Image Details: Morning Mist, Rock Island Bend, Franklin River, South-West Tasmania. This became an iconic image in the political campaign to stop the Gordon-below-Franklin Dam. Photograph by Peter Dombrovskis, © Liz Dombrovskis.
The legal case regarding the Tasmanian Dam is one of the most famous and influential in Australian history. This environmental law case stopped the construction a large hydro-electric dam proposed to be built in South-West Tasmania, Australia. This case was ruled on by the High Court of Australia and resulted in a split decision; 4:3, fundamentally deciding that the Commonwealth had power under section 51 of the Australian Constitution to stop the dam construction. This decision was based on the fact that Australia and an international obligation under the World Heritage Convention to “protect” the area.
In 1978, a proposal was made by the Tasmanian Hydro-Electric Commission (HEC), owned by the Tasmanian Government, to construct the Franklin Dam on the Gordon River in Tasmania.
The area in which the dam was proposed to be built was commonly deemed a “pristine wilderness”[i], and had significant value for Aboriginal cultural heritage.
Because of this, an election promise was made by Federal Opposition Labor Leader, Bob Hawke, to intervene and stop the construction of the dam. Once in Government, Labor passed the World Heritage Properties Conservation Act 1983 which helped prevent behaviour such as clearing, excavation and other activities within the Tasmanian Wilderness World Heritage Area.
Despite the fact that this area was listed as a World Heritage site by the World Heritage Committee in 1982, the measures taken were still not enough the prevent construction of the dam.
The Tasmanian Government passed laws allowing the dam to proceed and the Tasmanian Hydro-Electric Commission commenced preliminary works for the construction of the dam in 1982. They continued with construction, against the efforts of the Labor Government, arguing that the Commonwealth had no constitutional power to stop it. The Commonwealth Government sought an injunction (a court order to stop work) in the High Court. The Commonwealth Government commenced its proceedings in the High Court for an injunction and declaration of the validity of its laws on 4 April 1983. [ii]
The legal case was that between The Commonwealth of Australia v Tasmania (1983).
In order for the dam to be prevented from being built, the protection of the area under international law must have been incorporated into Australian domestic law.
The Issues of the Case
Within this environmental law case, the High Court of Australia had multiple issues to decide upon. In the Tasmanian Dam case, the High Court considered some difficult questions about several important provisions of the Australian Constitution. Fundamentally, the High Court had to determine whether the Commonwealth’s legislation was validly supported by a range of powers.[iii]
Firstly, the question was raised about the proper interpretation of the “external affairs” power of the Commonwealth Parliament, in regard to Section 51 (xxix) of the Australian Constitution. In this section of the Constitution, the Parliament is empowered to “make laws for the peace, order, and good government of the Commonwealth with respect to … external affairs”. The interpretation of "external affairs" is critical in gaining a complete understanding. The definition of what the “external affairs” related to in terms of Parliament’s power to legislate was unclear and controversial. The High Court was faced with the decision of whether or not the “external affairs power” could apply to activities such as building a dam, and other domestic matters in Australia. Secondly, the Court also had to decide whether its power in section 51(xx) to make laws about trading corporations could be used to prohibit the HEC from undertaking work.
Finally, the question was raised whether the ‘race power’ in section 51(xxvi) could be used to protect Aboriginal heritage, as the area was deemed to be significant to Aboriginal heritage.
The final judgment [iv] was split 4:3. The Court found that the World Heritage Properties Conservation Act (1983) was supported by the external affairs power in part. Consequently, this also meant that the Commonwealth was able to list the Franklin dam area as a world heritage site. The HEC was recognised as a trading corporation under the Constitution and could therefore be prohibited from undertaking construction activities. It was decided that parts of the Act were also supported by the race power because they protected Aboriginal cultural heritage. This decision meant that the Tasmanian Government could not pursue its plans to dam the Franklin River.
Importance of the Case's Decision
The decision from this case held enormous significance in regard to the extent of Commonwealth powers to make laws under the Australian Constitution, including its power to make laws to protect the environment. It had substantial implications for the constitutional and political relationship between the Commonwealth and State governments too. The decision from the High Court has now "firmly established that under Section 51(xxix) 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 gives the Australian Government a very wide constitutional power to make laws on many subjects, including protecting the environment.
This decision continues to have immense importance in Australia, often helping to protect Australia’s wildlife and ecosystems, and was the result of one of the most influential environmental law cases in the Southern Hemisphere.
Here is link to a video explaining the story of this amazing environmental law case:
References: [i] https://www.australianconstitutioncentre.org.au/nationhood---the-constitution-saves-the-franklin-river.html [ii] http://envlaw.com.au/tasmanian-dam-case/ [iii] https://www.australianconstitutioncentre.org.au/nationhood---the-constitution-saves-the-franklin-river.html [iv] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1983/21.html