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Richardson V Forestry Commission.Pdf High Court of Australia Mason C.J. Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Richardson v Forestry Commission (88/007) [1988] HCA 10 ORDER Order that until the hearing and determination of this action, or further order, each defendant by itself, its servants or agents, be restrained from doing any of the following acts during the interim protection period as defined in the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Cth, namely: (a) for the purposes of, or in the course of carrying out, forestry operations, killing, cutting down or damaging any tree in, or removing any tree or part of a tree from, the area defined in the said Act as the protected area; or (b) constructing or establishing any road or vehicular track within the said protected area, except with the consent in writing of the plaintiff given pursuant to the Act. That until the hearing and determination of this action, or further order, the first-named defendant by itself, its servants or agents be restrained from doing any of the following acts during the said interim protection period, namely, permitting, authorizing, directing or ordering or purporting to permit, authorize, direct or order any person to do any act referred to in sub-pars. 1(a) or 1(b) hereof, except with the consent in writing of the plaintiff given pursuant to the said Act. And it is further ordered that the costs of this application be the plaintiff's costs in the action. Answer the questions as follows: 1. Q. To what extent, if any, is the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) invalid? A. The Act is valid. 2. Q. In point of law is any, and if so, which, of the allegations made: (i) in par. 17 of the defence of the first defendant (ii) in par. 15 of the defence of the second defendant (iii) in par. 16 of the defence of the second defendant, an answer to the relief claimed by the plaintiff against the respective defendants? A. (i) Paragraph 17 of the defence of the first defendant is not an answer to the relief claimed. (ii) Paragraph 15(b) of the defence of the second defendant is not an answer to the relief claimed. (iii) Not answered. Order that the defendants pay the plaintiff's costs of the hearing and determination of the questions reserved for the consideration of the Full Court. Cur. adv. vult. 1987, Sept. 3 Mason C.J. delivered the following written judgment:— This is an application for an interlocutory injunction restraining the defendants in the action from doing certain acts alleged to be unlawful under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Cth ("the Act"). The Act provides for the establishment of a Commission of Inquiry into the Lemonthyme and Southern Forests which are situated in fairly close proximity to and to the east of the World Heritage Area in Tasmania. The Act seeks to give effect to Australia's obligations under the Convention for the Protection of the World Cultural and Natural Heritage which is set out in the Schedule to the World Heritage Properties Conservation Act 1983 Cth. Articles 3 and 4 of that Convention provide: 3. It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in articles 1 and 2 above. 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 in 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 Article 5 provides: 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 The "cultural heritage" as defined by Art. 1 includes under the heading "monuments": "elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science." The "cultural heritage" as so defined also includes under the heading "sites": "works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view." The "natural heritage" as defined by Art. 2 embraces natural features consisting of: physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty. Section 4 of the Act states that the: object of this Act is to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention, in particular the obligations to: (a) identify and delineate the natural heritage and cultural heritage; and (b) take appropriate measures to protect and conserve that heritage. With this object in view, s. 7(1) provides for the appointment of the Commission of Inquiry as soon as practicable after the commencement of the Act, which occurred on 8 May 1987. The Commission has been appointed and is now conducting its inquiry. The Commission is required to report the results of its inquiry to the Minister for the Environment and the Arts before the end of the inquiry period (s. 8(4)) which is the period ending one year after 8 May 1987: s. 3. As a preliminary to understanding the scope of the inquiry to be undertaken by the Commission, it is necessary to look at the definition of the expression qualifying area in s. 3. It is defined to mean: so much of any area that is: (a) wholly or partly within the Lemonthyme area or the Southern Forests area; and (b) and world heritage area or an area that contributes to the integrity or values of: (i) a world heritage area that is wholly or partly within the Lemonthyme area or the Southern Forests area; or (ii) a nominated world heritage area; as is not a nominated world heritage area. The expression "world heritage area" is defined to mean "an area that forms part of the cultural heritage or the natural heritage". The principal matters into which the Commission is required to report are (s. 8(1)(a) and (b)) (a) whether there are any qualifying areas; (b) where there are qualifying areas: (i) whether there are, within Tasmania outside the qualifying areas and national estate areas, alternative forestry resources capable of exploitation without detriment to the Tasmanian forestry industry, and which it would be environmentally and economically prudent and feasible to exploit; (ii) where there are not — whether there are within Tasmania (including national estate areas other than nominated world heritage areas) outside the qualifying areas, alternative forestry resources capable of exploitation without detriment to the Tasmanian forestry industry; and (iii) where there are not — which of the means of exploiting the forestry resources of Tasmania (including the qualifying areas but not including any nominated world heritage areas) without causing any detriment to the Tasmanian forestry industry will cause least damage to the qualifying areas. There are other related matters into which the Commission is required to inquire: s. 8(1)(c), (d) and (e). The Commission is directed to give priority to identifying any part or parts of the Lemonthyme area and the Southern Forests area that are definitely not qualifying areas and to report to the Minister as soon as practicable the identification of any such part or parts, specifying the area concerned: s. 8(5). Part III of the Act deals with the interim protection of the protected area which is defined by s. 3 to mean the Lemonthyme area and the Southern Forests area other than any part that is an excluded area. Section 16 provides: (1) Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, to do any of the following acts during the interim protection period: (a) for the purposes of, or in the course of carrying out, forestry operations, to kill, cut down or damage a tree in, or remove a tree or a part of a tree from, the protected area; (b) to construct or establish a road or vehicular track within the protected area; (c) to carry out any excavation works within the protected area; (d) to do any other act prescribed for the purposes of this paragraph, being an act capable of adversely affecting the protected area. (2) Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, during the interim protection period to permit, authorise, direct or order or to purport to permit, authorise, direct or order any person to do an act that is unlawful under subsection (1).
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