Commonwealth v Tasmania is more commonly known as the Tasmania Dam case. This is significant court cases, which have been decided in the Australian high court on July 1st 1983. The significance of this case is related to Australian Constitution Law and is considered as a landmark case where provisions related to Australian constitution had been discussed by the court. The case was a major moment in relation to conservation history in the country. The primary focus of the case was in relation to the proposal of contracting a Dam for generating hydro-electricity by using the water of Tasmanian River Gordon. The decision of building the Dam was provided support by the Tasmanian government only and was expressly opposed by several environment groups and the federal government.
The Australian constitution is the primary basis of law making in Australia. The legislature does not have the power to make law which is not provided through the constitution or is expressly opposed by the constitution. The High Court of Australia have been provided the responsibility of providing protection to the contents of the constitution. The court has the right to render a law invalid if it is found to be expressly contrary to the provisions of the constitution.
The primary purpose of this essay is to critically analyze the decision provided by the High court in this case in the light of constitution law and other cases laws. The paper also provides the implications which the decision has on the legal system of Australia.
A body owned by the Tasmanian Government named the Hydro-electric Commission in 1978 had made a proposal in relation to the construction of a Hydro-Electricity Dam on River Gordon underneath its convergence with River Franklin in south western region of Tasmania. The Dam if constructed would have flooded River Franklin. The Wild Rivers National Park had been created by the local Labor government in 1981 to provide protection to the River. The boundaries of the park had been designed in such a way that another dam could have been constructed on River Gordon with its convergence with River Olga.
Support to the Dam had been provided by the Liberal government which had been elected in the year 1982. There was an attempt made by the Federal government to prevent the construction of the Dam by providing compensation to Tasmania, but such attempt failed. The Franklin area had been declared as a world heritage site by the UNESO after a proposal which had been made by the state government and was forwarded by the commonwealth hand been provided approval. There had been a promise made by the Labour party during the 1983 elections that they would prevent the construction of the Dam. Thus after winning the election the party passed a new legislation named the World Heritage Properties Conservation Act 1983. The legislation in connection with the National Parks and Wildlife Conservation Act 1975 prevented any form of excavation, clearing and other activities within the World Heritage areas of Tasmania. The actions had been challenged by the Tasmanian Government by stating that, the Australian Federal government had no authority of making such laws under the commonwealth constitution. The case had been put before the High Court of Australia in 1983 by both the governments.
The case
There were several major constitutional issues around which the case revolved. However, the primary issue in the case was to determine whether the enactment of the World Heritage Properties Conservation Act 1983 was in compliance with the constitution and was legally valid. Section 51 of the constitution deals with the rules in relation to the powers provided to the states and the commonwealth with respect to law making. There had been a claim made by the federal government that ranges of actions taken by them were in compliance with particular subsections of section 51. These claims had been disputed by the Tasmanian government.
The Federal parliament has been provided power under Section 51(xxix) of the Australian Constitution with respect to making Law for external affairs. The federal government had passed the World Heritage Properties Conservation Act 1983 under the same provisions. The claim which had been made in this situation was that the legislation had been given effect in compliance with an international treaty to which Australia was a part. The treaty in context was Convention Concerning the Protection of the World Cultural and Natural Heritage.
The Tasmanian Government along with the governments of NSW, Queensland and Australia had opposed the legislation. In case the federal government was provided with such broad powers it would mean that the power of the states to make laws would be reduced in various areas and would ultimately lead to upsetting the federal balance. It had been stated by Chief Justice Gibbs that, although the provisions of the constitution are subjected to statutory interpretation, the external powers are different from other powers provided by S 51 of the Constitution with respect to its capacity of unlimited expansions. It would be difficult for the court to accurately identify which affairs would be considered as having an international character. However it had been recognized by Justice Mason that, the external affair powers had been specifically intended to have an ambiguous nature and were provided with the capacity of expansion. The court stated that at the time of the formation of the constitution there were very limited if any international organizations present like the UN. However, contemporarily there are various other areas in which international corporation is carried out by nations.
In relation to the decision, it had been stated by Justice Murphy that, a law would be considered to have an intentional character in case it is implementing a international treaty or law, it implements a recommendations provided by an international body such as the UN, ILO or UNESCO, is in relation to the connection between bodies in Australia and international bodies and deals with things having international concern inside Australia. it has been argued by Andrew (2018) that the decision made by the UNESCO with respect to the designation of world heritage areas does not have any biding effect on the governments. However, as the convention had been ratified, it can be stated that it was a commitment to abide by its principles and objectives and also accepting the obligations which arise out of it.
Corporation power
The federal government has been provided with powers under section 51XX to enact laws with respect to trading, financial and foreign corporations. It had been argued by Tasmania that the head of powers would not be applicable on the Hydro-Electric Commission as this was a department of the government and should not be considered as a trading corporation. However as the primary purpose of the Hydro-Electric Commission was sale and production of electricity in large scale and it was also provided to some extent independence from government decisions, it would be considered as a trading corporation.
It has been provided by section 51(XXXI) of the Australian constitution that the federal government has the authority of appropriating property on fair and just terms in relation to any other area in which it has been provided law making powers. For instance the Federal government is provided the power to acquire land for military purpose. However the critical words with respect to the section are “for just terms”. It had been stated by the state government that by the enactment of the WHPC Act 1983, the federal government had in an unjust manner deprived the Tasmanian government of their property. However, it had been stated by Justice Brennan in this situation that, Tasmania did not have any proprietary rights with respect to site of the proposed Dam as it was not considered as a private land and thus no acquisition of property in an unjust manner was carried out.
The decision
The court in this case was lead by a seven panel bench. The decision in this case was very close. The High court in the case of Commonwealth v Tasmania ruled in favour of the federal government and other environmental groups with the ratio of 4:3 with three judges dissenting. The court had made a decision that the prevention of constructing the Dam had been carried out in a legitimate manner by the federal government. It was also stated by the court that although few parts of the legislation was not valid according to the constitution, the legislation itself was a valid piece of law under the provisions of section 51 (power to make law in external affairs) and its provisions of preventing the construction of the Dam was valid.
Critical Analysis
The scope and nature of the external affair powers had been discussed by the HCA in the case of Koowarta v. Bjelke-Peterson (1982), 56 A.L.J.R. 625. The court through Majority in this case stated that section 9 and 12 of the Racial Discrimination Act 1975 was a valid law under the powers of the federal government to make laws in relation to external affairs. The reason provided by the court in this case for the judgement provided by it was a considerable guideline provided to the court in relation to making the decision in the present case.
According to Wilson J, although Mason, Murphy and Brennan JJ, stated that the federal government has the power to make laws in case they are a party to an international convention the question which arises it that to what degree does section 51 impose restrictions on the federal government of making law in relation to external affairs which would not hamper Polity’s federal character. It was said by the judge that in case the grant of power is in relation to external affairs, the analysis of the circumstances, parties and the subject matter will be appropriate where a proposed exercise of the authority is challenged. However, it would not be appropriate that the law which has been challenged will result in a treaty obligation. A treaty which has been entered with another country, irrespective of whether it results out of a collusive agreement, which is in relation to a area neither of any special issue or relation between Australia and another country and also not of any common international concern, it is likely not to survive the scrutiny.
According to Zaccary et al. (2018), the areas of pure domestic concerns are reducing and areas of international concerns are increasing. In the light of this statement it had been stated by Wilson J that the quality of an international concern being present remains, more than ever, is a valid test of whether a subject matter is a part of external affairs of the system. A subject area having international concerns mandatorily has the capability of affecting the relationship of a country with other nations and in itself this quality would be adequate to render the subject matter a part of external affairs. Wilson J held that the legislation passed by the commonwealth government is totally invalid. It has been stated by Ann (2018) that the role of the court is to totally be aloof from any form of political controversy and make a decision in total compliance of law.
Where the court gets involved with the politics its is evident that the decision taken by it would not be correct. According to Martin (2015), the decision which had been made by this case was a political decision rather than a legal decision. This can also be stated by the close competition between the decision made by the judges in this case as three judges expressly did not agree with the decision of the majority which was only four. In the case of Murphyores Incorporated Pty. Ltd. v The Commonwealth (1976), 136 C.L.R. 1, it had been stated by Mason J that it is now too late to express that the law has to include reference to motives by which it is inspired or the consequences resulting out of it. The decision which had been provided by the majority stated that the law of protecting the environment of Australia was an international concern. However the dissenting judges stated that such law would not affect the relationship of Australia with any other country or international body and thus should be considered as domestic law. Although the assertions made by the Majority in this case is not relevant in the contemporary era where the environment is evidently of international concern, it can be stated that at the time the decision had been made, such international significance of the environment was not present.
The plan of the HEC to construct a Dam had been brought to an end, by the case in Tasmania and ever since the case; there have been very limited number of Dam construction plans in the country. The legal debate in relation to the degree of external law making powers provided to the federal government has continued ever since the case had been decided in various other cases in the HCA. In all such cases the court had relied on wide view of external powers. The case had established in a firm manner that section 51 (xxix) of the Australian Constitution, enables the commonwealth to make laws which may be required reasonably to comply with Australia’s international obligations. As Australia has a large number of international obligations in relation to treaties then power under external affair law making has considerably been made wide. These areas also include the environment of Australia. Various parts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which is the primary environment legislation in Australia depend on the decision provided in this case for constitutional validity. Although the decision made by the court in this case has been criticised on various occasions, it can be stated that the court did abide by the appropriate legal rules to make this decision.
Conclusion
In conclusion it can be stated the decision which has been made by the court in this case is subjected to several valid criticisms. However, the arguments provided by the majority judges in this case also cannot be ignored and are correct at the point of law. On the other hand, the criticisms which have been made with respect to the decisions although may be considered valid in theory, they do not have a strong position in practical law. The decision made by the court in this case clarifies that section 51 (xxix) of the Australian Constitution, enables the commonwealth to make laws which may be required reasonably to comply with Australia’s international obligations. As Australia has a large number of international obligations in relation to treaties then power under external affair law making has considerably been made wide. These areas also include the environment of Australia. Thus the decision of the court is correct on the point of Law.
References
Black, Michael. “The Tasmanian Dam Case: an advocate’s memoir.” (Griffith Law Review 24.1 2015): 22-40.
Charlesworth, Hilary. “Internal and external affairs: the Koowarta case in context.” (Griffith Law Review 23.1 2014): 35-43.
Clark, Martin. “Experiences of coming to law: An Interview with Bob Brown on the Tasmanian wilderness society as client in the Tasmanian Dam Case.” (Griffith Law Review 24.1 2015): 58-67.
Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1; 57 ALJR 450; 46 ALR 625
Edgar, Andrew. “Environmental Protests and Constitutional Protection of Political Communication: Brown v Tasmania.” (Journal of Environmental Law 2018).
Genovese, Ann, and Shaun McVeigh. “Nineteen eighty three: A jurisographic report on Commonwealth v Tasmania.” (Griffith Law Review 24.1 2015): 68-88.
Genovese, Ann, ed. Australian Critical Decisions: Remembering Koowarta and Tasmanian Dams. (Routledge, 2018.)
Genovese, Ann. “Critical decision 1983: remembering Commonwealth v Tasmania.” (Griffith Law Review 24.1 2015): 1-15.
Koowarta v. Bjelke-Peterson (1982), 56 A.L.J.R. 625
Mackey, Brendan, et al. “Assessing the risk to the conservation status of temperate rainforest from exposure to mining, commercial logging, and climate change: a Tasmanian case study.” (Biological Conservation 215 2017): 19-29.
Mason, Anthony. “Reflections on legal issues in the Tasmanian Dams Case.” (Griffith Law Review 24.1 2015): 16-21.
Mencshelyi, Zaccary Molloy, Stephen Puttick, and Murray Wesson. “The Executive and the External Affairs Power: Does the Executive’s Prerogative Power to Vary Treaty Obligations Qualify Parliamentary Supremacy.” (UW Austl. L. Rev. 43 2018): 286.
Murphyores Incorporated Pty. Ltd. v The Commonwealth (1976), 136 C.L.R. 1
Pillai, Sangeetha, and George Williams. “Commonwealth power and environmental management: Constitutional questions revisited.” ENVIRONMENTAL AND PLANNING LAW JOURNAL 32.5 (2015): 395-408.
Rogers, Nicole, and Brendan Mackey. “Wild law perspective on wilderness management: Managing the Tasmanian wilderness world heritage area.” (Australasian Journal of Natural Resources Law and Policy 18.2 2015): 145.
Stephenson, Peta. “Nationhood and Section 61 of the Constitution.” (UW Austl. L. Rev. 43 2018): 149.
The Australian Commonwealth Constitution S 51(xxix)
Wong, Daryl. “External Affairs in Flux: R v. Alqudsi (2015) 300 FLR 11;[2015] NSWSC 1222.” (U. Tas. L. Rev. 35 2016): 131.
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