Tasmanian Wilderness Society Inc v Fraser [1982] HCA 37

High Court of Australia Mason J. Tasmanian Wilderness Society Inc v Fraser [1982] HCA 37

ORDER Application dismissed. Costs will be defendants' costs in the action. Grant leave to the plaintiffs to amend the proceedings by joining Robin Trevor Gray as an additional defendant and by claiming interlocutory and permanent relief against him in the same terms as that claimed against the first two defendants.

Cur. adv. vult.

Mason J. delivered the following written judgment:—

June 18 Mason J

This is an application for interlocutory injunctions relating to the consideration next week by the Australian Loan Council (which I shall call the "A.L.C.") of a submission by the State of Tasmania for approval for the borrowing of funds for the implementation of the Gordon below Franklin Hydro-Electric Power Development Scheme (the "Scheme"). The three plaintiffs are the Tasmanian Wilderness Society Inc., and two companies. The first plaintiff is a society whose objects are to preserve and protect the wilderness of Tasmania. It has between 3,000 and 4,000 members of whom approximately one-half are residents of that State. It also has a limited commercial interest in the region known as South-West Tasmania in selling articles relating to the region. The two companies are tourist operators in the same region. One conducts commercial tourist services by boat up the Gordon River from Macquarie Harbour. The other provides commercial wilderness tours in the wilderness region of South-West Tasmania. The defendants are the Prime Minister, the Commonwealth Treasurer and the Commonwealth. It is agreed that the Treasurer is the Commonwealth representative at the next A.L.C. meeting and that the Prime Minister will attend in a capacity styled as observer.

Although the relief sought affects the State of Tasmania and the A.L.C., neither that State nor the members of the A.L.C. other than the second defendant have been joined as defendants in the actions or as respondents to the present application. The plaintiffs have applied for leave to amend by joining the Premier of the State, who is a member of the A.L.C., but attempts to have him accept service informally have not met with success. They asked me to make an order under O. 16, r. 2 of the High Court Rules, that the first two defendants, or one of them, represent the other members of the A.L.C. I declined to make this order because it seemed to me that the interest of the first two defendants in this action is different from other members of the A.L.C. and because the interests of members of the A.L.C. with respect to the Tasmanian submission may differ as between themselves.

The Scheme involves the construction in the region known as South-West Tasmania of a dam on the Gordon River below its junction with the Franklin River and power stations, roads, power lines and other works. According to the plaintiffs' evidence, the Scheme, if implemented, will adversely affect South-West Tasmania, and have a devastating effect on the region which is noted for the singular beauty of its wilderness area. It is notorious that the Scheme is a matter of continuing controversy, both in Tasmania and in mainland Australia. The merits of that controversy are not an issue in these proceedings. I am not called on to decide whether the Scheme is a desirable or a deleterious development and I express no opinion upon that thorny question.

The region, "South-West Tasmania", has been entered in the Register kept pursuant to s. 22 of the Australian Heritage Commission Act 1975 Cth (which I shall call the " Heritage Act "). Moreover it has been submitted by the Commonwealth for inclusion in the World Heritage List pursuant to the terms of the Convention for the Protection of the World Cultural and Natural Heritage adopted at a general conference of UNESCO in 1972. The Commonwealth has ratified the Convention but it has not been ratified legislatively or enacted as law in this country. The plaintiffs submit that the Heritage Act and the Environment Protection (Impact of Proposals) Act 1974 Cth (which I shall call the " Environment Protection Act ") enact the provisions of the Convention as law in Australia and implement its provisions as part of our domestic law in exercise of the legislative power conferred by s. 51(xxix). The submission is quite without foundation. Neither statute makes any reference to the Convention; none of the particular statutory provisions precisely or even substantially reflect the articles of the Convention. Each statute seems to have been cast with the draftsman's eye firmly fixed on the limits of Parliament's legislative powers apart from s. 51(xxix). This reinforces my strong impression that neither statute was intended to implement the articles of the Convention by enacting them as domestic law in Australia. In these circumstances a breach, if there be one on the part of Australia, of its international obligations is not a matter justiciable at the suit of a private citizen.

It is common ground that none of the defendants nor the A.L.C. has taken any step with a view to inquiring whether there is any feasible and prudent alternative to the implementation of the Scheme or whether all measures that can reasonably be taken to minimize the adverse effect of the Scheme will be taken.

In these circumstances the plaintiffs allege that s. 30(1) of the Heritage Act imposes a duty on each of the first two defendants to " give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him for ensuring that the Department administered by him or any authority of the Commonwealth in respect of which he has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register ". The plaintiffs submit that the A.L.C. is an "authority of the Commonwealth" in respect of which the first two defendants have "ministerial responsibilities" within the meaning of the sub-section and that, accordingly, they are under a duty to do all such things as, consistently with any relevant laws, can be done by them for ensuring that the A.L.C. does not take any action that adversely affects the region. In the situation which will arise before the A.L.C. next week it is contended that the first two defendants are under a statutory obligation to refrain from voting on the Tasmanian submission in respect of the Scheme and that this obligation should be enforced by injunction. In passing I should say that the first defendant, attending in the capacity of observer only, has no vote. It is also said that s. 30(2) imposes a like obligation on the A.L.C. itself as such an authority not to take such action and that it should be restrained from approving the submission.

There is an exclusive and inclusive definition of the expression authority of the Commonwealth in s. 3(1) of the Heritage Act. It is expressed to be subject to any contrary intention and is in these terms:

"authority of the Commonwealth" does not include the Commission or a court, but includes an authority of a Territory and all authorities and bodies (not being companies or societies) established by or appointed under the laws of the Commonwealth and of the Territories and also includes a company in which the whole of the shares or stock, or shares and stock carrying more than one-half of the voting power, is or are owned by or on behalf of the Commonwealth.

The A.L.C. is a body established by the Financial Agreement, which, as the decision of this Court in Sankey v. Whitlam [1] demonstrated, is not a law of the Commonwealth. The contracting parties were the Commonwealth and the States. Although the Agreement was approved by the Financial Agreement Act 1928 Cth, as amended, the operative provisions of that Act make no reference to the A.L.C. and do not touch its constitution or membership. The Agreement was expressed to be subject to the approval of the Parliaments of the Commonwealth and the States (cl. 1). The approval and validation of the Agreement was examined in detail in Sankey v. Whitlam [2] . The reasoning in the judgments in that case is inconsistent with the notion that the various statutes which approved or validated the Agreement established the A.L.C. Indeed, the definition of "The Loan Council" in cl. 2 of the Agreement states that it means "the Australian Loan Council created in pursuance of this Agreement". The Agreement contains detailed provisions respecting the constitution, membership, functions and procedures to be followed by the A.L.C. Section 105A of the Constitution provides for the making of such an Agreement and confers legislative power for the validation of, and for the carrying out of, such an Agreement. And s. 105A(5) protects the Agreement and any variation of it from the impact from the Constitutions of the Commonwealth and the States and from the laws of the Commonwealth and the States. The agreement remains as a contract, yet it is a contract entrenched by the Constitution, subject only to its being varied or rescinded by the parties (see s. 105A(4)).

1. (1978) 142 C.L.R. 1. 2. (1978) 142 C.L.R., at pp. 85-91.

I do not accept the argument that because the Agreement is approved and validated by Commonwealth statutes the A.L.C. is in some way established by those statutes.

It would perhaps be a mistake to attach too much importance to a definition which does no more than include and exclude. But, when I look to the expression "authority of the Commonwealth" apart from the definition, there is nothing in it that suggests that it embraces the A.L.C. As I have said, the A.L.C. was brought into existence not by the Commonwealth alone but by the Agreement to which the Commonwealth and the States were all parties. Its function, in one sense supra-governmental, is to make definitive arrangements, essentially on an annual basis, for borrowing and funding by the seven Governments. In the federal context in which it operates it cannot be described with any regard to accuracy as an "authority of the Commonwealth". Indeed, I suspect that, if there be a subject on which the members of the A.L.C. stand united, it would be in repelling the suggestion that it is described accurately as being an "authority of the Commonwealth".

The language of s. 30 strongly supports this view. I shall take sub-s. (1) as an example. In speaking of the Minister it seeks to impose on him a duty to ensure that "the Department administered by him" and "any authority of the Commonwealth in respect of which he has ministerial responsibilities" does not take the proscribed action. The sub-section lays the duty on the Minister in relation to his department and in relation to any Commonwealth statutory authority for which he is made the responsible Minister by the constituting statute or by administrative arrangement. They seem to be the two situations which the draftsman had in mind. The reference here and elsewhere to "relevant laws" may be a reference to laws of the Commonwealth which operate to limit the Minister's freedom of action, though I am inclined to think that it is used in contradistinction to "laws of the Commonwealth" and to pick up as well any State laws which operate in a general way to limit the Minister's freedom of action. The specific reference in sub-s. (4) to "a recommendation in relation to direct financial assistance granted, or proposed to be granted to a State" clearly contemplates tied grants under s. 96 of the Constitution. Plainly it was intended to bring decisions and recommendations in that area within the purview of the section. But A.L.C. decisions are further removed from the taking of action and the making of decisions by the Commonwealth. And, as I see it, the statute makes no effort to cover A.L.C. decisions in the same way as it specifically includes s. 96 decisions and recommendations. There is, of course, a question whether the Commonwealth Parliament could legislate to impose a regime of this kind on the A.L.C. This is a question which I pass by.

Reflection on the possible consequences which would flow from the application of s. 30(1) to a Commonwealth Minister representing the Commonwealth at an A.L.C. meeting in relation to his participation in the business of the meeting also leads me to the conclusion that s. 30 was not intended to have such an application. The Minister is not merely acting in his capacity as a Minister; in one sense he is representing the Commonwealth and in another he is acting as a member of the A.L.C. What he does is outside the realm of administering his department and taking responsibility for a statutory authority. And it is scarely to be supposed that Parliament intended to impose upon the Minister as a member of the A.L.C. a duty to inquire about feasible and prudent alternatives and measures to minimize adverse effect on places in the Register in relation to State proposals brought before the A.L.C. in respect of which the Commonwealth itself has no responsibility or legislative power. To impose such an obligation would be to disable the Minister from participating in proceedings in relation to such a proposal unless he satisfies himself of the matters mentioned in sub-s. (1) and disturb and dislocate the course of the A.L.C.'s important business.

I have some difficulty with the notion that voting by a Commonwealth Minister at an A.L.C. meeting or approval by the A.L.C. of a submission for funding amounts to the taking of any action within sub-ss. (1) and (2) that adversely affects South-West Tasmania. Sub-section (4) is designed to alleviate this difficulty, but I am not convinced that it overcomes all the problems.

It was suggested that sub-s. (1) imposes an obligation on a Minister attending the meeting to take steps to ensure that the advice given to him by his department in connexion with matters to be dealt with at the meeting does not adversely affect South-West Tasmania. The answer is that advice of this kind does not amount to the taking of action which adversely affects the region and that the Minister cannot be expected to oversee the preparation of advice which is tendered to him by his officers.

My conclusion therefore is that the case based on the Heritage Act fails.

The plaintiff also called in aid the provisions of the Environment Protection Act, especially ss. 5 and 8. The reach of that Act is similar in important respects to that of the Heritage Act. Section 8(1), for example, imposes duties on a Minister for ensuring that approved procedures will be given effect to "in and in connexion with matters dealt with by the Department administered by him and that any authority of Australia in relation to which he has ministerial responsibilities observes" the procedures. The expression "authority of Australia" is defined by s. 3 in the same way as "authority of the Commonwealth" is defined in the Heritage Act. Section 5(1) sets out in general terms various classes of action, decision and recommendation in relation to which environmental factors must be examined and taken into account. However, s. 5(2) explicitly provides that sub-s. (1) extends to matters of the kind already mentioned "in relation to direct financial assistance granted, or proposed to be granted, to the States". There is accordingly, once again, an express provision applying the statutory regime to tied grants made under s. 96 of the Constitution without any corresponding attempt to reach the A.L.C. or Commonwealth participation in that body's deliberations.

Generally speaking, the reasons which I have expressed for rejecting the case based on the Heritage Act have like force in relation to the Environment Protection Act. In one respect, however, the consequence of the plaintiffs' argument on the latter Act, if correct, would be more far-reaching. It would mean that the Treasurer, before voting on many proposals at an A.L.C. meeting, would need to ensure that environmental impact statements were formulated in accordance with the Act. Nothing could be better calculated to make confusion worse confounded.

In the result I have reached the clear conviction that the suggested legal bases for interlocutory relief have no firm foundation and I shall therefore dismiss the application without referring any questions of law to the Full Court. Counsel did not invite me to consider the questions usually debated on an interlocutory application and I therefore refrain from dealing with them except to make explicit what is already implicit, that the plaintiffs have not established a prima facie case or the existence of a serious question to be tried or argued.

There is one last matter to which I should refer. There is no direct evidence that the second defendant intends or threatens to vote in favour of the Tasmanian submission. To overcome this gap the plaintiffs rely on correspondence from which they say an inference arises. There is a letter dated 5 April 1982 from the first defendant to Mr. MacKenzie M.P., in which the first defendant said "As I made clear in the Parliament on 23 February decisions on South-West Tasmania are the responsibility of the Tasmanian Government." And there were letters dated 10 June 1982 from the plaintiffs' solicitors to the first and second defendants alleging a failure to comply with the requirements of the two statutes as applied to the Tasmanian submission to the A.L.C. to which the defendants have not yet replied. I am not inclined to draw from this and other materials in evidence any inference as to how the second defendant, the Treasurer, will vote at the A.L.C. meeting. The consequence is that the plaintiffs do not establish that there is an intention or threat by the second defendant to carry out the action which they seek to restrain.

But this is by the way — the case fails for more fundamental reasons.

I dismiss the application. Costs will be the defendants' costs in the action. Grant leave to the plaintiffs to amend the proceedings by joining Robin Trevor Gray as an additional defendant and by claiming interlocutory and permanent relief against him in the same terms as that claimed against the first two defendants.