Commonwealth v Tasmania
Encyclopedia
Commonwealth v Tasmania (1983) 158 CLR 1, (popularly known as the Tasmanian Dam Case) was a significant Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

n court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...

, decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 on 1 July 1983. The case was a landmark decision in Australian constitutional law
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....

, and was a significant moment in the history of conservation in Australia
Conservation in Australia
Conservation in Australia is an issue of state and federal policy. Australia is one of the most biologically diverse countries in the world, with a large portion of species endemic to Australia...

. The case centred around the proposed construction of a hydro-electric dam
Dam
A dam is a barrier that impounds water or underground streams. Dams generally serve the primary purpose of retaining water, while other structures such as floodgates or levees are used to manage or prevent water flow into specific land regions. Hydropower and pumped-storage hydroelectricity are...

 on the Gordon River in Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...

, which was supported by the Tasmanian government, but opposed by the Australian federal government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...

 and environmentalist
Environmentalist
An environmentalist broadly supports the goals of the environmental movement, "a political and ethical movement that seeks to improve and protect the quality of the natural environment through changes to environmentally harmful human activities"...

 groups.

Background to the case

In 1978, the Hydro-Electric Commission
Hydro Tasmania
Hydro Tasmania, known for most of its history as The HEC, is the government owned enterprise which is the predominant electricity generator in the state of Tasmania, Australia...

, then a body owned by the Tasmanian government
Government of Tasmania
The form of the Government of Tasmania is prescribed in its Constitution, which dates from 1856, although it has been amended many times since then...

, proposed the construction of a hydro-electric dam
Dam
A dam is a barrier that impounds water or underground streams. Dams generally serve the primary purpose of retaining water, while other structures such as floodgates or levees are used to manage or prevent water flow into specific land regions. Hydropower and pumped-storage hydroelectricity are...

 on the Franklin River
Franklin River
The Franklin River lies in the Franklin-Gordon Wild Rivers National Park at the mid northern area of the Tasmanian Wilderness World Heritage Area. Its source is situated at the western edge of the Central Highlands and it continues west towards the West Coast of Tasmania...

, in Tasmania's rugged south-west region. The dam would have flooded the Franklin River
Franklin River
The Franklin River lies in the Franklin-Gordon Wild Rivers National Park at the mid northern area of the Tasmanian Wilderness World Heritage Area. Its source is situated at the western edge of the Central Highlands and it continues west towards the West Coast of Tasmania...

. In June 1981 the Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...

 state government created the Wild Rivers National Park
Franklin-Gordon Wild Rivers National Park
Franklin-Gordon Wild Rivers is a national park in Tasmania, Australia, 117 km west of Hobart. It is named after the two main river systems lying within the bounds of the park - the Franklin River and the Gordon River.- Location :...

 in an attempt to protect the river.

In May 1982, a Liberal
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...

 state government was elected which supported the dam. The federal government at the time, also Liberal (under Malcolm Fraser
Malcolm Fraser
John Malcolm Fraser AC, CH, GCL, PC is a former Australian Liberal Party politician who was the 22nd Prime Minister of Australia. He came to power in the 1975 election following the dismissal of the Whitlam Labor government, in which he played a key role...

), made offers of compensation to Tasmania, however they were not successful in stopping the dam's construction

In November 1982, UNESCO
UNESCO
The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations...

 declared the Franklin area a World heritage site
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...

. During the federal election of 1983
Australian federal election, 1983
Federal elections were held in Australia on 5 March 1983. All 125 seats in the House of Representatives, and all 64 seats in the Senate, were up for election, following a double dissolution...

, the Labor party under Bob Hawke
Bob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....

 had promised to intervene and prevent construction of the dam. After winning the election
Election
An election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...

, the Labor government passed the World Heritage Properties Conservation Act 1983
World Heritage Properties Conservation Act 1983
The World Heritage Properties Conservation Act 1983 was an Act of the Parliament of Australia which provided for certain protections for World Heritage listed places....

, which, in conjunction with the National Parks and Wildlife Conservation Act 1975 enabled them to prohibit clearing, excavation
Earthworks (engineering)
Earthworks are engineering works created through the moving or processing of quantities of soil or unformed rock.- Civil engineering use :Typical earthworks include roads, railway beds, causeways, dams, levees, canals, and berms...

 and other activities within the Tasmanian Wilderness
Tasmanian Wilderness
The Tasmanian Wilderness is a term that is used for a range of areas in Tasmania, Australia.The World Heritage Areas in South West, Western and Central are the most well known. However, there are also other areas in Tasmania that have the elements of being known as wilderness areas, the Tarkine...

 World heritage area.

The Tasmanian government challenged these actions, arguing that the Australian Constitution gave no authority to the federal government to make such regulations. In May and June 1983, both governments put their case to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

.

The case

The case revolved around several major constitutional issues, the most important being the constitutional validity of the World Heritage Act
World Heritage Properties Conservation Act 1983
The World Heritage Properties Conservation Act 1983 was an Act of the Parliament of Australia which provided for certain protections for World Heritage listed places....

. The division of powers between the Australian federal government and the individual state governments is defined by section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...

 of the Australian constitution. The federal government had taken a range of actions, which they claimed were authorised under specific subsections of section 51. The Tasmanian government disputed these claims.

External Affairs Power

Section 51(xxix) of the Australian Constitution
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....

 gives the federal parliament the power to make laws with regard to external affairs, a nebulously defined provision. The Hawke government passed the World Heritage Act
World Heritage Properties Conservation Act 1983
The World Heritage Properties Conservation Act 1983 was an Act of the Parliament of Australia which provided for certain protections for World Heritage listed places....

 under this provision, claiming that the Act was giving effect to an international treaty to which Australia was a party, in this case the Convention Concerning the Protection of the World Cultural and Natural Heritage, which governs UNESCO
UNESCO
The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations...

's World heritage program
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...

.

The Tasmanian government (as well as the governments of Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....

, New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...

 and Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...

) opposed this action. Allowing the federal government such broad new powers would infringe on the States' power to legislate in many areas, and would upset the "federal balance". Chief Justice Gibbs
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...

 said that although all of the Constitution is open to interpretation, "the external affairs power differs from the other powers conferred by s 51 in its capacity for almost unlimited expansion." Defining which affairs were of “international character” was a difficult task for the court.

However, Justice Mason recognised that the external affairs power was specifically intended to be ambiguous, and capable of expansion. When the Constitution came into effect in 1901, there were few (if any) international organization
International organization
An intergovernmental organization, sometimes rendered as an international governmental organization and both abbreviated as IGO, is an organization composed primarily of sovereign states , or of other intergovernmental organizations...

s such as the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

 in existence (not to mention multinational corporation
Multinational corporation
A multi national corporation or enterprise , is a corporation or an enterprise that manages production or delivers services in more than one country. It can also be referred to as an international corporation...

s). However in modern times, there are many more areas in which nations cooperate.

In his judgement, Justice Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...

 said that in order for a law to have international character, it is sufficient that it:
  • implements an international law
    International law
    Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

     or treaty
    Treaty
    A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

    ;
  • implements a recommendation from the United Nations or a related body, such as the WHO
    World Health Organization
    The World Health Organization is a specialized agency of the United Nations that acts as a coordinating authority on international public health. Established on 7 April 1948, with headquarters in Geneva, Switzerland, the agency inherited the mandate and resources of its predecessor, the Health...

     or ILO
    International Labour Organization
    The International Labour Organization is a specialized agency of the United Nations that deals with labour issues pertaining to international labour standards. Its headquarters are in Geneva, Switzerland. Its secretariat — the people who are employed by it throughout the world — is known as the...

    ;
  • deals with relationships between bodies (public or private) within Australian and bodies outside; or
  • deals with things inside Australia of international concern.


It is important to note that the decisions of UNESCO
UNESCO
The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations...

 in designating World heritage site
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...

s have no binding force upon any government. However, the ratification
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...

 of the Convention could be seen as a commitment to upholding its aims, and an acceptance of obligations under it.

Corporations Power

Section 51 placitum (xx) provides that the federal government has powers to make laws regarding foreign, trading and financial corporations. Tasmania argued that this head of power could not apply to its Hydro-Electric Commission
Hydro Tasmania
Hydro Tasmania, known for most of its history as The HEC, is the government owned enterprise which is the predominant electricity generator in the state of Tasmania, Australia...

 since it was in effect a department of the Tasmanian government, and not a trading corporation.
However, as the HEC was engaged in the widespread production and sale of electricity, and had a degree of independence from the government, it was held to be a trading corporation.

Acquisition of property on just terms

Section 51(xxxi) of the Australian Constitution
Section 51(xxxi) of the Australian Constitution
Section 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia providing that the Commonwealth has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the...

 provides that the federal government has the power to appropriate property “on just terms” for any other purpose it has powers to make laws about (see Section 51 of the Australian Constitution
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...

: for example, acquiring land to build a military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...

 base). The crucial phrase in this section is “on just terms”. Tasmania argued that the federal government has deprived it of property unjustly by passing the World Heritage Act. Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....

 said however that Tasmania had no proprietary rights over the site for the proposed dam (that is, it was not private land), and therefore it had not been deprived of any property.

The decision

A four to three majority of the court held that the federal government had legitimately prevented construction of the dam, and that the World Heritage Act
World Heritage Properties Conservation Act 1983
The World Heritage Properties Conservation Act 1983 was an Act of the Parliament of Australia which provided for certain protections for World Heritage listed places....

 was authorised under the "external affairs" power. Although other parts of the Act were invalid, the provision banning the construction of dams was valid.

Consequences

The case ended the HEC’s plans to construct more hydro-electric dams in Tasmania, and indeed there have been few plans for dams in Australia since. The debate over the extent of the "external affairs" power continues, in areas such as racial and sexual discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...

.

Judges sitting

  • Chief Justice Gibbs
    Harry Gibbs
    Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...

  • Justice Mason
  • Justice Murphy
    Lionel Murphy
    Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...

  • Justice Wilson
    Ronald Wilson
    Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...

  • Justice Brennan
    Gerard Brennan
    Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....

  • Justice Deane
    William Deane
    Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...

  • Justice Dawson
    Daryl Dawson
    Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...


See also

  • Australian constitutional law
    Australian constitutional law
    Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....

  • Franklin Dam
    Franklin Dam
    The Franklin Dam or Gordon-below-Franklin Dam project was a proposed dam on the Gordon River in Tasmania, Australia, that was never constructed. The movement that eventually led to the project's cancellation became one of most significant environmental campaigns in Australian history.The dam was...

  • Tasmanian power referendum, 1981
    Tasmanian power referendum, 1981
    The Tasmanian power referendum was a one-question referendum held on 12 December 1981, and intended to determine the location of a proposed hydroelectricity dam to be built on the Gordon River in Tasmania, Australia.- Background :...

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