Cultural Artefact: Commonwealth v Tasmania (1983)

From
31 May 1983
To
1 July 1983
Alternative Names
  • The Commonwealth of Australia v State of Tasmania
  • Tasmanian Dam Case

Summary

Commonwealth v Tasmania (1983) 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia. The High Court ruling put an end to the construction of the Franklin River Dam.

The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia.

Details

On 5 March 1983, the Australian Labor Party won the federal election with a large swing. The new Prime Minister, Bob Hawke, had vowed to stop the Franklin River Dam from being constructed in Tasmania. However, in Tasmania, the vote went against the national trend and the Liberals held all five seats.

Hawke's government first passed regulations under the existing National Parks and Wildlife Conservation Act 1975, and then passed new legislation, the World Heritage Properties Conservation Act 1983, which prohibited Franklin River dam-related clearing, excavation and building activities that had been authorised by Tasmanian state legislation.

The Tasmanian government ignored both the federal regulations and legislation and continued to order work on the dam. The issue was brought before the High Court with the first day of hearings on 31 May 1983.

The government of Tasmania claimed that the federal government had no powers under the Constitution to pass either the regulations or the legislation. Their position held that as the right to legislate for the environment was not named in the Constitution, it was a residual power held by the states, and therefore the World Heritage Properties Conservation Act 1983 was unconstitutional. The federal government argued that they had the right to legislate in this way, under the 'external affairs' provision of the Constitution as, by passing legislation blocking the dam's construction, they were fulfilling their responsibilities under an international treaty (the UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Australia having signed and ratified that convention and the Franklin River having been listed on it). The federal government also asserted that their legislation was supported by the constitutional powers of a federal government to pass laws about corporations and about the people of any race (in this case the aboriginal race, whose sacred caves along the Franklin would have been inundated).

On 1 July 1983, the High Court on circuit in Brisbane ruled by a vote of 4 to 3 in the federal government's favour. Judges Mason, Murphy, Brennan and Deane were in the majority and justices Wilson and Dawson with Chief Justice Gibbs were in the minority. This ruling gave the federal government the power to legislate on any issue if necessary to enforce an international treaty and has been the subject of controversy ever since.

Justice Lionel Murphy wrote most broadly of the Franklin Dam decision's broader environmental and social implications in terms of the UNESCO Convention's common heritage of humanity principle, stating:
The preservation of the world's heritage must not be looked at in isolation but as part of the co-operation between nations which is calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace and displace those of narrow nationalism and alienation which promote war...[t]he encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual world heritage, is important in the endeavour to avoid the destruction of humanity.

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