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 submission to 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 (the World 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) (the Conservation 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 which the 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 its first 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 the World 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.
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