| Commonwealth v Tasmania | |
 | |
| High Court of Australia | |
| Full case name | The Commonwealth of Australia v State of Tasmania |
|---|---|
| Date decided | July 1, 1983 |
| Citations | (1983) 158 CLR 1, [1983] HCA 21 |
| Judges sitting | Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane & Dawson JJ |
| Case history | |
| Prior actions: | none |
| Subsequent actions: | none |
| Case opinions | |
| (4:3) the Commonwealth validly prohibited construction of the dam, by virtue of the World Heritage Act (per Mason, Murphy, Brennan & Deane JJ) (4:0) any Constitutional restriction preventing the Commonwealth from inhibiting the functions of the States did not apply (per Mason, Murphy, Brennan & Deane JJ) | |
Commonwealth v Tasmania (1983) 158 CLR 1, (popularly known as the Tasmanian Dam Case) was a significant Australian court case, decided in the High Court of Australia on July 1, 1983. The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. "July 1st" redirects here For the Ayumi Hamasaki song see H (song. Year 1983 ( MCMLXXXIII) was a Common year starting on Saturday (link displays the 1983 Gregorian calendar) Sir Harry Talbot Gibbs GCMG, AC, KBE, QC ( 17 February 1917 - 25 June 2005) was Chief Justice Sir Anthony Frank Mason AC, KBE, QC (born 21 April 1925 Australian Judge and Royal Australian Air Force officer Lionel Keith Murphy QC ( 30 August 1922 — 21 October 1986) was an Australian Politician who in 1972 became Attorney-General Sir Ronald Darling Wilson, AC, KBE, CMG, QC ( 23 August, 1922 - 15 July, 2005) was a distinguished Sir Francis Gerard Brennan AC, KBE, QC (born 22 May, 1928) is an Australian lawyer judge and 10th Chief Justice Sir William Patrick Deane, AC, KBE, QC (born 4 January 1931) Australian judge and 22nd Governor-General of Australia. Sir Daryl Michael Dawson AC KBE CB (born 1933 Australian Judge and naval officer was a Justice of the High Court of Australia Year 1983 ( MCMLXXXIII) was a Common year starting on Saturday (link displays the 1983 Gregorian calendar) Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters For a topic outline on this subject see List of basic Australia topics. A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its A legal case is a dispute between opposing parties resolved by a Court, or by some equivalent legal process The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. "July 1st" redirects here For the Ayumi Hamasaki song see H (song. Year 1983 ( MCMLXXXIII) was a Common year starting on Saturday (link displays the 1983 Gregorian calendar) The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia. Australian constitutional law is the area of the Law of Australia relating to the interpretation and application of the Constitution of Australia. Conservation in Australia is an issue of state and federal policy The case centred around the proposed construction of a hydro-electric dam on the Franklin River in Tasmania, which was supported by the Tasmanian government, but opposed by the Australian federal government and environmentalist groups. Hydroelectricity is electricity generated by Hydropower, ie the production of power through use of the gravitational force of falling water A dam is a barrier that divides waters. Dams generally serve the primary purpose of retaining water while other structures such as Floodgates, Levees For the Franklin River in British Columbia Canada see Franklin River (Vancouver Island. Tasmania is an Australian island and state of the same name It is located south of the eastern side of the Continent, being separated from it by Bass This article describes the federal government of Australia See Australian governments for other jurisdictions Environmentalism is a broad philosophy and Social movement centered on a concern for the conservation and improvement of the environment.
Contents |
Background to the case
In 1978, the Hydro-Electric Commission, then a body owned by the Tasmanian government, proposed the construction of a hydro-electric dam on the Gordon River, in Tasmania's rugged south-west region. The Franklin Dam or Gordon-below-Franklin Dam project was a proposed dam on the Gordon River in Tasmania, Australia that was never Year 1978 ( MCMLXXVIII) was a Common year starting on Sunday (link displays the 1978 Gregorian calendar) Hydro Tasmania, known for most of its history as The HEC, is the predominant Electricity generator in the state of Tasmania, Australia. 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 Hydroelectricity is electricity generated by Hydropower, ie the production of power through use of the gravitational force of falling water A dam is a barrier that divides waters. Dams generally serve the primary purpose of retaining water while other structures such as Floodgates, Levees The Gordon River is one of the major rivers of Tasmania, Australia. The dam would have flooded the Franklin River. For the Franklin River in British Columbia Canada see Franklin River (Vancouver Island. In June 1981 the Labor state government created the Wild Rivers National Park in an attempt to protect the river. Year 1981 ( MCMLXXXI) was a Common year starting on Thursday (link displays the 1981 Franklin-Gordon Wild Rivers is a national park in Tasmania ( Australia) 117 km west of Hobart.
In May 1982, a Liberal state government was elected which also did not support the dam. Year 1982 ( MCMLXXXII) was a Common year starting on Friday (link displays the 1982 Gregorian calendar) The Liberal Party of Australia is an Australian political party. The federal government at the time, also Liberal (under Malcolm Fraser), made offers of compensation to Tasmania, however they were not successful in stopping the dam's construction[1]
In November 1982, UNESCO declared the Franklin area a World heritage site. John Malcolm Fraser, AC, CH (born 21 May 1930 is an Australian Liberal politician who was the 22nd Prime Minister of Australia. Year 1982 ( MCMLXXXII) was a Common year starting on Friday (link displays the 1982 Gregorian calendar) United Nations Educational Scientific and Cultural Organization ( UNESCO) is a specialized agency of the United Nations established on November 16 A UNESCO World Heritage Site is a site (such as a Forest, Mountain, Lake, Desert, Monument, Building, complex During the federal election of 1983, the Labor party under Bob Hawke had promised to intervene and prevent construction of the dam. Background The coalition government led by Malcolm Fraser had to contend with a parlous economic situation with high inflation and high unemployment Robert James Lee (Bob Hawke, AC (born 9 December 1929 was the 23rd Prime Minister of Australia and longest serving Australian Labor Party Prime Minister After winning the election, the Labor government passed the World Heritage Properties Conservation Act 1983 (full text: [1]), which, in conjunction with the National Parks and Wildlife Conservation Act 1975 enabled them to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World heritage area. An election is a Decision-making process by which a population chooses an individual to hold formal office The Tasmanian Wilderness is a term that is sometimes used for the World Heritage Area in South West, Western and Central Tasmania
The Tasmanian government challenged these actions, arguing that the Australian Constitution gave no authority to the federal government to make such regulations. The Constitution of Australia is the law under which the Australian Commonwealth Government operates In May and June of 1983, both governments put their case to the High Court of Australia. Year 1983 ( MCMLXXXIII) was a Common year starting on Saturday (link displays the 1983 Gregorian calendar) The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy.
The case
The case revolved around several major constitutional issues, the most important being the constitutional validity of the World Heritage Act. The division of powers between the Australian federal government and the individual state governments is defined by section 51 of the Australian constitution. A federation ( Latin: foedus, covenant is a union comprising a number of partially self-governing states or regions united by a central ("federal" Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth Parliament. The Constitution of Australia is the law under which the Australian Commonwealth Government operates 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
Section 51(xxix) of the Australian Constitution gives the federal parliament the power to make laws with regard to external affairs, a nebulously defined provision. Section 51(xxix of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of The Hawke government passed the World Heritage Act under this provision, claiming that the Act was giving effect to an international treaty to which Australia was a party, in case the Convention Concerning the Protection of the World Cultural and Natural Heritage [2], which governs UNESCO's World heritage program. United Nations Educational Scientific and Cultural Organization ( UNESCO) is a specialized agency of the United Nations established on November 16 A UNESCO World Heritage Site is a site (such as a Forest, Mountain, Lake, Desert, Monument, Building, complex
The Tasmanian government (as well as the governments of Victoria, New South Wales and Queensland) opposed this action. Queensland is a state of Australia, occupying the north-eastern corner of the mainland continent 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 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. Sir Harry Talbot Gibbs GCMG, AC, KBE, QC ( 17 February 1917 - 25 June 2005) was Chief Justice " 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. Sir Anthony Frank Mason AC, KBE, QC (born 21 April 1925 Australian Judge and Royal Australian Air Force officer When the Constitution came into effect in 1901, there were few (if any) international organizations such as the United Nations in existence (not to mention multinational corporations). Year 1901 ( MCMI) was a Common year starting on Tuesday (link will display calendar of the Gregorian calendar (or a Common year starting International Organization is a peer-reviewed Academic journal that covers the entire field of International affairs. The United Nations ( UN) is an International organization whose stated aims are to facilitate cooperation in International law, International security Multinational corporation ( MNC) or transnational corporation ( TNC) is a Corporation or enterprise that manages Production or delivers However in modern times, there are many more areas in which nations cooperate.
In his judgement, Justice Murphy said that in order for a law to have international character, it is sufficient that it:
- implements an international law or treaty;
- implements a recommendation from the United Nations or a related body, such as the WHO or ILO;
- deals with relationships between bodies (public or private) within Australian and bodies outside; or
- deals with things inside Australia of international concern. Lionel Keith Murphy QC ( 30 August 1922 — 21 October 1986) was an Australian Politician who in 1972 became Attorney-General International law is the term commonly used for referring to the system of implicit and explicit agreements that bind together nation-states in adherence to recognized values and standards A Treaty is an agreement under International law entered into by actors in international law namely States and International organizations. The International Labour Organization
It is important to note that the decisions of UNESCO in designating World heritage sites have no binding force upon any government. United Nations Educational Scientific and Cultural Organization ( UNESCO) is a specialized agency of the United Nations established on November 16 A UNESCO World Heritage Site is a site (such as a Forest, Mountain, Lake, Desert, Monument, Building, complex However, the ratification of the Convention could be seen as a commitment to upholding its aims, and an acceptance of obligations under it. Ratification is the act of giving official sanction or approval to a formal document such as a treaty or constitution
Applicability to Hydro-Electric Commission
The Tasmanian government argued that even if the federal government had the authority to enact the World Heritage Act, it would not apply to the Hydro-Electric Commission since it was in effect a department of the Tasmanian government, and not a trading corporation (section 51 placitum (xx) provides that the federal government has powers to make laws regarding trading and financial corporations). Hydro Tasmania, known for most of its history as The HEC, is the predominant Electricity generator in the state of Tasmania, Australia. 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
Section 51(xxxi) of the Australian Constitution 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: for example, acquiring land to build a military base). Section 51(xxxi of the Australian Constitution is a subsection of Section 51 of the Australian Constitution providing that the Commonwealth has the power to make Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth Parliament. A military is an Organization authorized by its Nation to use force usually including use of Weapons in defending its Country (or by attacking 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 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. Sir Francis Gerard Brennan AC, KBE, QC (born 22 May, 1928) is an Australian lawyer judge and 10th Chief Justice
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 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. List of racism-related topics|Racism by country Racism, by its simplest definition is the belief that race is the primary determinant of human traits and capacities and that Sexism is the belief or attitude that one Gender or Sex is inferior to or less valuable than the other and can also refer to a Hatred or distrust towards Unlike most discrimination policies discrimination between, which is the discernment of qualities and recognition of the differences focused here discrimination against is
Judges sitting
- Chief Justice Gibbs
- Justice Mason
- Justice Murphy
- Justice Wilson
- Justice Brennan
- Justice Deane
- Justice Dawson
See also
References
- The Commonwealth v Tasmania – full text
- Australian Constitution – full text
- World Heritage Properties Conservation Act 1983 – full text
- UNESCO – the World Heritage Centre
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