Commonwealth of Australia v Tasmania ('Tasmanian Dam Case') (1983) HCA 21

Category: Case Law
Binomial Name: High Court of Australia
Date: 1 July 1983
Sub Category:Case Law
Place:
State/Country:Australia
Subject Matter:Cultural Heritage | Land Use | Water
URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1983/21.html?context=1;query=Commonwealth%20v%20tasmania%20;mask_path=au/cases/cth/HCA+au/cases/cth/UKPCHCA+au/cases/cth/FamCA+au/cases/cth/FamCAFC+au/cases/cth/FCA+au/cases/cth/FCAFC+au/cases/cth/FCCA+au/cases/cth/FMCA+au/cases/cth/FMCAfam+au/cases/cth/IRCA+au/cases/cth/ArgusLawRp+au/cases/cth/ArgusLawRpCN+au/cases/cth/CthArbRp+au/cases/cth/AATA+au/cases/cth/ACIndT+au/cases/cth/ACompT+au/cases/cth/ADO+au/cases/cth/AUDND+au/cases/cth/AIRC+au/cases/cth/AIRCFB+au/cases/cth/AICmr+au/cases/cth/AICmrCN+au/cases/cth/APO+au/cases/cth/APBRO+au/cases/cth/ATP+au/cases/cth/ATMO+au/cases/cth/ATMOGI+au/cases/cth/ACopyT+au/cases/cth/ADFDAT+au/cases/cth/FWA+au/cases/cth/FWAA+au/cases/cth/FWAFB+au/cases/cth/FWC+au/cases/cth/FWCFB+au/cases/cth/FWCA+au/cases/cth/FWCD+au/cases/cth/PrivCmrA+au/cases/cth/PrivCmrACD+au/cases/cth/HREOCA+au/cases/cth/IRTA+au/cases/cth/IOSPCC+au/cases/cth/MRTA+au/cases/cth/NNTTA+au/cases/cth/RRTA+au/cases/cth/SSATACSA+au/cases/cth/SCTA+au/cases/cth/HCASL+au/cases/cth/HCATrans
Summary Information:

In Commonwealth of Australia v Tasmania (theTasmanian Dam Case), the High Court of Australia considered whether the Commonwealth Government had the power to stop the Tasmanian Government from damming the Gordon River in South West Tasmania under Commonwealth legislation.

The area proposed for the Franklin River dam contained significant Aboriginal cultural heritage (Australian Constitution Centre, n.d.) and the dam would have resulted in flooding of the Franklin River, causing significant environmental damage (National Museum Australia, 2020). The project was designed to generate hydroelectricity.

The Tasmanian Government challenged the validity of the Commonwealth legislation on the grounds that the Commonwealth had no power to legislate on State matters, such as the Franklin dam.

The High Court considered several questions about the Australian Constitution (theConstitution), relating to the Commonwealth's external affairs power (s 51(xxix)), corporations power (s 51(xx)) and race power (s 51(xxvi)).The High Court held that theCommonwealth did have thepowerunder theseprovisions of the Constitutionto legislate to prevent the construction of the dam.

The Tasmanian Dam Case is a 'landmark' in Australian constitutional and environmental law (Clark, 2013), as the impact of this complex decision went beyond the construction of the dam (Blow, 2015) and helped to define the scope of the Commonwealth's powers.

Detailed Information:

Background

In 1978, the Tasmanian Hydro-Electric Commission (HEC), established by the Tasmanian Government, proposed the construction of the Franklin dam on the Gordon River.

This proposal attracted significant attention, and quickly moved to the 'forefront of the Australian environmental debate' (National Museum Australia, 2020). Various advocacy groups such as Bob Brown's Tasmanian Wilderness Society, placed pressure on the Tasmanian Government to stop the dam. Approximately 10,000 people attended protests throughout Hobart in June 1980. The main concerns surrounded the environmental destruction, including destruction of Aboriginal cultural heritage (Griffiths, 2018).Central to the campaign to prevent the dam was the re-discovery of important Aboriginal sites: Kutikina Cave and Deena-Reena Cave on the lower Franklin River (Griffiths, 2018).

The Tasmanian Aboriginal Centre made a submissionto a Government inquiry about the 'natural values of ... Tasmania to Australia and the world and the federal responsibility in assisting Tasmania to preserve its wilderness areas...' (Allison, 2002). This submission emphasised the caves' 'great historical importance', pleading that 'its destruction represents a destruction of us' (Griffiths, 2018). The impact of the Tasmanian Aboriginal Centre's advocacy on the result of this case was 'profound' (Griffiths, 2018).

In 1982, the World Heritage Committee declared the area for the proposed dam a World Heritage Site under the 1972 UNESCO Convention for the Protection of World Cultural and National Heritage (theWorld Heritage Convention). However, international legal protection under the World Heritage Convention needed to be given under Australia's domestic law, in order to prevent the construction of the dam.

This 'growing national controversy' (Environmental Law Australia, n.d.) assisted the Labor Party, led by Bob Hawke, to win the 1983 Federal Elections. As part of his campaign,Hawke promised to prevent construction of the dam. Following this election, the World Heritage Properties Conservation Act 1983 (Cth) and National Parks and Wildlife Conservation Act 1975 (Cth) (theConservation Acts) were quickly created, allowing the Commonwealth Government to pass regulations that banned clearing, excavation and other activities in the areas protected under the World Heritage Convention.

Legal Context

Section 109 of the Constitution states that when a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails. This only applies when the Commonwealth law is valid.

The Tasmanian Government challenged the Conservation Acts on the grounds that the Commonwealth had no power to legislate on matters such as the Franklin Dam project, and that the regulations made under this legislation were therefore invalid.

During this time, construction of the dam continued under the authorisation of Tasmanian legislation.

On 4 April 1983, the Commonwealth Government applied to the High Court of Australia for an injunction and declaration that the Conservation Acts were valid, in order to override the Tasmanian legislation.

Section 51 of the Constitution is made of 39 subsections called 'heads of power', under which the Commonwealth Government is given power to make laws. The High Court considered the scope of various heads of power whichthe Commonwealth claimed allowed for the Conservation Acts to be made.

Decision

The four to three majority decision, consisting of Mason, Murphy, Brennan and Deane JJ (with Gibbs CJ, Wilson and Dawson JJ in dissent) interpreted the Commonwealth's powers under the Constitution broadly. Because the Commonwealth was declared to have the power to make laws under these various powers, the Commonwealth had the power to make the laws stopping the dam.

After this decision, the High Court released itsfirst media release on a case. This statement clearly stated that the decision 'strictly [concerned] legal questions' about the proper interpretation of the Constitution. The High Court emphasised that it did not question the 'possible advantages or disadvantages for constructing the dam'. This media release can be found via the URL link above for this case.

Griffiths highlights that although the Tasmanian Dam Case was a 'green victory' for Australian environmentalism, it was the 'deep Australian history' found within the Aboriginal cultural heritage throughout the area that resulted in this decision (2018).

Key Issues

External Affairs Power (s 51(xxix)

The external affairs power in the Constitution allows for the Commonwealth to makes laws for the 'peace, order and good governance' of Australia, with respect to external affairs.

Australia is a party to the World Heritage Convention, and the High Court found that being a party to such an agreement directly relates to external affairs. This therefore allows the Commonwealth to pass laws that give effect to Australia's legal obligations under the World Heritage Convention.

Justice Mason wrote in his judgment that article five of the World Heritage Convention created a clear obligation for Australia to take legal measures to 'ensure that effective and active measures are taken for the protection, conservation etc' of the area listed as a World Heritage site [30].

Chief Justice Gibbs wrote in his dissenting judgment that 'the protection of the environment and cultural heritage' was not a 'burning international issue' and should not be considered a valid exercise of power under the external affairs power [98].

Corporations Power (s 51 (xx)

The corporations power in the Constitution allows for the Commonwealth to legislate with respect to trading or financial corporations formed under Australian law. The High Court had to consider whether the corporations power could be relied on to prevent HEC from continuing construction of the Franklin Dam project.

The majority of the High Court decided that HEC was a trading corporation and was therefore subject to the regulations made under the Conservation Acts, supported by the corporations power.

Race Power (s 51(xxvi)

The race power in the Constitution allows the Commonwealth to make'special laws'with respect to people of any race. Specifically, ss 8 and 11 of theWorld Heritage Properties Conservation Act 1983 (Cth) were considered a valid exercise of the race power.

Justice Murphy wrote in his judgement that because of the 'attempted genocide' of Indigenous people in Tasmania, a law aimed at protecting and preserving matters relating to Aboriginal history, culture or religion in Tasmania is valid under this power [72]. Section 8 specifically allowed for for regulations to be made with respect to sites of significance to Indigenous Australians, if those sites or artifacts on them were likely to be damaged or destroyed. Justice Murphy also discussed the importance of archaeological sites in the proposal area, such as Kutikina Cave, in strengthening common understanding of Aboriginal identity and promoting 'tolerance... amongst the general community' [72].

Justice Deane also found that the legislation was valid under s 52(xxvi) of the Constitution. In addition, Justice Deane proposed a definition of 'Aboriginality', which has since been referred to in other cases, such as Mabo v Queensland (No. 2) [1992] HCA 23 and Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3.


Related Entries

Organisation
  • Tasmanian Hydro-Electric Commission
  • Tasmanian Wilderness Society
  • Tasmanian Aboriginal Centre
  • World Heritage Committee
  • High Court of Australia
  • Legislation
  • Australian Constitution
  • Convention for the Protection of World Cultural and National Heritage
  • World Heritage Properties Conservation Act 1983 (Cth)
  • National Parks and Wildlife Conservation Act 1975 (Cth)
  • Case Law
  • Mabo v Queensland [No 2] (1992) 175 CLR 1
  • Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3

  • References

    Billy Griffiths (2018) Friday Essay: How archaeology helped save the Franklin River
    Lyn Allison (2002) Democrats' role in saving the wilderness has been sold down the river
    Resource
    National Museum Australia (2020) Franklin Dam and the Greens
    Publication
    Australian Constitution Centre (n.d.) High Court Case Study: Nationhood
    Martin Clark (2013) Remembering the Tasmanian Dam Case
    Seminar
    The Honorable Justice Alan Blow (2015) Tasmanian Cases in the High Court

    Glossary

    Act (Australia) | Constitution | Federal Government | Legislation | State Government