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Friday, 7 September 1984
Page: 664

Senator CHIPP —I ask the Attorney-General a question concerning the Government's power to save areas such as the magnificent Daintree forest. I remind the Attorney-General of the photographs of the destruction at Daintree which he was good enough to look at in my office a day or two ago. Does the Attorney-General concede that the Government's power to act under the World Heritage Properties Conservation Act is not restricted to areas nominated for or on the World Heritage List but that the Government could regulate now to declare that the property forms a part of Australia's natural heritage because of its universal significance? I think that the Attorney-General has already conceded that point. I would like confirmation of that.

I admit that that action would be challengeable, but would not the effect be to halt immediately the vandalism that is slashing a 60-metre wide road through that priceless rainforest, burying the area's natural creeks and threatening the Great Barrier Reef Marine Park? Does the Attorney agree that for the Government to regulate now to protect the area, thus halting the construction of the road, would be sensible and prudent, given the fact that the fast approaching wet season will halt further road construction for some months, giving a breathing space for other action to be contemplated?

Senator GARETH EVANS —I think the honourable senator would appreciate that it would be, even for an adventurous and rash Attorney-General, unwise as well as against Standing Orders to give off the cuff opinions on a matter of that degree of complexity. I do not propose to do so, standing here without a brief in front of me. In any event, it is against Standing Orders.

The simple fact is that two levels of legal criteria must be satisfied. First, we must ensure that the area can be the subject of Commonwealth action. Essentially, that depends on something about the land in question bringing it within the scope of the application of the external affairs power, that being the primary constitutional support for the legislation to which Senator Chipp referred. There are some lesser planks in that constitutional support structure which may or may not have applicability in the circumstances of the particular case and which may or may not survive constitutional scrutiny, as Senator Chipp acknowledges. The matter is a delicate and difficult one legally to establish.

The second layer of legal criteria that must be satisfied relate to irreparable damage to the property in question. Again, it is a matter for nice judgment whether the construction of a road in this case would, legally speaking, constitute irreparable damage within the terms of the legislation and its regulations. The Minister for Home Affairs and Environment, Mr Cohen, has asked me in recent days to secure a quick opinion from my Department on that matter.

Senator Chipp —He is hopeless. We are counting on you.

Senator GARETH EVANS —I am indebted to the honourable senator for his confidence . I wish it were shared by others on his side of the chamber. I shall do my best in the circumstances to obtain a quick reply, because I appreciate very much the force of what Senator Chipp is saying. Certainly, it is alarming to a layman to look at some of the photographic material on the construction of the road in question, but the Government will have to give further consideration to whether that alarm can be translated into any viable legal foundation for Commonwealth action and whether it is appropriate in policy terms for that action to take place.

Senator CHIPP —Mr President, I ask a supplementary question. It is certainly not my wish to trick the Attorney-General with a difficult question at Question Time . My question is exquisitely simple. The Attorney-General knows the answer as well as anything. Does not Article 3 of the World Heritage Convention make it clear that it is up to our national Government-not the World Heritage Committee or any other international body-to determine areas in this country that it believes are of universal significance? Does that not mean, therefore, that as soon as the Australian Heritage Commission believes that the area is of world significance something could happen within days, the Government could then act within days?

Senator GARETH EVANS —Would that life were so simple.