 to hold that the fact that the economic, social and moral well-being of the Commonwealth and its citizens is conducive to international standing and prestige, to the domestic observance of fundamental human rights and other standards or objectives enshrined in international conventions and to an adequate defence establishment or capacity, means that the combined effect of those two sub-sections is effectively to confer general legislative powers on the Parliament with respect to the economic, social and moral well-being of the Commonwealth and its citizens, subject only to the proviso that it must be possible to identify, in the case of an impugned law, a relevant purpose of advancing or serving the nation's external affairs or defence. More particularly, and closer to the present case, it would be to ignore the constitutional context of s. 51(xxix) to hold that the mere legislative or administrative assertion of the existence of an underlying purpose of ensuring local observance of such international standards or objectives would suffice to impart the character of a law with respect to external affairs to the legislative imposition of a Commonwealth regime of complete control or compulsory inactivity upon the whole or a significant part of a particular State.

In the Tasmanian Dam Case [59] , I sought to explain what I see as the appropriate test for determining whether a law whose direct operation is upon a domestic subject-matter can properly be characterized as a law with respect to external affairs by reason of some ulterior legislative purpose or object which it was enacted to advance or achieve. I did so in terms which were largely borrowed from the cases to which I there referred. In the following paragraph, I venture to repeat, in a slightly expanded form, what I there wrote.

First, there must be identified a purpose or object, itself a legitimate subject of external affairs: eg the carrying into effect of a treaty, the performance of an international obligation or the obtaining of an international benefit. The reference to such a purpose or object is not, of course, to the subjective motives or purposes of the various members of the Parliament which enacted the law. It is a reference to the purpose or object of the law itself - that which it can be seen to be designed to serve or achieve. As Dixon J. commented in Stenhouse v. Coleman [6] : "No doubt it is possible that the "purpose" here may be another example of what Lord Sumner described as "one of those so-called intentions which the law imputes; it is the legal construction put on something done in fact": Blott's Case [7] ." Dixon J. went on to note that "apparently the purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth". Secondly, to repeat what has been said above, that purpose or object must pervade and explain the operation of the law to an extent that warrants the overall characterization of the law as one with respect to external affairs; it "must be seen, with "reasonable clearness", upon consideration of its operation, to be "really referable" to and explicable by the purpose or object which is said to provide its character": the Tasmanian Dam Case [8] . While the question of what is the appropriate method of achieving a desired result is a matter for the Parliament and not for the court, the operation of a law will not properly be seen as explained by the designated purpose or object unless it appears that that operation is capable of being reasonably considered to be appropriate and adapted to achieve it. Such a law will not be capable of being so seen unless it appears that there is "reasonable proportionality" between that purpose or object and the means which the law adopts to pursue it. The reason for such a requirement was explained, again by Dixon J., in Burgess [9] when his Honour commented that the nature of the external affairs power "necessitates a faithful pursuit of the purpose before it can support the imposition upon citizens of duties and disabilities which otherwise would be outside the power of the Commonwealth". His Honour added [10] that "under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject-matter to which it relates".

1. (1944) 69 C.L.R., at p. 471. 2. [1921] 2 A.C. 171, at p. 218. 3. (1983) 158 C.L.R., at p. 260. 4. (1936) 55 C.L.R., at p. 674. 5. (1936) 55 C.L.R., at pp. 674-675.

It should be mentioned that, in the above formulation, I have stated the requirement relating to the impugned law being "appropriate and adapted" in less stringent terms (from the point of view of the Commonwealth) than those used in some previous judgments in this Court. In particular, in Airlines of New South Wales Pty. Ltd. v. New South Wales [No. 2] [11] , Barwick C.J. expressed the view that "it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to" the particular "end". In my view, it is not necessary for this Court to be persuaded that the particular provisions are, in fact, appropriate and adapted to the designated purpose or object. That is a matter for the Parliament. Obviously, the relevant requirement will be satisfied if the Court is so persuaded. As I have indicated however, it will, in my view, suffice if it appears to the Court that the relevant provisions are capable of being reasonably considered to be so appropriate and adapted: cf. per Starke J., Burgess [12] . In a case where the direct operation of a law is with respect to purely domestic matters, it is, however, for the Commonwealth or those who would sustain the validity of the law by reference to ulterior object or purpose to point to material which makes it possible to say that the law can be characterized as a law with respect to external affairs by reason of that underlying purpose or object.

1. (1965) 113 C.L.R. 54, at p. 86. 2. (1936) 55 C.L.R., at pp. 659-660.

The first question reserved for the decision of this Full Court in the present case raises for consideration the validity of the provisions of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Cth ("the Act") which was purportedly enacted by the Parliament of the Commonwealth in reliance upon the external affairs power. The contextual facts, the relevant statutory provisions and the critical clauses of the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") are set out or summarized in the judgments which precede this. Except to the extent necessary for meaningful discussion, I shall avoid repetition of them.

The provisions of the Act, read in the context of the material before the Court, disclose that a purpose or object which the Act as a whole is designed to serve is the identification, delineation and protection of actual and potential world heritage areas and the procurement of information and advice with respect to that identification and delineation and with respect to related questions, such as the relationship between world heritage areas and adjoining areas and the availability of alternative resources. Those are all matters involved in, or conducive to, the identification, discharge and pursuit of the international obligations, aspirations and objectives which Australia undertook or to which it subscribed by becoming a party to the Convention. That being so, an underlying purpose or object which the Act manifests is a legitimate subject of external affairs, namely, the discharge and pursuit of obligations, aspirations and objectives imposed or recognized and accepted by an international treaty to which Australia is a party. It will, on occasion, be convenient to refer to that purpose or object as "the international purpose or object".

It can be said at once that the provisions of Pt II of the Act, which are concerned with the actual establishment and conduct of the Commission of Inquiry into the Lemonthyme and Southern Forests areas (the protected areas) and which are plainly severable from the provisions of Pt III (see below), are plainly within the legislative competence of the Parliament to make laws with respect to external affairs. There is much to be said for the view that the bare legal operation of those provisions is, in the context of the nature of the subject-matters entrusted to the Commission for investigation and advice, such as to warrant their characterization as a law with respect to external affairs without there being any need to take account of underlying purpose or object. However, it is unnecessary to pursue that question since, even if it be necessary to resort to the international purpose or object, it is apparent that that purpose or object, being itself a legitimate subject of external affairs, pervades and explains those particular provisions of the Act in a way that would, in any event, warrant their characterization as a law with respect to external affairs. Plainly, those particular provisions are capable of being reasonably considered to be appropriate and adapted to achieve that underlying purpose or object. In that regard, the wide extent of the areas in respect of which the Commission is charged to inquire and advise is unimportant. Indeed, it would not affect the validity of the provisions of the Act actually establishing the Commission and regulating its conduct if the Commission had been entrusted with obtaining information of the relevant type and formulating advice of the kind which it is required to provide in respect of the whole land area of the Commonwealth. It follows that, even if it be assumed that the direct operation of those particular provisions is in relation to domestic matters, they are properly to be characterized as a law with respect to external affairs and are accordingly within the legislative power conferred upon the Parliament by s. 51(xxix).

Once one passes from the provisions of the Act concerned with the actual establishment and conduct of the Commission (i.e. Pt II) to the provisions of the Act concerned with the interim preservation and protection of the protected areas (i.e. Pt III), one passes from provisions aimed at obtaining information and advice to provisions establishing a legislative regime which, to a significant degree, prevents or freezes the development and inhibits the use of the lands to which it applies. As has been said, the protection of actual and potential world heritage areas is a purpose or object to which Australia has subscribed by becoming a party to the Convention. It is, however, far from self-evident that a law establishing a conservation regime of direct Commonwealth control, in relation to domestic matters which are not of themselves subjects of Commonwealth legislative or administrative powers, over a large area of State territory containing no listed or nominated world heritage areas, can properly be characterized, for the purposes of s. 51(xxix), as a law with respect to external affairs simply because the affected territory is adjacent to World Heritage areas or is said to include some parts which could be considered as natural or cultural heritage appropriate for nomination for World Heritage listing. Even if it be accepted that the international purpose or object underlies the provisions of the Act imposing the restrictive Commonwealth regime, those provisions will, as has been seen, bear the character of a law with respect to external affairs for the purposes of s. 51(xxix) only if it appears that their domestic operation to impose and provide for the enforcement of restrictions and restraints in relation to the protected areas is reasonably capable of being seen as appropriate and adapted to the genuine pursuit of that purpose or object. It is the question whether it appears that the domestic operation of those provisions is reasonably capable of being so seen which lies at the heart of the present case. I turn to a consideration of it.

Section 16 of the Act would, if valid, effectively prohibit logging operations within the protected areas for a period which might persist for 12 months from the time of the establishment of the Commission. The prohibition would not be confined to felling trees in the course of forestry operations. It would extend to removal of any part of a tree in the course of such operations, even one felled before the enactment of the Act. More important, the protective regime which s. 16 of the Act purports to establish would involve much more than a prohibition of logging operations. As has been said, it would represent an effective prohibition or freeze of any development be it, e.g., for minor tourist purposes or even for protective purposes (eg the building or maintenance of fire-breaks), within the areas to which it applied. No vehicular track, however narrow, temporary or short or for whatever purpose, could be constructed: s. 16(1)(b). No excavation work, however small, could be made: s. 16(1)(c). No other act which "is capable of" adversely affecting the protected areas and which is "prescribed for the purposes of this paragraph" could be done even though in actual fact it would, on balance, benefit the area: s. 16(1)(d). The imposed regime would go even further and encompass the imposition of an obligation to take positive action: the owner or occupier of any part of the protected areas would be obliged to take reasonable steps to prevent the doing within that part of any of the prohibited acts. It is true that the prohibition might be lifted by the Minister with respect to particular acts or classes of acts or persons or classes of persons. The fact that a prohibition upon acts in a remote area of Tasmania will be lifted if a discretionary permission can be obtained from a Commonwealth Government Minister does not, however, change its nature as a prohibition either in regard to its primary operation or in so far as the citizen who remains subject to it is concerned: cf. Swan Hill Corporation v. Bradbury [13] ; Hughes and Vale Pty. Ltd. v. New South Wales [14] . Nor, in my view, does the fact that a refusal to grant such a discretionary permission may, if the person concerned has the necessary knowledge, means and determination, be reviewed pursuant to the Administrative Appeals Tribunal Act 1975 Cth effect such a change. Moreover, any such power to grant permission either initially or on review is strangely confined in that the Minister, "[i]n determining whether or not to give a consent" (emphasis added), is constrained to have regard " only " to Australia's obligations under the Convention: s. 18(1). If that precludes the Minister from having regard to considerations such as the hardship suffered by the particular applicant for consent, the power to relax the prohibition would border upon the illusory. It is, however, unnecessary to pursue that point.

1. (1937) 56 C.L.R. 746, esp. at p. 762. 2. (1954) 93 C.L.R. 1, at p. 26.

There could be circumstances in which the establishment, on an interim or permanent basis, of a legislative regime of the type established by Pt III of the Act could be justified as capable of being reasonably considered to be appropriate and adapted to achieving the discharge of Australia's obligations under the Convention and the pursuit of international aspirations and objectives in relation to the Convention. In the present case, however, no real attempt has been made to demonstrate that the overall protective regime established by Pt III is in fact capable of being reasonably considered to be so appropriate and adapted. There is nothing at all to suggest that there exists an identified threat of anything other than logging operations to any part of the protected areas. Indeed, there has been no effort to identify to the Court the activities of those persons, other than forestry operators, whose use of land or earning of livelihood might be interfered with or precluded by the operation of the protective regime. The Court was informed that there are areas of freehold land owned by individuals within the protected areas. Insignificant though those areas may be in the overall perspective from Canberra, their owners, few though they may be, are citizens whose lives and property are beyond the reach of the Parliament except to the extent authorized by a relevant grant of Commonwealth legislative power. Yet there was no effort by the Commonwealth to justify the application of the protective regime, with all its stringency, to those privately owned areas of freehold land. Indeed, at times in the argument, it seemed that the Commonwealth had not ascertained what the practical impact of the imposition of the restrictive regime would be on the lives and livelihood of those who own or use land within the protected areas for other than logging purposes. Be that as it may, the blanket prima facie prohibition throughout the whole of the protected areas of the making of even a minor temporary vehicular track or small excavation works remains without plausible justification. If the protected areas were of small dimensions, the above considerations may be less than compelling. The Court was informed, however, that the protected areas represent some 4.5 per cent of the whole land surface of the State of Tasmania. If it could be said that the Commonwealth had had no opportunity to acquire information about any activities, other than the confined (in terms of area) forestry activities, within the protected areas, that would at least provide some explanation of the lack of justification or information. That has not, however, been suggested and the history of past negotiations between the Commonwealth and Tasmania would not lead one readily to assume or to accept the absence of any such opportunity on the part of the Commonwealth.

The fact that the material before the Court is unsatisfactory and incomplete cannot absolve the Court of its constitutional responsibility to decide the question whether, to repeat Dixon J.'s words, "the imposition upon citizens of duties and disabilities which otherwise would be outside the power of the Commonwealth" can be justified by resort to the external affairs power. When that question is fairly faced, the material before the Court leads inevitably to the conclusion that there has been no real effort made to confine the prohibitions of the overall protective regime, with the overriding of the ordinary rights of citizens and the ordinary jurisdiction of the State of Tasmania which it would involve, to activities which it might reasonably be thought represented some real actual or potential threat to what might properly be seen, for the purposes of the Convention, as natural or cultural heritage. It is true that the Act contains provisions designed to enable parts which definitely involve no natural or cultural heritage to be subsequently excluded from the protected areas. However, those provisions raise as many questions about the possible justification of the extent of the protected areas as they answer. It is also true that, as has been said, the protective regime will, unless the Act is amended, not last for more than twelve months and that, as has been seen, there is provision enabling the Minister to permit otherwise prohibited acts. However, neither that limited maximum period nor the possibility of such consent changes the essential character of the overall protective regime. On the material before the Court, it is impossible to say that it appears that there is reasonable proportionality between the provisions of Pt III of the Act, when they are viewed as a whole, imposing that overall restrictive regime and the designated intention, purpose or object. That being so, those provisions are not, when so viewed, capable of being reasonably considered to be appropriate and adapted to achieve the purpose or object which is said to provide them with the character of a law with respect to external affairs. Accordingly, the provisions of Pt III of the Act cannot, taken collectively, be sustained by s. 51(xxix) of the Constitution. The question arises whether those provisions of Pt III are all invalid or whether some of them are severable and either valid, when viewed independently, or susceptible of being read down to validity. The starting point of a consideration of that question must lie in an examination of the content of, and the interrelation between, the various paragraphs of s. 16(1) which impose the relevant primary prohibitions.

It should be apparent, from what has been said above, that I consider that the blanket proscription of the construction or establishment, without prior ministerial consent, of any road or vehicular track within any part of the protected areas (s. 16(1)(b)) is invalid. The same can be said of the proscription of the carrying out, in any part of the protected areas, of any excavation works (s. 16(1)(c)) and of the proscription of the doing of any act at all which may be prescribed by administrative action (s. 24(a)) and is capable of adversely affecting the protected areas: s. 16(1)(d). None of those proscriptions can properly be read down to validity. They are, however, plainly distinct from that contained in par. (a) of s. 16(1) which can be severed from them. That paragraph makes it unlawful "for the purposes of, or in the course of carrying out, forestry operations, to kill, cut down or damage a tree in, or remove a tree or a part of a tree from, the protected area". As I have indicated the prohibition of removal of a tree from any part of the protected areas would extend to preclude the removal of any timber regardless of when the trees from which it was extracted were felled. There is nothing in the material in evidence which appears to be directed to demonstrating, or even suggesting, that such a prohibition could reasonably be seen as necessary to enable effective enforcement of the prohibition upon felling. To the contrary, the evidence is to the effect that there were quantities of felled timber within the protected areas (in coupe LA45) which all parties agreed should be permitted to be removed. Regardless of whether that removal was to be pursuant to formal consent or informal arrangement, the overall evidence does not support the existence of the requisite element of proportionality between a general prima facie proscription of the removal of any timber and the designated international purpose or object.

On the other hand, the prohibition of active logging operations (ie killing, cutting down or damaging a tree or part of a tree for the purposes of, or in the course of carrying out, forestry operations) within the protected areas is severable from the prohibition of removal of a tree or part of a tree. That prohibition of active logging operations falls within a different category from all the other prohibitions contained in s. 16(1) in that it is confined to activities which are obviously capable of being seen as constituting a threat to the preservation of any actual or potential world heritage areas in which they were carried on. If the prohibition of active logging operations throughout the whole of the protected areas was for an indefinite period, it would be difficult to justify it in a context where the evidence indicates that less than one half of the protected areas could, in fact, be realistically seen as under any threat of active logging operations: see, e.g., Richardson v. Forestry Commission [15] . Viewed as a temporary measure designed to provide interim protection pending the receipt of further information and advice however, the proscription of active logging operations is, on the material before the Court, reasonably capable of being seen as appropriate and adapted to the international purpose or object. In that regard, the failure to identify actual or potential world heritage areas within the protected areas is explicable by the need for the interim protection of the whole pending the outcome of an inquiry aimed, among other things, at such identification. The fact that the proscription of active logging operations applies to parts of the protected areas notwithstanding the absence of any real threat of logging operations in respect of those particular parts does not deprive the proscription of the element of proportionality. The reason for that is that the operative effect of the proscription will only be significant in relation to those areas where active logging operations otherwise would or might have occurred. In my view, the proscription of active logging operations contained in s. 16(1)(a) can, when viewed on its own, properly be characterized, by reference to the international purpose or object, as a law with respect to external affairs for the purposes of s. 51(xxix). That proscription is severable from the other provisions of s. 16(1) and is valid.

The provisions of s. 16(2) and (3) and the other provisions of Pt III of the Act are dependent for their operation upon the provisions of s. 16(1). Their validity is not, however, affected by the partial invalidity of s. 16(1). They remain valid and operative in relation to so much of s. 16(1) as is valid.

It was submitted on behalf of the Commonwealth that if the conclusion would otherwise be reached that, on the material before the Court, some or all of the provisions of Pt III of the Act were invalid, the Commonwealth should be accorded the opportunity of placing further material before the Court. Since a majority of the Court is of the view that the provisions of Pt III of the Act are, in any event, wholly valid, it is unnecessary for me to reach a conclusion in relation to that submission. I shall however, in deference to it, qualify my answer to the first question reserved for the opinion of the Court in so far as that answer relates to that part of s. 16(1)(a) which I would, on the material at present before the Court, hold to be invalid. I would not so confine that answer in so far as it relates to s. 16(1)(b),(c) and (d) since there is nothing which leads me to think that there is any real likelihood that my conclusion that those paragraphs are invalid could be avoided by reference to further material.

In terms, question one asks: "To what extent, if any, is the Act invalid?" I would answer it: "The provisions of s. 16(1)(b), (c) and (d) are all invalid. On the material presently before the Court, the proscription in s. 16(1)(a) of the removal of a tree or a part of a tree is invalid." The second question concerns the availability of what were pleaded as discretionary defences against the grant of injunctive relief at the suit of the Commonwealth against alleged breaches by the defendants of the provisions of Pt III. I agree, for the reasons which they give, that that question should be dealt with in the manner indicated in the judgment of the Chief Justice and Brennan J.

There is one further matter which I would briefly mention. It is that it should be stressed that the function of the Full Court in these proceedings is confined to determining the legal questions reserved for its consideration. It is no part of that function to determine whether, regardless of performance of international obligation or pursuit of international objective, the obvious general need to safeguard the Australian environment makes it desirable that an overall conservation regime of the type purportedly imposed by the provisions of Pt III of the Act should be imposed in respect of all or part of the protected areas. The point on which this judgment turns is a general principle of constitutional law. It is that, if the Parliament of the Commonwealth seeks to impose restrictions and obligations upon a State and citizens in respect of domestic subject-matters which do not prima facie lie within its legislative competence on the basis that some underlying international purpose or object characterizes the provisions imposing such restrictions and obligations as a law with respect to external affairs, it is for the Commonwealth (in this case through the plaintiff as the relevant Commonwealth Minister) or those who would uphold the validity of those provisions on that basis to point to material which makes it possible to say that the provisions are at least capable of being reasonably seen as appropriate and adapted to advance or achieve that purpose or object. In my view, that is something which the Commonwealth has, in the present case, signally failed to do in so far as the prohibitions which the Act would impose in relation to 4.5 per cent of the State of Tasmania extend beyond active logging operations.

In The Commonwealth v. Tasmania ("the Tasmanian Dam Case ") [16] , the majority took the view that legislation implementing the Convention for the Protection of the World Cultural and Natural Heritage was a valid exercise of the external affairs power contained in s. 51(xxix) of the Constitution. That view was taken, as I read the judgments, upon the basis that subject to express constitutional prohibitions, any matters covered by a bona fide international treaty are, by their very inclusion in the treaty, brought within the ambit of the external affairs power. As will be apparent from my reasons for judgment in the Tasmanian Dam Case, I am unable to accept that view. No doubt the activities involved in concluding an international agreement fall within the description of external affairs, but that does not to my mind bring the subject-matter of the agreement, if it is otherwise entirely domestic, within that description. In my view it is quite wrong to conclude that, because the scope of matters which are the subject of treaties has in modern times greatly expanded, the scope of the external affairs power has undergone the same expansion. The fact that an agreement is international in character does not necessarily mean that the matters with which it deals cease to be of a domestic nature and become part of the country's external affairs. Just as, in another context, the Constitution requires us to distinguish between interstate and intrastate trade, so we must distinguish between affairs which are external and those which are not. And just as the fact that a contract is made over State boundaries will not determine whether the subject-matter of the contract is interstate or intrastate trade, so the fact that an agreement is made internationally will not determine whether its subject-matter is external or domestic in character. Since there is no practical limit to those matters which may form the subject of international agreement, the result of taking the opposite view is that there is no practical limit to the scope of the external affairs power. That is to say, the result is that par. (xxix) has the potential to obliterate the division of legislative power otherwise effected by s. 51. Simply as a matter of construction, I cannot believe that such a result was ever intended.

However, I do not refer to these considerations merely to reiterate a view which did not find favour in the Tasmanian Dam Case. I mention them to indicate that my difference with the majority is upon a matter of fundamental importance. The course which I should adopt in these circumstances is not altogether clear. Plainly enough, if, as is the case, I do not think that the Constitution admits of any other interpretation, it is the words of the Constitution rather than authority which should govern any decision I might make. If I were asked to do so, I should find the greatest difficulty, notwithstanding the course taken in Queensland v. The Commonwealth [17] , in deciding that the Constitution said something which I thought it did not. This Court has never held itself to be bound by its own decisions and ultimately it is the Constitution itself, and not authority, which must dictate the answers which we give: see Australian Agricultural Co v. Federated Engine-Drivers and Firemen's Association of Australasia [18] , per Isaacs J.; the Tramways Case [No. 1] [19] , per Isaacs J.

1. (1977) 139 C.L.R. 585. 2. (1913) 17 C.L.R. 261, at pp. 275-279. 3. (1914) 18 C.L.R. 54, at p. 70.

Precedent must, however, have a part to play, even in the interpretation of a constitution. Considerations of practicality make it necessary that the law should, as far as possible, take a consistent course. The constant re-examination of concluded questions is incompatible with that aim. That is why this Court has adopted the practice of requiring leave to be granted before it will allow a previous decision to be re-argued: Evda Nominees Pty. Ltd. v. Victoria [20] . The parties in the present case did not seek to question the decision in the Tasmanian Dam Case. In these circumstances, and having made my own view clear, it is, I think, proper to proceed upon the same basis as did the argument in this case and to assume the authority of that decision.

The Tasmanian Dam Case does, I think, provide an answer in the present case because whatever else it decided, it did decide that the legislative implementation of an international treaty concluded in good faith is within the ambit of the external affairs power. True it is that the Tasmanian Dam Case appears to have decided more than this. As I read the judgments of the majority, it is enough to attract legislative power if, even though there is no treaty, a subject-matter is of sufficient international concern per Mason J. [21] ; per Murphy J. [22] ; per Brennan J. [23] ; and per Deane J. [24] . Although the majority did not necessarily place any reliance upon the judgment of Stephen J. in Koowarta v. Bjelke-Petersen [25] , that conclusion flows logically from the view which he expressed that the implementation of a treaty is not automatically an exercise of the external affairs power; the subject-matter of the treaty must also be a matter of international concern. Stephen J. saw the requirement of international concern as a restriction upon the power and I was prepared to view it in that way in the Tasmanian Dam Case. But in reality, as the decision in the latter case shows, the fact that a matter is the subject of a bona fide treaty makes it difficult to say that it is not a matter of international concern and, if international concern is the touchstone, why is a treaty necessary at all? Why is international concern over a matter not sufficient of itself to bring it within the external affairs power?

1. (1983) 158 C.L.R., at pp. 129-132. 2. (1983) 158 C.L.R., at pp. 171-172. 3. (1983) 158 C.L.R., at p. 222. 4. (1983) 158 C.L.R., at pp. 258-259. 5. (1982) 153 C.L.R. 168.

If the scope of the matters which may be the subject of treaties has greatly expanded in recent years, the scope of those matters which may be the subject of international concern is even wider. It is not, therefore, surprising to find a search for some limit to the breadth which, upon this expansive view, the external affairs power apparently possesses. In R. v. Burgess; Ex parte Henry ("Burgess' Case") [26] a similarly wide view, described by Dixon J. [27] as extreme, had been expressed by Evatt and McTiernan JJ. but they confined their attention to the implementation of an international convention and saw the outer limits of the legislative power as being fixed by the requirement that any legislation passed pursuant to this power should represent the fulfilment, so far as possible, of all the obligations assumed under the convention. Moreover, they observed [28] that:

Any departure from such a requirement would be completely destructive of the general scheme of the Commonwealth Constitution, for, as we are assuming for the moment, it is only because, and precisely so far as, the Commonwealth statute or regulations represent the carrying into local operation of the relevant portion of the international convention, that the Commonwealth Parliament or Executive can deal at all with the subject-matters of the convention. Doubtless this requirement does not necessarily preclude the exercise of wide powers and discretions by the Parliament or the Executive of the Commonwealth, for the international convention may itself contemplate that such powers and discretions should be exercisable by the appropriate authority of each party to the convention. Everything must depend upon the terms of the convention, and upon the rights and duties it confers and imposes. But the general requirement must be fulfilled or the Commonwealth will be exceeding its lawful domain. Upon this view everything must depend upon the terms of the convention or treaty and that, as will appear, is enough to decide this case. But if Evatt and McTiernan JJ. thought that this requirement provided any real limit to the reach of the external affairs power, then history has belied them. The precise terms of the convention for the regulation of aerial navigation, which was the treaty in question in Burgess' Case, are in stark contrast to those of the Convention for the Protection of the World Cultural and Natural Heritage which, in accordance with modern custom, give expression to broad policy, to aspiration and to exhortation. If actual obligations are imposed, they are of the most imprecise kind. And, of course, upon the view adopted by the majority in the Tasmanian Dam Case, the decisive thing must, in the end, be not the treaty but the international concern to which the treaty gives expression. 1. (1936) 55 C.L.R. 608. 2. (1936) 55 C.L.R., at p. 669. 3. (1936) 55 C.L.R., at p. 688.

Doubtless it is convenient, and in many cases true, to say that the degree of international concern is accurately reflected in the treaty. And so, accepting the majority view in the Tasmanian Dam Case, it will, in many cases, be sufficient to establish the validity of legislation passed in pursuance of a treaty to say that it is within the contemplation of the treaty. The test to be applied may be expressed in various ways. The approach adopted by the majority in the Tasmanian Dam Case was that the legislation must be reasonably capable of being seen as appropriate and adapted to the purpose of giving effect to the treaty, the precise means adopted being a matter for Parliament.

The element of purpose which is introduced by such a test is simply a means of establishing the necessary connexion between the legislation in question and the treaty which it purports to implement. The legislation if it is to be valid must be for the purpose of fulfilling the treaty. It is necessary to look at the purpose of the legislation to see whether it implements the treaty and so deals with a subject-matter which falls within the external affairs power, not for any purpose to be discerned from the legislative power itself. The legislative power is a power to legislate with respect to external affairs and the implementation of the treaty falls within that description not because of any purpose contained in it, but because the implementation of a treaty is a subject with a sufficient degree of externality to answer its requirements. This is reflected in the remarks of Dixon J. in Burgess' Case [29] when, in speaking of the obligation imposed by the convention for the regulation of aerial navigation, he said:

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. The purpose to which he was referring was the purpose of fulfilling an obligation imposed by a treaty, not some purpose to be gleaned from the external affairs power. Dixon J. did not share the view of the majority in the Tasmanian Dam Case, his belief being that the legislative implementation of a treaty fell within the external affairs power only if it " bound the Commonwealth in reference to some matter indisputably international in character " [30] For Dixon J. the conclusion of a treaty did not of itself confer international character upon its subject-matter. 1. (1936) 55 C.L.R., at pp. 674-675. 2. (1936) 55 C.L.R., at p. 669.

It has been said more than once that where legislation implements a treaty, it is the implementation of the treaty which is the subject-matter falling within the external affairs power rather than the subject-matter of the treaty. Thus Mason J. in the Tasmanian Dam Case rejected the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject-matter of the treaty as if that subject-matter were a new and independent head of Commonwealth legislative power. He continued [31] :

The law must conform to the treaty and carry its provisions into effect. The fact that the power may extend to the subject-matter of the treaty before it is made or adopted by Australia, because the subject-matter has become a matter of international concern to Australia, does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or is inconsistent with it. I must confess that I have some difficulty with those remarks. I cannot see why, if it is international concern which gives a subject-matter the character to bring it within the description of external affairs, the conclusion of a limited treaty upon that subject-matter should place outside the external affairs power that part of the subject-matter which is beyond the limits of the treaty. Nor can I see why legislation passed with respect to a matter of international concern should no longer be legislation with respect to external affairs simply because Australia becomes a party to a treaty upon a more limited basis than is reflected by the legislation. 1. (1983) 158 C.L.R., at pp. 131-132.

I suspect that the tendency to bring the focus back to the treaty stems from a desire to find practical limits to the ambit of the external affairs power lest the Court be seen to have relinquished in all but a theoretical sense the capacity to determine for itself the constitutional validity of legislation passed pursuant to that head of power. I think that a similar inclination lies behind the view that the external affairs power, like the defence power, is purposive in nature: see the Tasmanian Dam Case, per Deane J. [32] .

The purposive nature of the defence power, which differentiates it from other heads of power, including the external affairs power, makes it necessary to test the validity of a law passed in reliance upon it by reference to the purpose of the law rather than the subject-matter with which the law deals. Thus, at least in wartime, laws upon a vast number of matters, ranging from such things as capital loans and issues to housing and employment, may be brought within the defence power if it is necessary to do so for the purpose of defending the country. That is because the defence power contains within itself an expressed purpose, namely, the defence of the Commonwealth. It is necessary, because of the nature of that power, to look at what the legislation operates for, not what it operates upon: see Lane, Australian Federal System, 2nd ed. (1979), p. 139. And because conditions may vary from war to peace, what is necessary or appropriate for the defence of the Commonwealth may alter from time to time, giving the defence power an ambit which expands and contracts according to external conditions.

Other powers, including the external affairs power, are different. The validity of legislation passed in reliance upon them is tested by reference to the subject-matter of the legislation: whether it falls within the description afforded by the head of power, either directly or incidentally. Thus, to take up the example which I used at the beginning of these reasons, a law will be a law with respect to interstate trade if it has a sufficient operation upon something forming part of interstate trade. Similarly, a law will be a law with respect to external affairs if it operates upon something forming part of the external affairs of the country. The implementation of treaties has been held to be such a thing and once a law can be seen to have been enacted in the implementation of a treaty, it will be held, upon the prevailing view, to be valid. The power to make laws with respect to external affairs contains no expression of purpose and in that respect it is like most of the other powers contained in s. 51 of the Constitution. It is not a power to make laws for the purpose of cementing international relations or achieving international goodwill or even for implementing international treaties. The implementation of treaties falls within the power because it is a subject-matter covered by the expression "external affairs". And the purpose of legislation which purports to implement a treaty is considered not to see whether it answers a requirement of purpose to be found in the head of power itself, but to see whether the legislation operates in fulfilment of the treaty and thus upon a subject which is an aspect of external affairs.

If, as the majority in the Tasmanian Dam Case has held, it is international concern which ultimately marks out those matters which fall within the external affairs power, then it may be observed that that power also embraces a range of matters which may expand, and at least theoretically, contract from time to time. The application of the power will vary, not because the means necessary or appropriate to effectuate some purpose contained in the power change according to circumstances as is the case with a purposive power such as the defence power, but because a particular subject-matter may with the passage of time come to answer or cease to answer a description which brings it within the ambit of that power.

It may also be observed that the power to implement a treaty may be wide or narrow according to the way in which the treaty is drawn. It is in that way that purpose enters into the exercise because what is appropriate for the purpose of giving effect to a treaty will depend upon how widely or narrowly the treaty is drawn. As Evatt and McTiernan JJ. observed in Burgess' Case, everything must depend upon the terms of the treaty and upon the rights and duties which it confers and imposes and the discretions which it creates. It is for this reason amongst others that the view taken of the external affairs power by the majority in the Tasmanian Dam Case may be described as expansive.

The terms of the Convention for the Protection of the World Cultural and Natural Heritage reflect an evident desire to avoid encroachment upon the sovereignty of the nation states which are parties to the Convention. Each party is to determine for itself those measures which are appropriate for the identification and protection of the cultural and natural heritage within its territory. Indeed, if there is any significant obligation to be found in the Convention it must be that of devising and implementing those measures. The discretion reposed in the parties to the Convention to this end is absolute. Any suggestion that the legislation in question in this case goes further than is necessary is countered by the observation that the Convention leaves it to the parties, indeed upon one view imposes an obligation upon them, to decide for themselves what is necessary. The only possible question is whether the measures contained in the legislation are reasonably capable of being considered appropriate by the legislature for the identification and preservation of the nation's heritage and to answer that question in the negative would be tantamount to an imputation of mala fides. No such imputation has been made in this case. The Convention does not require proportionality between its aims and the measures taken to achieve them. That is a matter which is expressly left to the discretion of the parties. If the power thereby bestowed upon the legislature seems somewhat open-ended, it is not the result of any abdication by the Court of its role as an arbiter of constitutional validity but stems from the far-reaching view that a law which fulfils the provisions of a bona fide treaty, whatever they might be, is a law with respect to external affairs.

For these reasons and upon the assumptions which I have made I think that the answer to the first question is that the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Cth is wholly valid. As Mason C.J. and Brennan J. point out, it is inappropriate, apart from pars (i) and (ii) to answer the second question in the absence of agreed facts and as Wilson J. points out, the question was not, in the end, really pressed. I would answer pars. (i) and (ii) in the same way as Mason C.J. and Brennan J. for the reasons which they give and would decline to answer the rest of that question.

The defendants challenge the validity of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Cth ("the Act"), in particular Pt III of the Act, as beyond the legislative competence of the Parliament of the Commonwealth.

The long title of the statute describes it as: "An Act to provide for the establishment of the Commission of Inquiry into the Lemonthyme and Southern Forests, and for related purposes." The object of the legislation, as expressed by s. 4, is "to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention, in particular the obligations to: (a) identify and delineate the natural heritage and cultural heritage; and (b) take appropriate measures to protect and conserve that heritage".

The Convention referred to is the Convention for the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation and to which Australia is party. It is given effect to by the World Heritage Properties Conservation Act 1983 Cth ("the World Heritage Act") to which it appears as a schedule.

Part II of the Act establishes the Commission of Inquiry into the Lemonthyme and Southern Forests. The Commission is required to inquire into and report on certain matters. To appreciate the nature of the inquiry, regard must be had to the notion of "qualifying area". Section 3 of the Act defines "qualifying area" to mean so much of any area that is:

(a) wholly or partly within the Lemonthyme area or the Southern Forests area; and

(b) a world heritage area or an area that contributes to the integrity or values of:

(i) a world heritage area that is wholly or partly within the Lemonthyme area or the Southern Forests area; or

The expression "world heritage area" is defined by s. 3 to mean: "an area that forms part of the cultural heritage or the natural heritage". Section 3 gives to "cultural heritage" and "natural heritage" the same meanings they have in the Convention.

Section 8(1) requires the Commission to inquire into and report on:

(i) whether there are, within areas of Tasmania that are outside the qualifying areas and are not national estate areas, forestry resources capable of exploitation in a way that would cause no detriment to the Tasmanian forestry industry and that would be an environmentally and economically prudent and feasible alternative to the exploitation of any forestry resources in the qualifying areas;

(ii) where there are not - whether there are, within areas of Tasmania (including national estate areas other than nominated world heritage areas) that are outside the qualifying areas, forestry resources capable of exploitation in a way that would cause no detriment to the Tasmanian forestry industry and that would be an environmentally and economically prudent and feasible alternative to the exploitation of any forestry resources in the qualifying areas; and

(iii) where there are not - which of the means of exploiting the forestry resources of Tasmania (including the qualifying areas but not including any nominated world heritage areas) without causing any detriment to the Tasmanian forestry industry will cause least damage to the qualifying areas;

(c) where the first-mentioned forestry resources in subparagraph (b)(i) or (ii) are not capable of exploitation in the way referred to in that subparagraph, whether those forestry resources are capable of exploitation in ways that are environmentally and economically prudent and feasible alternatives to the exploitation of any forestry resources in the qualifying areas, and, if so, which of those ways will cause the least detriment to the Tasmanian forestry industry;

(d) where the first-mentioned forestry resources in subparagraph (b)(ii) are capable of exploitation in the way referred to in that subparagraph, whether that exploitation, in so far as it affects national estate areas, is, consistent with proper forestry management, able to be delayed, and, if so, the extent of that delay;

(e) where a means of exploiting the forestry resources of Tasmania that will cause least damage to any qualifying areas is identified under subparagraph (b)(iii), whether that exploitation, in so far as it affects either national estate areas or qualifying areas, or both, is, consistent with proper forestry management, able to be delayed, and, if so, the extent of that delay.

The Commission is in the course of conducting its inquiry. The Lemonthyme and Southern Forests areas of Tasmania comprise 14,300 and 269,000 hectares respectively. Together they constitute about 4.5 per cent of Tasmania's land surface. They abut part of the eastern boundary of an area listed in the World Heritage List established under the Convention and known as the Western Tasmanian Wilderness National Parks. The land is almost entirely Crown land though there are small pockets of freehold. It is common ground that the areas contain substantial portions of State forest, some but not all of which is suitable for commercial exploitation.

Part III of the Act is entitled Interim Protection of Certain Areas. To understand the operation of Pt III it is again necessary to resort to the definition section of the Act. (The Act is very much its own dictionary though some of its expressions derive from the Convention.) Section 3 defines "protected area" to mean "the Lemonthyme area and the Southern Forests area, other than any part of either area that is an excluded area". An "excluded area" is one specified in a notice under s. 20(a)(i) of the Act, a reference to a notice to be published in the Gazette by the Minister on receipt of an interim report from the Commission.

The sting of Pt III lies in s. 16, sub-s. (1) of which reads:

Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, to do any of the following acts during the interim protection period:

(a) for the purposes of, or in the course of carrying out, forestry operations, to kill, cut down or damage a tree in, or remove a tree or a part of a tree from, the protected area;

(b) to construct or establish a road or vehicular track within the protected area;

(c) to carry out any excavation works within the protected area;

(d) to do any other act prescribed for the purposes of this paragraph, being an act capable of adversely affecting the protected area.

The "interim protection period" referred to in s. 16 is defined by s. 3 to mean:

the period commencing at the commencement of the inquiry period and ending at the end of the forty-second day after:

(a) where paragraph (b) does not apply - the end of the inquiry period; or

(b) where, before the last day of the inquiry period, notice of the receipt by the Minister of the final report is published in the Gazette under subparagraph 20(a)(ii) - the day on which that notice is published.

In determining whether or not to give a consent under s. 16, the Minister "shall have regard only to Australia's obligations under the Convention": s. 18(1).

The attack on the validity of the Act is made in the context of an application by the federal Minister of State for the Environment and the Arts to restrain the first defendant, a body established by the Forestry Act 1920 Tas. to control and manage forests in Tasmania, and the second defendant, a timber miller, from continuing logging operations within the protected area. The logging operations planned for the interim protection period involve 145 ha. in the Lemonthyme area and 151 ha. in the Southern Forests area, in both cases with associated road-works. The basis of the attack on the Act lies in the fact that no part of the protected area is "identified property" as that term is defined in the World Heritage Act. Section 3(2) of this Act provides that a reference to identified property is 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 as suitable for inclusion in the World Heritage List ; 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).

At the time of the hearing of this matter Australia had not sought inclusion in the World Heritage List, whether as part of the Western Tasmanian Wilderness National Parks or otherwise, of either the Lemonthyme or Southern Forests. By requiring the Commission to give priority to identifying any part or parts of the areas "that are definitely not qualifying areas" and reporting to the Minister accordingly (s. 8(5)), the Act contemplates that there will be parts, perhaps substantial parts, that will not meet the criteria for cultural or natural heritage in the Convention. The question of construction posed by the defendants is whether Australia has any obligations under the Convention in respect of the Lemonthyme and Southern Forests, having regard to the absence of those areas from the World Heritage List, indeed from nomination to that list.

Articles 1 and 2 of the Convention define what is meant by cultural heritage and natural heritage. Article 3 asserts:

It is for each State Party to this Convention to identify and delineate the different properties situated on its territory . By Art. 4 each State Party to the 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. Article 5 spells out the measures to be taken by a State Party to the Convention "for the protection, conservation and presentation" of its cultural and natural heritage. These include:

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage.

The attack on the Act focuses largely on Pt III, the argument being that, on no view of Australia's obligations under the Convention and the scope of s. 51(xxix) of the Constitution, can the prohibitions in s. 16 of the Act be justified. And, it is said by the defendants, the conduct proscribed by s. 16 includes conduct that may in no way infringe any of the values sought to be protected by the Convention. By way of illustration, the building of a fire-break might constitute "excavation works" and fall foul of par. (c) of s. 16(1), though the fire-break would serve to protect the forest. The defendants further argue that, if the consent of the Minister is sought to such conduct, the Minister may have regard only to Australia's obligations under the Convention, obligations which may have little relevance to the circumstances in which consent is sought.

The Convention imposes an obligation on Australia as a State Party to the Convention to ensure that effective and active measures are taken for the protection, conservation, presentation and transmission to future generations of its cultural and natural heritage, including the taking of legal measures to this end: The Commonwealth v. Tasmania ("the Tasmanian Dam Case "), per Mason J. [33] , per Murphy J. [34] , per Brennan J. [35] and per Deane J. [36] . That is sufficient, though not necessary, to bring such measures within the external affairs power of the Constitution: s. 51(xxix). Furthermore the implementation of the Convention is, independently of a specific obligation to do so, an exercise of the external affairs power: the Tasmanian Dam Case, per Mason J. [37] , per Brennan J. [38] and per Deane J. [39] . None of the parties sought to re-argue the decision in that case.

1. (1983) 158 C.L.R. 1, at pp. 132-136. 2. (1983) 158 C.L.R., at pp. 177-178. 3. (1958) 158 C.L.R., at pp. 216-228. 4. (1983) C.L.R., at pp. 253-254, 261-264. 5. (1983) 158 C.L.R., at pp. 129-130. 6. (1983) 158 C.L.R., at p. 226. 7. (1983) 158 C.L.R., at pp. 258-259.

Part II of the Act sets up machinery to identify areas that will answer the description of world heritage areas or areas contributing to the integrity or values of world heritage areas. In that way it gives effect to Arts. 3 and 4 of the Convention. But the defendants contend that Pt III of the Act cannot be supported in this way. Except with the consent of the Minister, the conduct set out in s. 16 is proscribed. This proscription is said to be beyond any view of the external affairs power, for two reasons. The first is that it relates to the protected area, meaning the Lemonthyme and Southern Forests (other than an excluded area). And, so the argument runs, there is no necessary correspondence between the protected area and a qualifying area. It may well turn out that little or none of the protected area answers the description of a qualifying area. Nevertheless, during the interim protection period any conduct falling within s. 16 of the Act may be restrained unless the Minister consents to it.

Secondly, say the defendants, the conduct proscribed by s. 16 may have no relation to the protection, conservation or presentation of the cultural and national heritage that the Convention aims to save. Such conduct may be neutral in that regard or may positively assist preservation, conservation or presentation of the heritage but be proscribed, either expressly in terms of pars. (a), (b) or (c) or through the operation of par. (d).

The Tasmanian Dam Case was of course concerned with land that was on the World Heritage List. None of the Lemonthyme or Southern Forests is on that list. Article 11 of the Convention prescribes the procedure by which property may be included in the list. In effect a State Party to the Convention submits an inventory of property forming part of its cultural and natural heritage. The World Heritage Committee established by the Convention determines whether or not property should be included in the list.

It is for each State Party to the Convention to identify and delineate the different properties on its territory constituting its cultural or natural heritage: Art. 3. The role of identification is reinforced by Arts. 4 and 5. The obligations imposed by Art. 5, especially those nominated in par. (d), make it clear that identification is an integral part of the protection of the cultural and natural heritage: see also the Tasmanian Dam Case, per Mason J. [40] and per Brennan J. [41] .

1. (1983) 158 C.L.R., at p. 133. 2. (1983) 158 C.L.R., at p. 228.

Counsel for the State of Queensland, an intervener, submitted that the process contemplated by the Convention is identification, then protection. In consequence, it was argued, Pt III of the Act could only be justified if reasonably necessary for the step of identification for, in the absence of identification, it could not be supported as a measure for protection or conservation. This is an unduly narrow view of what the Convention demands. Identification and protection of the cultural and natural heritage do not form discrete compartments nor is there a pre-ordained sequence as between them. And it is significant that Art. 4 of the Convention contains a recognition that it is the duty of each State Party to the Convention to ensure identification and protection. As Mason J. pointed out in the Tasmanian Dam Case [42] :

Implementation of the Convention, and of the obligation which it imposes on Australia in relation to the property, calls for the establishment of a regime of control which will ensure protection and conservation of the property. No doubt there are a variety of methods of control which will achieve this result. But it is not for the Court to choose between them, or to prefer one to another. The only question is whether the legislative provisions are appropriate and adapted to the desired end . 1. (1983) 158 C.L.R., at p. 138.

The power conferred on the Parliament by s. 51(xxix) is a power to legislate "with respect to" external affairs. What those words require is "a relevance to or connexion with the subject assigned to the Commonwealth Parliament": Grannall v. Marrickville Margarine Pty. Ltd. [43] . The Court continued in Grannall [43] :

every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject-matter. 1. (1955) 93 C.L.R. 55, at p. 77. 2. (1955) 93 C.L.R. 55, at p. 77.

To return to the Act itself. As mentioned earlier, s. 4 expresses the object of the Act as. "to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention ". In its language, the section appropriately accommodates the object of the Convention.

It is not the Commission's inquiry that is under attack. Indeed no specific head of power is necessary to enable the Commonwealth to conduct an inquiry. It is the use of compulsion and the imposition of prohibitions on conduct that give rise to questions of power: Clough v. Leahy [44] ; Lockwood v. The Commonwealth [45] ; Church of Scientology v. Woodward [1] .

1. (1904) 2 C.L.R. 139. 2. (1954) 90 C.L.R. 177, at p. 182. 3. (1982) 154 C.L.R. 25, at p. 62.

Part III of the Act is expressly limited in the duration of its operation. The interim protection period mentioned in s. 16 has already been referred to and its connexion with the duration of the inquiry noted. Given the complexity of the Commission's inquiry, the period cannot be regarded as unreasonable.

The acts prohibited by s. 16 are identified in general terms, but with sufficient clarity. They are acts of a nature calculated to have an adverse effect on the wilderness area that is said to constitute the natural or cultural heritage, even though it is not hard to conceive of a prohibited act that may, in some circumstances, not endanger the environment. (The building of a fire-break has already been mentioned in this context.) Though par. (d) of s. 16(1) includes among the prohibited acts "any other act prescribed for the purposes of this paragraph", such an act must be "capable of adversely affecting the protected area".

In determining whether or not to give a consent under s. 16, the Minister "shall have regard only to Australia's obligations under the Convention": s. 18. I do not accept the submission of the defendants that the limitation on the matters the Minister may take into account in some way takes s. 16 beyond a legitimate exercise of power. Indeed it is apparent that the protection and conservation of property, in this case the particular forest areas, circumscribes the range of matters to be taken into account by the Minister when deciding whether or not to give a consent under s. 16. A refusal based on other considerations would not be a legitimate exercise of power. An act which falls within pars. (a), (b) or (c) of s. 16(1) but which, in the particular circumstances, is not likely to be destructive of the heritage is an act to which the Minister may give his consent, consistently with Australia's obligations under the Convention.

No doubt a refusal of ministerial consent may, in a particular case, cause hardship to an applicant. But s. 19 of the Act imposes a liability on the Commonwealth to pay compensation to a person who suffers loss or damage because he refrains from doing an act made unlawful by s. 16(1). Equally, where the owner of any part of the protected area suffers loss or damage because another person refrains from doing an act made unlawful by s. 16(1), there is a liability on the Commonwealth to pay compensation. Furthermore, a decision by the Minister to grant or withhold consent is susceptible of review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 Cth and in the exercise of the original jurisdiction of this Court and the Federal Court, under s. 75(v) of the Constitution and s. 39B of the Judiciary Act 1903 Cth respectively.

Part III is aimed at insulating the protected area from acts that may adversely affect it, but only for the duration of the inquiry. If Pt III was of indefinite duration, a serious question would arise as to its connexion with the obligations of Australia under the Convention. But its life is limited, governed by the life of the inquiry which has as its object the identification of areas that form part of the natural and cultural heritage of this country. It applies only to the protected area; furthermore s. 8(5) of the Act obliges the Commission to give priority to identifying any parts of the areas "that are definitely not qualifying areas" and to report accordingly to the Minister "as soon as practicable". The consequence of such a report is that the area in question becomes an "excluded area" and no longer relevantly part of the Lemonthyme area or Southern Forests area. Overall there is a close connexion between the prohibition in s. 16 and the process of identification and protection in the Convention. The considerations which I have mentioned in regard to s. 16 and Pt III generally distinguish and render inapplicable the reasons that lead Brennan J. and Deane J. to strike down s. 9(1)(a) to (g) of the World Heritage Act in the Tasmanian Dam Case.

Thus the Act is consistent with and gives effect to Australia's obligations under the Convention. It is, in the language of Barwick C.J. in Airlines of N.S.W. Pty. Ltd. v. New South Wales [No. 2] [2] , "appropriate and adapted" to the implementation of the Convention. Certainly it is seen by the Parliament to be so; viewed objectively it is capable of being reasonably considered to be so and that is enough to support the means chosen by Parliament to give effect to the Convention: the Tasmanian Dam Case, per Mason J. [3] , per Murphy J. [4] , per Brennan J. [5] , and per Deane J. [6] . The absence of areas from the World Heritage List is no obstacle to the validity of the Act, for the Act constitutes a scheme designed to identify areas that warrant protection under the Convention by their inclusion on the list.

1. (1965) 113 C.L.R. 54, at p. 86. 2. (1983) 158 C.L.R., at pp. 130-132. 3. (1983) 158 C.L.R., at p. 172. 4. (1983) 158 C.L.R., at p. 232. 5. (1983) 158 C.L.R., at pp. 259-261.

Equally, the inclusion in the definition of "qualifying area" of land that is not itself a world heritage area but contributes to the integrity or values of such an area cannot invalidate the Act. It may fairly be seen as an aspect of the Commission's inquiry under s. 8 of the Act, designed to assist Australia in its obligations under the Convention to identify and delineate the world heritage that may exist within the Lemonthyme and Southern Forests areas and also to protect that heritage from damaging activities on adjacent land.

The defendants make the further point that the Act, in particular Pt III, is invalid because it curtails or impairs the legislative and executive functions of the State of Tasmania and the prerogative of the Crown in right of Tasmania in relation to its lands. But nothing in the Act discriminates against Tasmania as a member of the federation. The Act fastens on to an area of land that, as it happens, is part of Tasmania. But it does so because of the character of that area of land, not because it is part of a particular State. Nor does the Act hinder or impair the continued existence of Tasmania or its capacity to function. The most that can be said is that for a limited time there is a prohibition against certain conduct on the land to which the Act relates: cf. the Tasmanian Dam Case, per Mason J. [7] , per Murphy J. [8] , per Brennan J. [9] and per Deane J. [10] . The argument must fail.

1. (1983) 158 C.L.R., at pp. 139-141. 2. (1983) 158 C.L.R., at pp. 168-170. 3. (1983) 158 C.L.R., at pp. 215-216. 4. (1983) 158 C.L.R., at pp. 280-281.

There is a further question reserved for consideration by the Full Court. It is in these terms:

In point of law is any, and if so, which, of the allegations made:

(i) in par. 17 of the Defence of the First Defendant

(ii) in par. 15 of the Defence of the Second Defendant

(iii) in par. 16 of the Defence of the Second Defendant,

an answer to the relief claimed by the Plaintiff against the respective Defendants?

This question and its implications are examined by Mason C.J. and Brennan J. with whose conclusions I agree. Accordingly I agree with the answers proposed by them.

Australia is a State Party to the Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization ("the Convention") in 1972.

The Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Cth ("the Act") has as its stated object in s. 4 the provision for measures to enable effect to be given to Australia's obligations under the Convention in relation to the Lemonthyme and Southern Forests areas of Tasmania. The primary obligations imposed upon each State Party to the Convention are to identify and delineate the cultural and natural heritage as defined in the Convention, and to protect, conserve, present and transmit that heritage to future generations: Arts. 3 and 4. These obligations are amplified in Art. 5 to include the duty to:

endeavour, in so far as possible, and as appropriate for each country:

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of [the] heritage.

"Cultural heritage" is defined in Art. 1 to include:

elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science;

sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view.

No other part of the definition would seem applicable to the Lemonthyme and Southern Forests areas. These consist mainly of wilderness and forest, although they have 155 ha. and 80 ha. respectively in private ownership and used for grazing.

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 Act establishes a Commission of Inquiry ("the Commission") which by s. 8(1)(a) is required to inquire and report whether there are any qualifying areas, which are defined in s. 3 to mean so much of an area that is:

(a) wholly or partly within the Lemonthyme area or the Southern Forests area; and

(b) a world heritage area or an area that contributes to the integrity or values of:

(i) a world heritage area that is wholly or partly within the Lemonthyme area or the Southern Forests area; or

Where there are qualifying areas, the Commission is also required to inquire and report as to forestry resources in Tasmania, and in particular to determine whether there are any such resources outside a qualifying area which might be exploited without detriment to the forestry industry in Tasmania as an alternative to the forestry resources in any areas found to be qualifying areas: s. 8(1)(b). The Commission is also to inquire and report on various matters concerning the possible exploitation of forestry resources in Tasmania.

Section 8(5) directs the Commission to give priority to identifying any parts of the Lemonthyme or Southern Forests areas that are definitely not qualifying areas and report the identification of any such part or parts to the Minister as soon as practicable.

Section 16 falls within Pt III of the Act, and accords protection to the Lemonthyme and Southern Forests areas for an "interim protection period" which is defined in s. 3 of the Act as:

the period commencing at the commencement of the inquiry period and ending at the end of the forty-second day after:

(a) where paragraph (b) does not apply - the end of the inquiry period; or

(b) where, before the last day of the inquiry period, notice of the receipt by the Minister of the final report is published in the Gazette under subparagraph 20(a)(ii) - the day on which that notice is published.

"Inquiry period" is defined as the period commencing when the Act comes into operation and ending one year afterwards.

The protection afforded by s. 16 ceases in respect of any area identified by the Commission under s. 8(5) as definitely not a qualifying area upon publication of notice in the Gazette of the area thus identified: see definitions of protected area and excluded area in s. 3 of the Act. In accordance with s. 20(a)(i), a notice specifying the area identified as definitely not a qualifying area must be published within fourteen days of the Minister's receipt of the report.

(1) Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, to do any of the following acts during the interim protection period:

(a) for the purposes of, or in the course of carrying out, forestry operations, to kill, cut down or damage a tree in, or remove a tree or a part of a tree from, the protected area;

(b) to construct or establish a road or vehicular track within the protected area;

(c) to carry out any excavation works within the protected area;

(d) to do any other act prescribed for the purposes of this paragraph, being an act capable of adversely affecting the protected area.

(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, during the interim protection period to permit, authorise, direct or order or to purport to permit, authorise, direct or order any person to do an act that is unlawful under subsection (1).

(3) Except with the consent of the Minister, it is unlawful for a person who is the owner or occupier of any part of the protected area to fail to take reasonable steps to prevent the doing within that part of the protected area of any act that is unlawful under subsection (1).

Section 18 requires the Minister, when determining whether or not to consent to any act otherwise forbidden by s. 16, to have regard only to Australia's obligations under the Convention.

The first question asked in the present case stated is to what extent, if any, is the Act invalid. In the course of argument the area of contest was narrowed to two issues, namely, the validity of the Act in so far as it authorises inquiry as to available forestry resources and alternatives to the exploitation of forest resources in a qualifying area, and the validity of Pt III (which includes ss. 16 and 18) and which may be described as the protective provisions of the Act.

The questions arise in a context somewhat different from that which provided the background to the decision in The Commonwealth v. Tasmania ("the Tasmanian Dam Case ") [11] . The legislation there under consideration was challenged with respect to its operation on land which had been identified and delineated as forming part of the cultural or natural heritage the subject of the Convention. It was not in issue that the land so identified and delineated constituted part of the natural heritage as defined in the Convention. It was in that case decided that the Convention gave rise to an obligation with respect to that land and that the legislation, so far as it was held valid, was legislation which implemented that obligation.

The Lemonthyme and Southern Forests areas may, or may not be, or contain, areas of "outstanding universal value". Although s. 4 of the Act speaks of Australia's obligations under the Convention in relation to the Lemonthyme and Southern Forests areas, the Act is not accurately described as one which implements an obligation under the Convention attaching to those areas. Rather, the Act provides the machinery to determine whether there is a Convention obligation in respect of the areas (or part thereof); to determine, in other words, whether any of the areas to which the Commission's attention is directed are part of the heritage to which the Convention applies.

It is not necessary that an area be identified or delineated, much less nominated or accepted for inclusion on the World Heritage List, for it to constitute part of the heritage to which the Convention applies. However, where the legislation under consideration posits no more than that an area may consist of (or contain) a world heritage area, or an area may contribute to the integrity or values of a world heritage area (leaving open the possibility that it may contain neither) and the purpose of the legislation is to ascertain whether and, if so, where there are such areas, it is not then possible to assert the existence of a recognizable obligation under the Convention attaching to the relevant area as a heritage area.

The absence of a recognizable obligation attaching to the Lemonthyme and Southern Forests areas as heritage areas is not necessarily fatal to the validity of s. 16. However, the question of validity must be answered by reference to other considerations, for the Court cannot uphold the validity of a law by reference to the existence of some fact or state of affairs unless satisfied of the existence of that fact or state of affairs: Australian Communist Party v. The Commonwealth [12] ; Commonwealth Freighters Pty. Ltd. v. Sneddon [13] ; Hughes and Vale Pty. Ltd. v. New South Wales [No. 2] [14] . In satisfying itself on the validity of an enactment, the Court may make "every reasonable intendment" in favour of the legislation: Attorney-General (Vict.) v. The Commonwealth [15] . However, given the uncertainty manifest in the Act as to whether or not any area within the Lemonthyme or Southern Forests areas is a world heritage area or contributes to the integrity or values of a world heritage area, no reasonable intendment in favour of the legislation can be made by reference to any Convention obligation attaching to the areas as heritage areas.

1. (1951) 83 C.L.R. 1, at p. 222. 2. (1959) 102 C.L.R. 280, at p. 307. 3. (1955) 93 C.L.R. 127, at p. 165. 4. (1945) 71 C.L.R. 237, at p. 267.

The Tasmanian Dam Case established that a treaty obligation will attract the legislative power of the Commonwealth with respect to external affairs. In that case the majority also gave expression to the view, which I would adopt, that the power may be attracted by a treaty notwithstanding the absence of a treaty obligation. Mason J. [16] observed:

If the carrying out of, or the giving effect to, a treaty or convention to which Australia is a party is a matter of external affairs, and so much is now accepted, it is very difficult to see why a law made under s. 51(xxix), i.e., a law with respect to the matter of external affairs, should be limited to the implementation of an obligation. 1. (1983) 158 C.L.R., at pp. 129-130.

Murphy J. [17] was of the view that it was sufficient if the law inter alia:

(b) implements any treaty or convention whether general (multilateral) or particular, or (c) implements any recommendation or request of the United Nations organization or subsidiary organizations such as the World Health Organization, the United Nations Education, Scientific and Cultural Organization, the Food and Agriculture Organization or the International Labour Organization . 1. (1983) 158 C.L.R., at pp. 171-172.

I should wish to guard against a suggestion that it is necessary to find such an obligation before one can find an external affair which enlivens the power under s. 51(xxix). 1. (1983) 158 C.L.R., at p. 222.

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. 1. (1983) 158 C.L.R., at pp. 258-259.

I am of the view that it is not necessary for a treaty to which Australia is a party to impose an obligation upon Australia as a condition precedent to engaging the external affairs power. The fact that Australia is a party to a treaty (leaving to one side a treaty which is not entered into bona fide) will itself suffice to engage the power to legislate with respect to external affairs, and will authorize the passing of a law so long as that law is reasonably capable of being viewed as conducive to the purpose of the treaty if it is also reasonably capable of being viewed as appropriate, or adapted to, the circumstance which engages the power.

On the view I adopt it is not necessary for the validity of the Act that there be isolated a Convention obligation with respect to property which may or may not be a world heritage area. However, even if the validity of the Act was to turn upon identifying such a Convention obligation, I am of the view that the Convention obligation in Art. 2 to identify and delineate, and the obligation in Art. 5(d) to take appropriate measures for the identification of world heritage areas, have implicit in them an obligation to take appropriate steps to protect and conserve the features which give to property the quality that it may be part of the world heritage pending a determination as to whether or not it is part of that heritage.

To determine whether the disputed provisions of the Act are reasonably capable of being considered conducive to the purpose of the Convention it is, I think, appropriate to accept the legislative judgment that there is a possibility that the areas consist of, or contain, parts which are of world heritage significance. Certainly that judgment is borne out by the non-disputed facts as set forth in the judgment of Mason C.J. which was delivered when granting interlocutory injunctions pursuant to s. 17 of the Act.

The purpose of the Convention may briefly be described as the effective protection of the world cultural and natural heritage through measures taken by State Parties to the Convention, supported and assisted, where necessary, by other members of the international community. So much is able to be discerned from the scheme of the Convention, and in particular from Art. 7, which provides:

For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international cooperation and assistance designed to support State Parties to the Convention in their efforts to conserve and identify that heritage. Each State Party undertakes obligations with respect to the identification, protection, conservation, presentation and transmission to future generations of the heritage in its territory, although Art. 5 provides that the active measures required of each State Party in relation to protection, conservation and presentation are those which are possible and appropriate for that country.

Given that it is possible that the Lemonthyme and Southern Forests areas are, or contain areas which are, of world heritage significance, and that they also contain timbered areas which are the subject of permits for forestry operations, the ascertainment of the existence and exploitability of forest resources in Tasmania (whether within or without the Lemonthyme or Southern Forests areas) cannot be said to be irrelevant to a consideration of what is possible or appropriate in the event that the areas prove to be, or contain parts, of world heritage significance. Such an inquiry is, in my opinion, capable of being viewed as conducive to the purpose of the Convention, and is capable of being so viewed notwithstanding that it proceeds contemporaneously with the inquiry as to whether or not any part (or parts) of the areas are of world heritage significance. Once it is accepted that the question of validity may be answered by reference to the purpose of the Convention and not merely by reference to whether or not the land or property to which the law applies is part of the heritage as defined in the Convention, it must be accepted, in my view, that the legislative power extends, at once, to all matters conducive to that purpose.

To allow that the legislative power extends, at once, to all matters conducive to the purpose of the Convention is to allow that the power extends to a law for the protection or conservation of those features which give to a property the quality that it might possess world heritage significance, at least for such time as is reasonably appropriate for the determination of that issue. If it is established that the property does have the necessary significance, legislative power extends to a law for the protection of the property for such time as is necessary for the determination of what is possible or appropriate in implementation of the Convention in relation to that property.

It is established by the Tasmanian Dam Case that where Parliament enacts legislation in implementation of a treaty it is for the Parliament to choose the method by which that object is achieved, provided the method chosen is appropriate and adapted to that object. So too, it seems to me, that where the Parliament enacts legislation for the purpose of bringing about a state of affairs conducive to the purpose of a treaty, it is for the Parliament to choose the method by which that object is to be achieved. However, I do not think that it states the position with sufficient accuracy to say that a law which is enacted for the purpose of bringing about a state of affairs conducive to the purpose of a treaty must be appropriate and adapted to that object.

It is clear from the Tasmanian Dam Case that the mere fact that Australia is party to a treaty does not engage the external affairs power so as to authorize a law on the subject covered by the treaty. The power is relevantly confined by the treaty. Mason J. put the matter thus [20] :

I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject-matter of the treaty as if that subject-matter were a new and independent head of Commonwealth legislative power. The law must conform to the treaty and carry its provisions into effect. Murphy J. said [21] : The fact that a subject becomes part of external affairs does not mean that the subject becomes, as it were, a separate, plenary head of legislative power. If the only basis upon which a subject becomes part of external affairs is a treaty, then the legislative power is confined to what may reasonably be regarded as appropriate for implementation of provisions of the treaty. Again, if the subject of external affairs is some other circumstance, the legislative power will extend to laws which could reasonably be regarded as appropriate for dealing with that circumstance. Brennan J. observed [22] : The scope of the legislative power is defined by the international obligation and the validity of a law made in purported pursuance of the power depends upon whether "the law can fairly be regarded as providing a way of doing what the Commonwealth has undertaken to do; the choice of ways and means being a matter essentially for the Parliament": per Menzies J. in the Second Airlines Case [23] . Deane J. said [24] : the law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs. See also R. v. Burgess; Ex parte Henry [25] ; R. v. Poole; Ex parte Henry [No. 2] [26] and Airlines of New South Wales Pty. Ltd. v. New South Wales [No. 2] [27] . 1. (1983) 158 C.L.R., at p. 131. 2. (1983) 158 C.L.R., at p. 172. 3. (1983) 158 C.L.R., at p. 232. 4. (1965) 113 C.L.R., at p. 136. 5. (1983) 158 C.L.R., at p. 259. 6. (1936) 55 C.L.R. 608, at pp. 659-660. 7. (1939) 61 C.L.R. 634, at p. 647. 8. (1965) 113 C.L.R. 54, at p. 86.

The need for legislation which is enacted in discharge of a treaty obligation to conform to, or to be reasonably capable of being regarded as appropriate or adapted to, the treaty obligation derives not from any particular feature attaching to a treaty or treaty obligation, but rather, from the fact that the treaty obligation is the circumstance which engages the power to legislate with respect to external affairs. Where a law is enacted other than in discharge of a treaty obligation, the touchstone of validity must also be the circumstance which engages the external affairs power: i.e., "[t]he 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" per Deane J., the Tasmanian Dam Case [28] .

In the present case, whether the question of legislative power be approached in terms of an obligation implicit in the Convention to take appropriate steps to protect the features which give to property the quality that it may form part of the world heritage, or whether it be approached in terms of securing a state of affairs conducive to the purposes of the Convention, at base the circumstance that engages the legislative power is that the Lemonthyme and Southern Forests areas may be (or may contain) world heritage areas. It is to that circumstance, comprehending the possibility that the areas, either in whole or in part, may lack world heritage significance, that the law must be appropriate and adapted.

Within the context of the Convention, a law which provides machinery to investigate and determine whether land is, or contains, a world heritage area, and which further provides for a determination of matters relevant as to what is appropriate or possible in discharging obligations arising under the Convention in relation to any land so found, is appropriate and adapted to the circumstance that the land identified in the preamble to the Act may be, or may contain, areas of world heritage significance. Accordingly, in my view, s. 8 of the Act is valid.

Within that same context, a law which protects and conserves the qualities or features which give to the land the characteristic that it may be, or contain, a world heritage area, will also be appropriate and adapted to the circumstance which, at base, engages the power to legislate with respect to external affairs. A law which does more lacks proportionality to that circumstance, for as Deane J. observed in the Tasmanian Dam Case [28] , there is "[i]mplicit 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 a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it". A law, therefore, which proscribes activities which pose no threat to the qualities or features which give the land the characteristic that it may be, or may contain, a world heritage area, is not one which (in the context of the Convention) can be said to be a law with respect to external affairs.

In the present case no effort was made to identify the qualities or features giving the land its relevant characteristic beyond those identified in the judgment of Mason C.J. when granting interlocutory relief under the Act. Those so identified include stands of wet sclerophyll forest, a stand of timber containing King Billy pine, communities of Alpine plants, an area of Huon pine, and wilderness areas in the Southern Forests area [29] . In the Lemonthyme, the identified features include areas of tall eucalypt and possibly archaeological sites. It may be accepted that forestry operations, construction of roads or vehicular tracks, or excavation works, which are rendered unlawful by s. 16(1)(a), (b) and (c), constitute a threat to the features identified, if undertaken in, or in proximity to the specific areas in which they are located. However, the proscriptions apply generally, save to the extent that any area is identified as definitely not a qualifying area. They apply to areas of land in private ownership and used for grazing. They apply also to an area in which timber has been felled and to an area that has been previously cut over. There is no material which enables it to be said that each and every act proscribed by s. 16(1)(a), (b) or (c) would, if done in the protected area, constitute a danger to the qualities and features which are relevant to the Lemonthyme and Southern Forests areas as areas which are possibly of world heritage significance. The fact that the areas contain grazing land and an area in which timber has been felled and an area which has been cut over suggests otherwise. In the absence of material to the contrary, s. 16(1)(a), (b) and (c) must be viewed as operating to curtail activities whether or not they constitute a threat to the relevant qualities or features of the area. That is, they must be viewed as operating to protect the general environment of the area, and not merely the features which may be of outstanding universal value within the contemplation of the Convention. With s. 16(1)(d) the legal criterion upon which it is posited is general environmental protection, for it renders unlawful any act "prescribed for the purposes of this paragraph, being an act capable of adversely affecting the protected area " (emphasis added). The same general environmental protection is extended by s. 16(2) and (3) by rendering unlawful the actions of permitting, authorizing, directing or ordering any act which is unlawful under sub-s. (1) (except with the consent of the Minister) and in the case of an owner or occupier of land, the failure to take reasonable steps to prevent the doing of any act proscribed by s. 16(1).

Because s. 16 must be viewed as affording general environmental protection rather than protection of the qualities and features which may be of outstanding universal value, it is not on the material before the Court reasonably capable of being viewed as appropriate or adapted to the circumstance that the areas may be or contain areas constituting part of the world heritage. It cannot on the available material be characterized as a law with respect to external affairs. Nor, in my view, is that conclusion altered by the possibility that the proscription may be relaxed with the consent of the Minister.

By s. 18 the Minister's consent to an act otherwise unlawful is to be given or withheld having "regard only to Australia's obligations under the Convention". The criterion for the giving or withholding of consent appears to me to lack clarity. Clearly, s. 18 would require the granting of consent to an act necessary or desirable for the protection of qualities or features which give the land the characteristic that it may be or contain a world heritage area. I do not think that s. 18 imports that consent shall be given unless the act threatens those qualities or features. However, even if it were to be so read, on the material before the Court, s. 16 must still be viewed as operating to proscribe activities whether or not they pose a threat to the qualities or features of possible outstanding universal value at least until such time as consent is given. That is different both in legal effect and in operation from a law proscribing only activities which threaten the qualities or features which give the area the characteristic that it may be or contain a world heritage area.

It may be that evidence could be called to establish that the activities proscribed by one or all of pars. (a), (b) and (c) of s. 16(1) constitute a threat or may reasonably be apprehended to constitute a threat to the features of the protected area which may be of outstanding universal value if undertaken anywhere in the protected area. Section 16(1)(d) is in a different position. It operates by reference to acts capable of adversely affecting the protected area. Even if the qualities and features which give the protected area the quality that it may be a world heritage area were present throughout the entire area - and the evidence is that they are not - proscription by reference to general environmental considerations cannot be viewed as appropriate or adapted to the protection of the features which give to the protected area the quality that it may be a world heritage area. I would, but for the fact that the majority of the Court is of the view that the Act is entirely valid, stand the matter over to enable the presentation of such further evidence as the parties may wish to put before the Court in support of the validity of s. 16(1)(a), (b) and (c). That course being unnecessary, it is sufficient to answer the first question in the case stated as follows: "Section 16(1)(d) and s. 16(2) and (3) (to the extent that they operate by reference to s. 16(1)(d)) are invalid. On the materials before the Court s. 16(1)(a), (b) and (c) and s. 16(2) and (3) (to the extent that they operate by reference to s. 16(1)(a), (b) and (c)) must be held to be invalid."

In the view that I have formed it is unnecessary to answer the second question in the case stated. However, it is appropriate that I state that I agree that the second question should be answered in the manner proposed in the judgment of Mason C.J. and Brennan J.