Commonwealth of Australia v State of Tasmania

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 01 July 1983
• Date: 01 July 1983

Australia, High Court.

(Gibbs C. J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.)

Commonwealth of Australia and Another

and

State of Tasmania and Others

International law in general Relation to municipal law Treaties Federal State Effect of conclusion of treaty by Federal Government on legal powers of States The law of Australia

States as International persons In general Sovereignty and independence Conduct of foreign relations Foreign relations power in a federal State Effect of conclusion of treaty by Federal Government on legal powers of States The law of Australia

State responsibility Nature and kinds of For taking of, or interference with, property Acts and regulations prohibiting construction of dam Restriction of use of property Whether a taking Acquisition of property on just terms What constitutes acquisition Substance of property Whether system of compensation fair and acceptable The law of Australia

The individual in international law Minorities Protection of minorities Aboriginals Protection of cultural heritage Power to legislate for race for which special laws deemed necessary Whether law protecting cultural heritage of universal value also a special law The law of Australia

Treaties Conclusion and operation Constitutional limitations UNESCO Convention for the Protection of the World Cultural and Natural Heritage, 1972 Implementation National Parks and Wildlife Consolation Act 1975 (Commonwealth) Treaty-implementing power of federal legislature The law of Australia

Treaties Conclusion and operation Effect of municipal legislation UNESCO Convention for the Protection of the World Cultural and Natural Heritage, 1972 National Parks and Wildlife Conservation Act 1975 (Commonwealth) Prohibition of dam construction authorized by Tasmania Whether within power of federal legislature Whether an acquisition of property The law of Australia

Treaties Interpretation Principles and rules of interpretation UNESCO Convention for the Protection of the World Cultural and Natural Heritage, 1972, Articles 4 and 5 Undertaking to take appropriate measures Whether illusory obligation Relevance of travaux prparatoires The law of Australia

Treaties Interpretation Consideration of preparatory work UNESCO Convention for the Protection of the World Cultural and Natural Heritage, 1972, Articles 4 and 5 Undertaking to take appropriate measures Travaux prparatoires Whether admissible Whether displacing natural construction of the language The law of Australia

Treaties Conclusion and operation Operation and enforcement UNESCO Convention for the Protection of the World Cultural and Natural Heritage, 1972 Construction Consideration of travaux prparatoires Whether binding obligations imposed on State party

Implementation Constitutional limitations Federal States Treaty-implementing power of federal legislature National Parks and Wildlife Conservation Act 1975 (Commonwealth) and Regulations thereunder World Heritage Properties Conservation Act 1983 (Commonwealth) and Regulations thereunder Gordon River Hydro-Electric Power Development Act 1982 (Tasmania) Prohibition of dam construction Whether within Commonwealth powers External affairs power Commonwealth Constitution section 51(29) Whether mere implementation of treaty obligation enough Matter of international concern Effect of federal clause of Convention Extent of conformity required between treaty and legislation

Power to legislate for race for which special laws deemed necessary Commonwealth Constitution Section 51(26) Aboriginals Protection of cultural heritage of race Whether law protecting heritage of universal value also a special law Acquisition of property on just terms Whether an acquisition Restriction of use of property through regulations Whether a taking System of compensation The law of Australia

Summary: The facts:The UNESCO Convention for the Protection of the World Cultural and Natural Heritage was adopted in 1972, ratified by Australia in 1974 and came into force on 17 December 1975. The Convention provided for the identification and conservation of items of the cultural and natural heritage of outstanding universal value as defined in Article 1 and 2. Article 3 provided that it is for each State Party to identify and delineate the different properties situated on its territory mentioned in Article 1 and 2 above. With respect to such properties, Articles 4 and 5 provided in part, as follows:

Article 4

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

Article 5

To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall 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 this heritage

Article 34, a federal clause, provided that:

The following provisions shall apply to those State Parties to this Convention which have a federal or non-unitary constitutional system:

(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those State Parties which are not federal States;

(b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption.

In 1981 the then Premier of the State of Tasmania requested the then Prime Minister of Australia to nominate three parks in south-west Tasmania, together forming the Western Tasmania Wilderness National Parks, for inclusion on the World Heritage List maintained under the Convention. A nomination to this effect was submitted by the Commonwealth and maintained despite a request for its withdrawal by the next Tasmanian Premier, who took office with a change of government after a State election. After due inquiry the World Heritage Committee included the Parks in the World Heritage List under Article 11(2) of the Convention. Nevertheless, the Tasmanian Government, pursuant to the Gordon River Hydro-Electric Power Development Act 1982 (Tasmania), commenced work on a hydro-electric dam which would have inundated part of the nominated area (all of which was State Crown land). In entering the area on the World Heritage List, the World Heritage Committee expressed serious concern at the likely effect of the construction of a dam and recommended that the Australian authorities take all possible measures to protect the integrity of the property.

The National Parks and Wildlife Conservation Act 1975 (Commonwealth), section 69(1) empowered the Governor-General of Australia to make regulations to give effect, inter alia, to the World Heritage Convention. The Commonwealth Government which came to power after general elections in March 1983 procured the making of the World Heritage (Western Tasmanian Wilderness) Regulations under section 69(1). Subsequently the Commonwealth Parliament passed the World Heritage Properties Conservation Act 1983. The effect of the Regulations and the Act, together with proclamations made under it, was to render the building of the dam in the World Heritage area unlawful, on the basis, inter alia, that this was necessary or desirable for the purpose of giving effect to the Convention.

Proceedings were brought both by the Commonwealth and Tasmania to determine the validity of the Act and the Regulations under the Commonwealth's power. The Commonwealth relied on the constitutional power under section 51(29) to legislate with respect to external affairs and the power under section 51(26) to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. Tasmania denied these bases of constitutional power and further argued that the Commonwealth had effected an acquisition of property otherwise than on just terms as required by section 51(31) of the Constitution, The acquisition was said to result from the fact that the Acts so restricted the use of lands to which they applied and the rights over them that Tasmania was no longer the owner of the land.

Held: (by four votes to three, Gibbs C.J., Wilson and Dawson JJ. dissenting)The Acts, Regulations and Proclamations were valid exercises of Commonwealth legislative power under the external affairs power to the extent that they prohibited the construction of the dam in the World Heritage area.

Specific Findings on the World Heritage Convention

(1) Effect of Articles 4 and 5

Construed in accordance with applicable canons of internatiaonal law (including Articles 3133 of the Vienna Convention on the Law of Treaties) Articles 4 and 5 of the Convention imposed an international obligation on Australia to take appropriate measures for the preservation of the World Heritage area.

Per Gibbs C.J. and Wilson J., dissenting (Dawson J. not deciding): Articles 4 and 5 imposed no obligation on a country with respect to its own...