World Heritage Properties Conservation Act 1983
Encyclopedia
The World Heritage Properties Conservation Act 1983 was an Act
of the Parliament of Australia
which provided for certain protections for World Heritage listed places.
The validity of the Act was considered by the High Court of Australia
in Commonwealth v Tasmania
, also known as the Tasmanian Dams case. That case found several provisions of the Act to be invalid, but most of its major provisions were held to be valid.
The Act was repealed in 1999, and replaced by parts of the Environment Protection and Biodiversity Conservation Act 1999
.
, Barry Cohen
.
The Tasmanian Dams case
(1983) revolved around the validity of the Act. The High Court of Australia
was asked separate questions about the validity of:
On the first part of question, the court held that s 6(1), (2)(b) and (3) were valid, but that it was not necessary to determine the validity of the other subsections. It held that s 9(1)(h) was valid, but that the remaining subsections of s 9(1) and (2) were invalid. On the second part of the question, the court found that s 7 was valid, and that s 10(1) and (4) were valid (the other parts of s 10 being unnecessary to consider). On the third part of the question, the court held both s 8 and s 11 invalid. It held that it was not necessary to answer the fourth part.
The Act was repealed in 1999 by Schedule 6 of the Environmental Reform (Consequential Provisions) Act 1999, as part of the reforms that saw the introduction of the Environment Protection and Biodiversity Conservation Act 1999
, which replaced several prior pieces of environmental legislation. It ceased to have effect on 16 July 2000.
to make proclamations declaring that those sections applied to certain eligible properties or sites. The three pairs of sections were set up to make use of three different powers available under the Constitution of Australia
: the external affairs power, the corporations power and the race power.
Section 6 concerned sites of natural or cultural heritage value. It allowed proclamations to be made with respect to World Heritage nominated sites, sites which Australia was otherwise obliged to protect under international law, sites that were otherwise a matter of international concern, or sites "part of the heritage distinctive of the Australian nation". These overlapping provisions were designed to touch on different aspects of the external affairs power
in the Constitution of Australia
, and the last of these was designed to touch on the implied nationhood power.
If the Governor-General were satisfied that a property falling under the above definitions "is being or is likely to be damaged or destroyed" then they could make a proclamation with respect to that property. Once a proclamation was made under section 6, certain acts were prohibited by section 9, including carrying out excavation
works, exploratory drilling, constructing "a building or other substantial structure" and felling any trees on the site.
Section 7 was far broader than section 6; it allowed the Governor-General to make proclamations with respect to "any identified property [that] is being or is likely to be damaged or destroyed". However section 10, which set out the consequences of a proclamation under section 7, was narrow in its application; while it covered the same types of acts as section 9, it only made those acts unlawful if performed by certain corporation
s, namely foreign or trading corporations (that is, those corporations subject to the corporations power
in the Constitution). Section 10(4) went further, and specifically made those same acts unlawful if done by such a corporation "for the purposes of its trading activities".
Section 8 allowed proclamations to be made with respect to sites of significance to Indigenous Australians
, if either the sites themselves, or any artefacts or relics on them, were or were likely to be damaged or destroyed. Section 11 covered the same acts as described in sections 9 and 10, and rendered them unlawful if done with respect to properties subject to proclamations under section 8.
Once proclamations were made, they had to be tabled before both houses of the Parliament of Australia
in accordance with the procedures set out in section 15. Proclamations could be revoked by the Governor-General once the threat of damage or destruction had passed.
Sections 9, 10 and 11 each provided that acts normally prohibited by those sections would not be unlawful if done with the permission of the relevant Minister (then titled the Minister for Home Affairs and the Environment
); section 13 set out the procedures to be followed by the Minister in granting such consent. Section 18 allowed the power to grant consent to be delegated.
and the Federal Court of Australia
to grant injunction
s restraining acts unlawful under sections 9, 10 or 11; such injunctions could be applied for by the Attorney-General of Australia
, or by any "interested person" (which was defined in subsections 3 through to 5 of section 14).
.
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
of the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
which provided for certain protections for World Heritage listed places.
The validity of the Act was considered by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in Commonwealth v Tasmania
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
, also known as the Tasmanian Dams case. That case found several provisions of the Act to be invalid, but most of its major provisions were held to be valid.
The Act was repealed in 1999, and replaced by parts of the Environment Protection and Biodiversity Conservation Act 1999
Environment Protection and Biodiversity Conservation Act 1999
The Environment Protection and Biodiversity Conservation Act 1999 is an Act of the Parliament of Australia that provides a framework for protection of the Australian environment, including its biodiversity and its natural and culturally significant places...
.
History
The World Heritage Properties Conservation Bill was introduced on 21 April 1983, by the then Minister for Home Affairs and the EnvironmentMinister for the Environment, Heritage and the Arts (Australia)
The current Australian Minister for Sustainability, Environment, Water, Population and Communities is Tony Burke, who took over from Peter Garrett . The Minister and department change took effect in the Second Gillard Ministry on 14 September 2010...
, Barry Cohen
Barry Cohen
Barry Cohen AM is a former Australian Labor politician. He was a minister in the government of Bob Hawke.-Biography:He was born in Griffith, New South Wales and educated at Griffith High School, Sydney Grammar School and North Sydney Technical High School. He received a Bachelor of Arts from the...
.
The Tasmanian Dams case
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
(1983) revolved around the validity of the Act. The High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
was asked separate questions about the validity of:
- sections 6 and 9,
- sections 7 and 10,
- sections 8 and 11, and
- section 17.
On the first part of question, the court held that s 6(1), (2)(b) and (3) were valid, but that it was not necessary to determine the validity of the other subsections. It held that s 9(1)(h) was valid, but that the remaining subsections of s 9(1) and (2) were invalid. On the second part of the question, the court found that s 7 was valid, and that s 10(1) and (4) were valid (the other parts of s 10 being unnecessary to consider). On the third part of the question, the court held both s 8 and s 11 invalid. It held that it was not necessary to answer the fourth part.
The Act was repealed in 1999 by Schedule 6 of the Environmental Reform (Consequential Provisions) Act 1999, as part of the reforms that saw the introduction of the Environment Protection and Biodiversity Conservation Act 1999
Environment Protection and Biodiversity Conservation Act 1999
The Environment Protection and Biodiversity Conservation Act 1999 is an Act of the Parliament of Australia that provides a framework for protection of the Australian environment, including its biodiversity and its natural and culturally significant places...
, which replaced several prior pieces of environmental legislation. It ceased to have effect on 16 July 2000.
Provisions
The core of the legislation provided for a system of proclamations: sections 9, 10 and 11 set out certain acts which were unlawful if done with respect to properties or sites to which the sections applied, and sections 6, 7 and 8 respectively allowed the Governor-General of AustraliaGovernor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
to make proclamations declaring that those sections applied to certain eligible properties or sites. The three pairs of sections were set up to make use of three different powers available under the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
: the external affairs power, the corporations power and the race power.
Section 6 concerned sites of natural or cultural heritage value. It allowed proclamations to be made with respect to World Heritage nominated sites, sites which Australia was otherwise obliged to protect under international law, sites that were otherwise a matter of international concern, or sites "part of the heritage distinctive of the Australian nation". These overlapping provisions were designed to touch on different aspects of the external affairs power
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
in the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, and the last of these was designed to touch on the implied nationhood power.
If the Governor-General were satisfied that a property falling under the above definitions "is being or is likely to be damaged or destroyed" then they could make a proclamation with respect to that property. Once a proclamation was made under section 6, certain acts were prohibited by section 9, including carrying out excavation
Earthworks (engineering)
Earthworks are engineering works created through the moving or processing of quantities of soil or unformed rock.- Civil engineering use :Typical earthworks include roads, railway beds, causeways, dams, levees, canals, and berms...
works, exploratory drilling, constructing "a building or other substantial structure" and felling any trees on the site.
Section 7 was far broader than section 6; it allowed the Governor-General to make proclamations with respect to "any identified property [that] is being or is likely to be damaged or destroyed". However section 10, which set out the consequences of a proclamation under section 7, was narrow in its application; while it covered the same types of acts as section 9, it only made those acts unlawful if performed by certain corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s, namely foreign or trading corporations (that is, those corporations subject to the corporations power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
in the Constitution). Section 10(4) went further, and specifically made those same acts unlawful if done by such a corporation "for the purposes of its trading activities".
Section 8 allowed proclamations to be made with respect to sites of significance to Indigenous Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
, if either the sites themselves, or any artefacts or relics on them, were or were likely to be damaged or destroyed. Section 11 covered the same acts as described in sections 9 and 10, and rendered them unlawful if done with respect to properties subject to proclamations under section 8.
Once proclamations were made, they had to be tabled before both houses of the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
in accordance with the procedures set out in section 15. Proclamations could be revoked by the Governor-General once the threat of damage or destruction had passed.
Exceptions
Section 12 provided certain statutory exceptions to the prohibitions in sections 9, 10 and 11, to do with acts permitted under management plans in other federal environment legislation, and acts permitted under state or territory law.Sections 9, 10 and 11 each provided that acts normally prohibited by those sections would not be unlawful if done with the permission of the relevant Minister (then titled the Minister for Home Affairs and the Environment
Minister for the Environment, Heritage and the Arts (Australia)
The current Australian Minister for Sustainability, Environment, Water, Population and Communities is Tony Burke, who took over from Peter Garrett . The Minister and department change took effect in the Second Gillard Ministry on 14 September 2010...
); section 13 set out the procedures to be followed by the Minister in granting such consent. Section 18 allowed the power to grant consent to be delegated.
Enforcement
Section 14 granted jurisdiction to both the High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
and the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
to grant injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s restraining acts unlawful under sections 9, 10 or 11; such injunctions could be applied for by the Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
, or by any "interested person" (which was defined in subsections 3 through to 5 of section 14).
Compensation
Section 17 provided for a compensation scheme, in the event that any proclamation should amount to an acquisition of property within the meaning of section 51(xxxi) of the Australian ConstitutionSection 51(xxxi) of the Australian Constitution
Section 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia providing that the Commonwealth has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the...
.