NationMaster - Encyclopedia: Commonwealth v Tasmania

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 case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia. 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. 1983 (MCMLXXXIII) was a common year starting on Saturday of the Gregorian calendar. ... // Case citation is the system used in common law countries such as the United States, England and Wales, Canada, New Zealand, Australia and India to uniquely identify the location of past court cases in special series of books called reporters or law reports. ... A court is an official, public forum which a sovereign establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ... A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. ... High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ... July 1 is the 182nd day of the year (183rd in leap years) in the Gregorian Calendar, with 183 days remaining. ... 1983 (MCMLXXXIII) was a common year starting on Saturday of the Gregorian calendar. ... Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ... Conservation in Australia is an issue of state and federal policy. ... Hydroelectric dam diagram The waters of Llyn Stwlan, the upper reservoir of the Ffestiniog Pumped-Storage Scheme in north Wales, can just be glimpsed on the right. ... Scrivener Dam, in Canberra, Australia, was engineered to withstand a once-in-5000-years flood event A dam is a barrier across flowing water that obstructs, directs or retards the flow, often creating a reservoir, lake or impoundment. ... The Franklin River lies in the Franklin-Gordon Wild Rivers National Park in the heart of the Tasmanian Wilderness World Heritage Area. ... Emblems: {{{Emblems}}} Motto: Ubertas et Fidelitas (Fertility and Faithfulness) Slogan or Nickname: The Apple Isle Other Australian states and territories Capital Hobart Government Const. ... The government of Australia was established in 1901 by the Australian Constitution. ... Bold textHello ...

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 Franklin River, in Tasmania's rugged south-west region. In June 1981 the Labor state government created the Wild Rivers National Park in an attempt to protect the river. The Franklin Dam project was an attempt to dam the Gordon River in Tasmania, Australia, for the purposes of hydroelectricity. ... 1978 (MCMLXXVIII) was a common year starting on Sunday (the link is to a full 1978 calendar). ... Hydro Tasmania is the predominant electricity generator in the state of Tasmania, Australia. ... The coat of arms of Tasmania. ... Hydroelectric dam diagram The waters of Llyn Stwlan, the upper reservoir of the Ffestiniog Pumped-Storage Scheme in north Wales, can just be glimpsed on the right. ... Scrivener Dam, in Canberra, Australia, was engineered to withstand a once-in-5000-years flood event A dam is a barrier across flowing water that obstructs, directs or retards the flow, often creating a reservoir, lake or impoundment. ... The Franklin River lies in the Franklin-Gordon Wild Rivers National Park in the heart of the Tasmanian Wilderness World Heritage Area. ... 1981 (MCMLXXXI) was a common year starting on Thursday of the Gregorian calendar. ... 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 supported the dam. The federal government at the time, also Liberal (under Malcolm Fraser), rejected requests for federal intervention in what was widely regarded as a Tasmanian state issue. 1982 (MCMLXXXII) was a common year starting on Friday of the Gregorian calendar. ... The Liberal Party of Australia is an Australian liberal conservative political party. ... John Malcolm Fraser AC, CH (born 21 May 1930), Australian politician and 22nd Prime Minister of Australia, came to power in the circumstances of the dismissal of the Whitlam government. ...

In November 1982, UNESCO declared the Franklin area a World heritage site. During the federal election of 1983, the Labor party under Bob Hawke had promised to intervene and prevent construction of the dam. 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. 1982 (MCMLXXXII) was a common year starting on Friday of the Gregorian calendar. ... UNESCO logo UNESCO (United Nations Educational, Scientific and Cultural Organization) is a specialized agency of the United Nations established in 1945. ... Site #86: Memphis and its Necropolis, including the Pyramids of Giza (Egypt). ... Robert James Lee Hawke AC (born 9 December 1929) is a former Australian trade union leader turned politician who became the 23rd Prime Minister of Australia. ... An election is a decision making process whereby people vote for preferred political candidates or parties to act as representatives in government. ... Excavation is the best-known and most commonly used technique within the science of archaeology. ... The Tasmanian Wilderness is a World Heritage Area in Tasmania, Australia. ...

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 of 1983, both governments put their case to the High Court of Australia. The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia. ... 1983 (MCMLXXXIII) was a common year starting on Saturday of the Gregorian calendar. ... High Court entrance 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. 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. This work is copyrighted. ... This work is copyrighted. ... Rock Island Bend Morning Mist, Rock Island Bend, Franklin River is a photograph by Peter Dombrovskis. ... The Tasmanian Wilderness Society was formed initially as a protest group to fight against the looming construction of the Franklin Dam, in Southwest Tasmania. ... A map displaying todays federations. ... Section 51 of the Australian Constitution describes the powers of the Australian federal parliament. ... The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia. ...

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. 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. 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. In recent years, most attention has focused on the use of the power to pass legislation giving... UNESCO logo UNESCO (United Nations Educational, Scientific and Cultural Organization) is a specialized agency of the United Nations established in 1945. ... Site #86: Memphis and its Necropolis, including the Pyramids of Giza (Egypt). ...

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. Emblems: Pink heath (floral)Weedy Seadragon (Aquatic) helmeted honeyeater (bird) Leadbeaters possum (faunal) Motto: Peace and Prosperity Slogan or Nickname: Garden State, The Place To Be, On The Move Other Australian states and territories Capital Melbourne Government Const. ... Emblems: Floral - Waratah (Telopea speciosissima); Bird - Kookaburra (Dacelo gigas); Animal - Platypus (Ornithorhynchus anatinus); Fish - Blue Groper (Achoerodus viridis) Motto: Orta Recens Quam Pura Nites (Newly Risen, How Brightly You Shine) Slogan or Nickname: First State, Premier State Other Australian states and territories Capital Sydney Government Const. ... Emblems: Faunal - Koala (Phascolarctos cinereus); Floral - Cooktown orchid (Dendrobium bigibbum); Bird - Brolga (Grus rubicunda); Aquatic - Barrier Reef Anemonefish (Amphiprion akindynos); Gem - Sapphire; Colour - Maroon Motto: Audax at Fidelis (Bold but Faithful) Slogan or Nickname: Sunshine State, Smart State Other Australian states and territories Capital Brisbane Government Const. ... The Right Honourable Sir Harry Talbot Gibbs, GCMG, AC, KBE (February 7, 1917 - 25 June 2005) 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. ...

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. Sir Anthony Mason KBE AC, former Chief Justice of the High Court of Australia. ... 1901 (MCMI) was a common year starting on Tuesday (see link for calendar) of the Gregorian calendar (or a common year starting on Wednesday of the 13-day-slower Julian calendar). ... An international organization (also called intergovernmental organization) is an organization of international scope or character. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... A multinational corporation (MNC) or multinational enterprise (MNE) or transnational corporation (TNC) or multinational organization (MNO) is a corporation or enterprise that manages production establishments or delivers services in at least two countries. ...

In his judgement, Justice Murphy said that in order for a law to have international character, it is sufficient that it: Hon Lionel Murphy Lionel Keith Murphy (30 August 1922 - 21 October 1986), Australian politician, was Attorney-General in the Government of Gough Whitlam, and a Justice of the High Court of Australia. ...

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. This article or section is missing references or citation of sources. ... It has been suggested that Protocol (treaty) be merged into this article or section. ... Flag of World Health Organization The World Health Organization (WHO) is a specialized agency of the United Nations, acting as a coordinating authority on international public health, headquartered in Geneva, Switzerland. ... The International Labour Organization (ILO) is a specialized agency of the United Nations to deal with labour issues. ... UNESCO logo UNESCO (United Nations Educational, Scientific and Cultural Organization) is a specialized agency of the United Nations established in 1945. ... Site #86: Memphis and its Necropolis, including the Pyramids of Giza (Egypt). ... Ratification is the process of adopting an international treaty, or a constitution or other nationally binding document (such as an amendment to a constitution) by the agreement of multiple subnational entities. ...

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 corporation (section 51 subsection 20 provides that the federal government has powers to make laws regarding corporations). However, the HEC was engaged in the widespread production and sale of electricity, and it did have a degree of independence from the government. Hydro Tasmania is the predominant electricity generator in the state of Tasmania, Australia. ... A corporation is a legal person which, while being composed of natural persons, exists completely separately from them. ...

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). 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. Section 51(xxxi) of the Australian Constitution provides that the parliament has the power to make laws for the peace, order and good government of the Commonwealth with respect to: The acquisition of property on just terms from any State or person for any purpose in respect of which the... Section 51 of the Australian Constitution describes the powers of the Australian federal parliament. ... Sir Gerard Brennan, was born in Rockhampton, Queensland, on 22 May 1928. ...

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. An African-American drinks out of a water fountain marked for colored in 1939 at a street car terminal in Oklahoma City. ... Sexism is discrimination between people based on their Sex rather than their individual merits. ... The word discrimination comes from the Latin discriminare, which means to distinguish between. To discriminate socially is to make a distinction between people on the basis of class or category without regard to individual merit. ...

Judges sitting

The Right Honourable Sir Harry Talbot Gibbs, GCMG, AC, KBE (February 7, 1917 - 25 June 2005) 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. ... Sir Anthony Mason KBE AC, former Chief Justice of the High Court of Australia. ... Hon Lionel Murphy Lionel Keith Murphy (30 August 1922 - 21 October 1986), Australian politician, was Attorney-General in the Government of Gough Whitlam, and a Justice of the High Court of Australia. ... Sir Ronald Wilson Sir Ronald Wilson, AC , KBE , CMG , QC , LL.M , LL.B ( 23 August 1922- 15 July 2005) was born on 23 August 1922 . ... Sir Gerard Brennan, was born in Rockhampton, Queensland, on 22 May 1928. ... Sir William Deane The Honourable Sir William Patrick Deane AC KBE (born 4 January 1931), Australian judge and 22nd Governor-General of Australia, was born in Melbourne, Victoria. ... Sir Daryl Dawson AC KBE CB (born 1933), Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997. ...

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