Commonwealth v Tasmania 1983 PDF

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Commonwealth v Tasmania 1983 The Tasmanian Dams case is the most famous and influential environmental law case in Australian history. It was also a significant landmark in Australian constitutional law as it is where the Commonwealth Government succeeded in stopping a large Hydro-Electric dam that was proposed to be constructed in South-West Tasmania. There were 7 Judges of the High Court of which included Gibbs CJ, Mason J, Murphy J, Wilson J, Brennan J, Deane J and Dawson J, this case had a split 4:3 decision in deciding whether the Commonwealth had power under section 51xxix(29) of the Australian Constitution to stop the dam being constructed based on Australia’s international obligations under the world heritage convention. A proposal was put forward in 1978 by the Tasmanian Hydro-Electric Commission to construct the Franklin dam. The construction of this dam would have resulted in the flooding of a large section of the franklin river in South-West Tasmania. The area of which the dam was proposed to be placed was a nominated area for a World Heritage listing under the World Heritage Convention in 1981. The area was declared to be a World Heritage site the following year in 1982, although despite this, the heritage listing would have not prevented the construction of the dam. In 1982 the Tasmanian Government passed laws that allowed the construction of the dam to proceed and the Tasmanian Hydro-Electric Commission commenced preliminary works for the construction of the dam. In the Australian Federal Election of 1983, the Labour Party of which was led by Bob Hawke, promised to intervene and prevent the construction of the dam. The Liberal party which was led by Malcolm Fraser refused to use external powers to intervene and stop the construction of the dam. As a result, Labour won the election and passed the World Heritage Properties Conservation Act 1983 of which in conjunction with the National Parks and Wildlife Conservation Act 1975, enabled them to prohibit the clearing, excavation and other activities associated with the construction of the dam within the Tasmanian Wilderness World heritage area. The Tasmanian Government challenged these actions and refused to stop the construction of the dam, they argued that the Commonwealth Government did not have the power to stop the construction of the dam under the Commonwealth Constitution and did not wish to upset the “federal balance”. Chief Justice Gibbs stated that although the Constitution is open to interpretation, the external affairs power differs from the other powers conferred by s51 in its capacity for almost unlimited expansion. Defining which affairs were of an “international character” and was a difficult task for the Court. Justice Mason recognised that the external affairs power was specifically intended to be ambiguous and capable of expansion, as when the Constitution came into effect in 1901 there were few, if any international organisations such as the United Nations in existence, although now in modern times there are many more areas in which nations cooperate.

The Commonwealth Government commenced proceedings in the High Court for an injunction and declared the validity of its laws on the 4th of April 1983. The case was heard in May of 1983 and the High Court delivered its judgement a few weeks later on the 1st of July 1983, the High Court largely upheld the validity of the Commonwealth laws which therefore prevented the dam constructions from proceeding. This decision had an enormous significance for the extent of the Commonwealth powers to make laws under the Australian Constitution, including its powers to make laws to protect the environment. Following the decision, there was a legal debate over the extent of the “external affairs” power that continued for a decade throughout a series of cases in the High Court where a wide view of the external affairs power prevailed. It is now firmly established that under section 51 xxix (29) of the Australian Constitution, the Australian Government has the power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations. This section gives the Federal Parliament the power to make laws with respect to external affairs – which was passed by the Labour Party who was led by Bob Hawke. Due to the large number of international obligations that Australia had accepted under the international treaties, the external affairs power in section 51 xxix (29) gives the Australian Government a very wide Constitutional power to make laws on many subjects, including protecting the environment. The decision in which was made continues to have an enormous importance within Australia. This case is of such a significance as that even today, large parts of Australia’s main national environmental law, the Environmental Protection and Biodiversity Conservation Act 1999 depend for their Constitutional validity on the decision in the Tasmanian Dam case regarding the external affairs power. At the conclusion of this case the high court held by a very slight majority that the Commonwealth had legitimately prevented the construction of the dam. The World Heritage Act was authorised under the external affairs power and the Hydro-Electric Commission was held to be a trading corporation, even though it was part of the Government. This was because it had a degree of independence in decision making and was engaged in the large production of traceable electricity. In respect to the deprivation of property. Tasmania had no proprietary rights over the site for the proposed dam as it was not private land and Tasmania had not been deprived of any property....