The Commonwealth Government passed an Act establishing a Commission of Inquiry to determine whether particular areas in Tasmania should be nominated for inclusion on the World Heritage List (Specifically, the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth)). The Act prohibited logging activity in the area for the duration of the inquiry. In reliance on this power, the federal Minister for the Environment sought to restrain the defendants (the Forestry Commission, a statutory authority created under a Tasmanian Act) and Gunns Kilndried Timber Industries from carrying out logging activity during the interim period under the Act. The defendants argued that the Act was unconstitutional.

The issue for the High Court was whether the relevant provisions of the Act were a valid exercise of the Commonwealth’s external affairs power under the Constitution, which enables the government to implement treaties by domestic legislation. Here, the question was whether the Act was a valid implementation of the Convention for the Protection of World Cultural and National Heritage (‘the Convention’). The defendants argued that the relevant provisions were beyond power on the following bases:

• The Convention did not require Australia to take any measures for the protection of property which had yet been identified by Australia as world heritage property;
• The Act went beyond what was capable of being reasonably considered to be appropriate and adapted to securing the objective of identifying world heritage property (This was the test developed by the High Court in the Tasmanian Damn Case - Commonwealth v Tasmania (1983) 158 CLR 1) and
• The Act breached the implied prohibition on discrimination against a state because it singled out an area of a particular state.

A majority of the High Court upheld the legislation as a valid implementation of the Convention under the external affairs power. They held that the taking of action to protect particular property pending resolution of its status as world heritage was a valid implementation of the Convention because it was incidental to the obligations to identify and protect such property. In the circumstances, the prohibitions on logging operations on an interim basis did not go beyond what was reasonably considered to be appropriate and adapted to the attainment of the objectives of the Convention. The activities prohibited could damage to potential world heritage and their prohibition was only for the duration of the inquiry. Finally, the Act was not discriminatory because the obligation to protect world heritage would necessarily fall to be discharged with respect to particular properties and ‘a law which is calculated merely to discharge Australia’s treaty obligations with respect to a particular property does not invalidly discriminate against the State in whose territory it is located.’

• The full decision is available on Austlii