Commonwealth v Tasmania

Last updated

Commonwealth v The State of Tasmania
Coat of Arms of Australia.svg
Court High Court of Australia Canberra
Full case nameThe Commonwealth of Australia v State of Tasmania
Decided1 July 1983
Citation(s) [1983] HCA 21, (1983) 158  CLR  1
Case history
Prior action(s)none
Subsequent action(s)none
Court membership
Judge(s) sitting Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane & Dawson JJ
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 (popularly known as the Tasmanian Dam Case) [1] was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia. The case centred on the proposed construction of a hydro-electric dam on the Gordon River in Tasmania, which was supported by the Tasmanian government, but opposed by the Australian federal government and environmental groups.

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, below its confluence with the Franklin River, in Tasmania's rugged south-west region. The dam would have flooded the Franklin River. In June 1981 the Labor state government created the Wild Rivers National Park in an attempt to protect the river. The boundaries would have allowed the construction of another dam lower on the Gordon River, below its confluence with the Olga River.

In May 1982, a Liberal state government was elected which supported the dam. The federal Liberal government at the time, led by Malcolm Fraser, made offers of compensation to Tasmania, however, they were not successful in stopping the dam's construction. [2]

In November 1982, UNESCO declared the Franklin area a World Heritage Site after a nomination by the Labor government, forwarded by the Commonwealth, was accepted by the World Heritage Committee. [3] During the 1983 federal election, the Labor party under Bob Hawke had promised to intervene and prevent the construction of the dam. After winning the election, the Labor government passed the World Heritage Properties Conservation Act 1983 (Cth), [4] 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.

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. [5]

Case

The case revolved around several major constitutional issues, the most important being the constitutional validity of the World Heritage Properties Conservation Act 1983 (or World Heritage Act). The division of powers between the Australian federal government and the individual state governments are defined mainly by section 51 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 gives the federal parliament the power to make laws with respect to external affairs, a nebulously defined provision. [6] 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 this case, the Convention Concerning the Protection of the World Cultural and Natural Heritage, [7] which governs UNESCO's World Heritage Site program.

The Tasmanian government (as well as the governments of Victoria, New South Wales and Queensland) 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 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 organizations such as the United Nations in existence (not to mention multinational corporations). 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 an international character, it is sufficient that it:

It is important to note that the decisions of UNESCO in designating World Heritage Sites have no binding force upon any government. However, the ratification of the convention could be seen as a commitment to upholding its aims, and an acceptance of obligations under it.

Corporations power

Section 51(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 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 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 Constitution of Australia: for example, acquiring land to build a military base). The crucial phrase in this section is "on just terms". Tasmania argued that the federal government has deprived it of property unjustly bypassing 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.

Decision

A four to three majority of the seven members of the High 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. [8]

Consequences

The case ended the HEC's plans to construct more hydro-electric dams in Tasmania.

The legal debate over the extent of the "external affairs" power continued for a decade in a series of cases in the High Court in which the wide view of the external affairs power prevailed. It is 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 fulfill Australia's international legal obligations. [9] [10] [11] [12] [13]

Due to the large number of international obligations that Australia has accepted under international treaties, the external affairs power in section 51(xxix) gives the Australian Government a very wide constitutional power to make laws on many subjects, including protecting the environment.

Large parts of Australia's main national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), [14] depend for their constitutional validity on the decision in the Tasmanian Dam Case regarding the external affairs power.

These include the protection of World Heritage properties, [15] Ramsar wetlands, [16] threatened species and threatened ecological communities, [17] and migratory species. [18]

Definition of Aboriginality

The case was later referred to in other cases regarding the definition of Aboriginality (Aboriginal Australian identity). Commonwealth v Tasmania had defined an Aboriginal or Torres Strait Islander as "a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives". The ruling was a three-part definition comprising descent, self-identification and community identification. The first part – descent – was genetic descent and unambiguous, but led to cases where a lack of records to prove ancestry excluded some. Self- and community identification were more problematic as they meant that an Indigenous Australian person separated from their community due to a family dispute could no longer identify as Aboriginal or Torres Strait Islander. [19] [20] As a result, there arose court cases throughout the 1990s where excluded people demanded that their Aboriginality be recognised.

In 1998 Justice Merkel held in Shaw v Wolf that Aboriginal descent is "technical" rather than "real" – thereby eliminating a genetic requirement. [20] This decision established that anyone can classify themself legally as an Aboriginal, provided they are accepted as such by their community. [19]

See also

Related Research Articles

<span class="mw-page-title-main">Franklin Dam controversy</span> Proposed dam in Tasmania, Australia

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 the most significant environmental campaigns in Australian history.

Sir Harry Talbot Gibbs 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. He was known as one of Australia's leading federalist judges although he presided over the High Court when decisions such as Koowarta v Bjelke-Petersen in 1982 and Commonwealth v Tasmania expanded the powers of the Commonwealth at the expense of the states. Gibbs dissented from the majority verdict in both cases. On 3 August 2012, the Supreme Court of Queensland Library opened the Sir Harry Gibbs Legal Heritage Centre. It is the only legal heritage museum of its kind in Queensland and features a permanent exhibition dedicated to the life and legacy of Sir Harry Gibbs.

Section 51 of the Constitution of Australia enumerates the legislative powers granted to the Parliament of Australia by the Australian States at Federation. Each subsection, or 'head of power', provides a topic under which the parliament is empowered to make laws. There are other sections in the constitution that enable the parliament to enact laws, although the scope of those other sections are generally limited in comparison with section 51.

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.

<span class="mw-page-title-main">1967 Australian referendum (Aboriginals)</span> 1967 constitutional referendum on the legal status of Indigenous Australians

The second question of the 1967 Australian referendum of 27 May 1967, called by the Holt government, related to Indigenous Australians. Voters were asked whether to give the Commonwealth Parliament the power to make special laws for Indigenous Australians in states, and whether Indigenous Australians should be included in official population counts for constitutional purposes. The term "the Aboriginal Race" was used in the question.

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

<span class="mw-page-title-main">Australian legal system</span>

The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is the same across the states and territories.

The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.

Section 51(xxvi) of the Constitution of Australia, commonly called "the race power", is the subsection of Section 51 of the Constitution of Australia granting the Australian Commonwealth the power to make special laws for people of any race.

Section 51(xx) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the power to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This power has become known as "the corporations power", the extent of which has been the subject of numerous judicial cases.

Section 51(xxix) 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".

Section 51(xxxi) is a subclause of section 51 of the Constitution of Australia. It empowers the Commonwealth to make laws regarding the acquisition of property, but stipulates that such acquisitions must be on just (fair) terms. The terms is sometimes referred to in shorthand as the 'just terms' provision.

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

In Australian constitutional law, chapter III courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in chapter III of the Australian Constitution.

<i>Strickland v Rocla Concrete Pipes Ltd</i>

Strickland v Rocla Concrete Pipes Ltd, also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51(xx) of the Australian Constitution. This was an important case in Australian constitutional law because it overruled the decision in the earlier case of Huddart, Parker & Co Pty Ltd v Moorehead, which held that the corporations power only extended as far as the regulation of their conduct in relation to their transactions with or affecting the public. Since this case, the Commonwealth has had at least the ability to regulate the trading activities of trading corporations, thus opening the way for an expansion in Commonwealth power.

<i>DEmden v Pedder</i>

D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian constitutional law of the degree to which the two levels of Australian government were subject to each other's laws.

<span class="mw-page-title-main">World Heritage Properties Conservation Act 1983</span>

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.

<i>Richardson v Forestry Commission of Tasmania</i>

Richardson v Forestry Commission of Tasmania is an Australian legal decision in which the High Court of Australia upheld a Commonwealth law providing interim protection of an area of Tasmanian wilderness while an inquiry assessed what parts of the wilderness should be listed for World Heritage protection.

<i>Roche v Kronheimer</i>

Roche v Kronheimer is an early case in which the High Court considered the defence power and external affairs power of the Commonwealth under the Australian Constitution and the Parliament's power to delegate certain legislative powers to the Executive. The Court concluded that Federal Parliament had the power to implement the Treaty of Versailles under the defence power and to delegate that implementation to the Governor-General. Higgins J also saw it as a valid exercise of the external affair power.

Section 122 of the Constitution of Australia deals with matters relating to the governance of Australian territories. It gives the Commonwealth Parliament complete legislative power over the territories. This power is called the territories power. The extent and terms of the representation of the territories in the House of Representatives and the Senate are also stated as being at the discretion of the Commonwealth Parliament.

References

  1. ↑ Commonwealth v Tasmania (Tasmanian Dams case) [1983] HCA 21 , (1983) 158 CLR 1(1 July 1983), High Court
  2. ↑ Willmott, John; Dowse, Julian (2004). Process and Participation (3rd ed.).
  3. ↑ Kellow, A. (1989). "The dispute over the Franklin River and south-west wilderness area in Tasmania, Australia". Natural Resources Journal. 29 (1): 129–146.
  4. ↑ World Heritage Properties Conservation Act 1983 (Cth)
  5. ↑ "Tasmanian Dam Case". Environmental Law Australia. Retrieved 11 July 2015.
  6. ↑ Quick, John; Garran, Robert (1901). The Annotated Constitution of the Australian Commonwealth. Angus and Robertson. 631.
  7. ↑ "Convention Concerning the Protection of the World Cultural and Natural Heritage". Recommendation concerning the Protection at National Level, of the Cultural and Natural Heritage. UNESCO. 16 November 1972. Retrieved 11 July 2015.
  8. ↑ "Commonwealth v Tasmania ("Tasmanian Dam case") [1983] HCA 21; (1983) 158 CLR 1 (1 July 1983)".
  9. ↑ R v Burgess; Ex parte Henry [1936] HCA 52 , (1936) 55 CLR 1 (10 November 1936), High Court
  10. ↑ Koowarta v Bjelke-Petersen [1982] HCA 27 , (1982) 153 CLR 168(11 May 1982), High Court
  11. ↑ Richardson v Forestry Commission of Tasmania [1998] HCA 10 , (1988) 164 CLR 261(10 March 1988), High Court.
  12. ↑ Queensland v Commonwealth (the Wet Tropics Case) [1989] HCA 36 , (1989) 167 CLR 232(30 June 1989), High Court
  13. ↑ Victoria v Commonwealth (Industrial Relations Act case) [1996] HCA 56 , (1996) 187 CLR 416 at 487-488(4 September 1996), High Court
  14. ↑ "About the EPBC Ac". environment.gov.au. Department of the Environment and Energy. Retrieved 8 November 2017.
  15. ↑ "World Heritage properties and National Heritage places". Department of the Environment . Australian Government. Retrieved 11 July 2015.
  16. ↑ "Wetlands of international importance (Ramsar wetlands)". Department of the Environment . Australian Government. Retrieved 11 July 2015.
  17. ↑ "Listed threatened species and ecological communities". Department of the Environment . Australian Government. Retrieved 11 July 2015.
  18. ↑ "Listed migratory species". Department of the Environment . Australian Government. Retrieved 11 July 2015.
  19. 1 2 "36. Kinship and Identity: Legal definitions of Aboriginality". Australian Law Reform Commission. 28 July 2010. Archived from the original on 28 February 2019. Retrieved 4 January 2020.
  20. 1 2 Connell, Rachel (1998). "Who is an 'Aboriginal Person'?: Shaw v Wolf". Indigenous Law Bulletin. 4 (12): 20. Retrieved 4 January 2020– via austlii.

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.