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Thursday, 13 September 1984
Page: 962

Senator MACKLIN —I ask the Attorney-General a question about the Government's decision on the fate of the Daintree Rainforest. Does the Attorney-General concede that the Government has powers under the World Heritage Properties Conservation Act to regulate to save the Daintree region now that it has been recognised as natural heritage 'of outstanding universal significance'? Why did the Attorney, in his advice to the Minister for Home Affairs and Environment, make references to what the High Court of Australia may or may not do in response to a government regulation? Is it not the proper and prudent course of action for the Government to regulate in accordance with its powers and the recommendations of its environmental advisers and then, should a challenge arise , allow the High Court to determine its response free of government interference ?

Senator GARETH EVANS — With the utmost respect to Senator Macklin, it is an extraordinary proposition that any government should embark upon a course of action without having regard to the legal consequences of such action, the possibility or probability of a challenge and the estimate of the likely success of that challenge. That is in the context of legislating or regulating in a way that may be unconstitutional. The point is even stronger when the matter in issue is essentially a factual one-and I think that is the matter at issue here- as to whether there could be something that could properly be described as irreparable damage occurring or which may occur in the future. The Government has made a judgment for better or worse. I appreciate that reasonable people may differ about these things. But quite apart from the policy considerations, I was addressing myself to the purely legal considerations in the letter to the Minister for Home Affairs and Environment of which Senator Chipp has a copy. I do not think it is possible for me to add anything more to that side of the equation which is the sole aspect for which I have any portfolio responsibility.

Senator MACKLIN —Mr President, I ask a supplementary question. I refer to the first part of my question when I asked whether the Attorney-General would concede that the Government has powers under the World Heritage Properties Conservation Act to regulate to save the area. He did not answer that part of the question.

Senator GARETH EVANS —There are certain powers available under the legislation which may or may not be applicable to the circumstances of this particular case as a threshold question. It is a matter of determining whether the criteria spelt out in that legislation can be satisfied. The mere fact that there are opinions to that effect by the Heritage Commission or other expert advisers does not finally determine that matter. As I have indicated previously in response to questions of this kind, difficult and delicate questions of legal judgment are involved in matters of this kind and it is simply not appropriate, even if it were possible under the Standing Orders, for me to give such opinions during Question Time.