Richardson v Forestry Commission

[1988] HCA 10

High Court of Australia|1988-07-01|Before: Gaudron JJ

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1988-07-01

Before

Gaudron JJ

Source

Original judgment source is linked above.

Judgment (183 paragraphs)

[1]

The application of the test to the circumstances of this case is not without difficulty. It cannot be said to be inappropriate for the Commonwealth to establish the Commission in order to ascertain the extent of its obligation, if any, in relation to the protected area. Nor is it unreasonable to suppose that the Commission may find that some part of the protected area will satisfy the definition of cultural or natural heritage set out in the Convention. That being so, the question is whether the protective provisions contained in s. 16(1) are capable of being seen as reasonably appropriate and adapted to enabling the fulfilment of Australia's obligations to identify and delineate the world heritage. The extent of the protected area is very large. The effect of Pt III of the Act is that 4.5 per cent of the land area of Tasmania is for all practical purposes transferred to the control of the Commonwealth. It at once raises the question - can such a serious interference with the affairs of Tasmania be justified as appropriate means directed to the achievement of the end? If forestry operations constitute the main threat to any world heritage that might be found to exist in the protected area, as would appear from a general reading of the Act to be the case, was it reasonably necessary to extend the control over 283,300 ha. when the threat was confined, according to the evidence received by the Chief Justice in the interlocutory proceeding already referred to, to an area of approximately 300 ha? On the other hand, there are countervailing considerations. Despite the size of the protected area, much of it is a wilderness area and the real impact of the protective provisions will be confined to the forestry operations. The protective regime is limited in duration to not later than the duration of the inquiry (which must be concluded within a period of twelve months: s. 3, definition of inquiry period) and forty-two days: s. 3, definition of interim protection period. The Commission is obliged to give priority to identifying any part or parts of the protected area that are definitely not qualifying areas and to report thereon as soon as practicable: s. 8(5). Within 14 days after receiving such a report, the Minister shall arrange for notice to be published in the Gazette , specifying the area or areas identified in the report: s. 20. Upon publication of the notice in the Gazette , the area or areas specified therein cease to be part of the protected area: s. 3, definition of excluded area and protected area. Provision is made for the payment of compensation to a person who suffers loss or damage because he refrains from doing an act made unlawful by s. 16(1) or is otherwise restrained by injunction from doing the act: s. 19(1). The compensation provisions extend to an owner of any part of the protected area who suffers loss or damage because another person has refrained from doing an act made unlawful by s. 16(1): s. 19(2). The prohibitions under s. 16(1) are not absolute, being subject to the consent of the Minister: s. 16(1) and s. 18(1). The Minister may delegate his power to grant consent: s. 23. Finally, the exercise of the Minister's power to consent or to withhold consent is subject to judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 Cth or by resort to the original jurisdiction of this Court conferred by s. 75(v) of the Constitution: cf. also s. 39B, Judiciary Act 1903 Cth.

[5]

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.

[14]

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.

[16]

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".

[22]

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).

[23]

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.

[24]

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.

[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.

[27]

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.

[29]

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.

[34]

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.

[41]

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.

[179]

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).