Interpretation of Commonwealth v Tasmania (1983) 158 CLR 1

This essay discusses the interpretation of Commonwealth v Tasmania (1983) 158 CLR 1 case, where the High Court delivered split decisions on the power of external affairs and section 51(29) of the Australian constitution. It also analyzes the validity of the World Heritage Act and the proposal of constructing a dam on Gordon River in Tasmania.

Running Head: CONSTITUTIONAL LAW 0
[School]
[Course title]
CONSTITUTIONAL LAW
AUSTRALIA

CONSTITUTIONAL LAW 1
In this essay, the argument will be conducted upon the interpretation of the Commonwealth v
Tasmania (1983) 158 CLR 1, case, where there were many split decisions delivered by High
Court, which had mostly supported the rationality of the Commonwealth laws. But it was also
seen that the justice delivered by the Court was divided due to the appropriate understanding of
the power of the external affairs along with section 51(29) of Australian constitution. Further, in
this case, it was also seen that the minority's interpretation was correct as compared to that of the
majority which was found incorrect. Through this essay, it will thus be discussed that to what
extent the above statement made by the court is correct. I would agree to the viewpoint presented
by the federal governments as well as the environmental group of Australia and the reasons
behind my beliefs would be proved under.
The major issue, in this case, was related to the validity of the World's Heritage Act. And the
facts were as follows: firstly proposal was made by Hydro-Electric Commission HEC. For
building up the dam on Tasmania, a Golden River, which could have easily bring flood in
Franklin River. Then in the year 1982, the dam was supported by the liberal Government of
Tasmanian and later they denied. The World Heritage Properties and Conservation Act 1983
was approved by the government so to prevent them from constructing the dam (view, 1983).
The validity of this act along with many other constitutional issues was challenged by the
Tasmanian Government. It was argued that the World Heritage Act could be restricted under
section 51(20) of the power of the corporation and section 51 (29) of external affairs power given
to the constitution. It was also argued by Tasmania that, bypassing the World Heritage Act
commonwealth had wrongfully given the disadvantage to the property of Tasmania and has also
broken the laws installed in section 51(31) of the constitution (Saunders, 2010).

CONSTITUTIONAL LAW 2
With a very less majority, it was determined by the court that construction of the dam will be
legitimately prevented by the commonwealth. Under external affairs power, the authorization
was given to the World Heritage Act. Due to the high degree of independence in making
decisions and engagement in the large production of the electricity, the HEC was considered to
be a corporation of trading, even though it was a part of the government. Lastly due to
deprivation of the property or over the sight, Tasmania had no proprietary right for proposing the
dam and the land was also not a private one. Thus it can be determined that Tasmania was not
deprived of any property (McGrath, 1983).
Section 51(29) of the Constitutional Act of Australia provides the legislative right to the
Common Wealth Parliament of Australia in respect of their external affairs. The constitution of
Australia was framed in the year 1901, where the term external affairs were used and not the
foreign affairs and all this was done to clarify Australian's relationships with that of the UK. In a
leading case of R v Sharkey (1949) HCA 46 CLR 121, the Chief Justice Latham determined that
external affairs are not just limited to the preserving the friendly relationships with the domains
of others but is extended to having a relationship with all the nations situated outside Australia.
Whereas in case of Koowarta v Bjelke-Petersen (1982) HCA 27, CLR 121 justice Brennan of
High Court focused on or tried to extend its relations with other International personalities,
mostly with UN and its other specialized agencies ( Larsen, 2017).
Matters external to Australia were interpreted differently by different justices for example with
accord to Chief Justice Barwick in the given case of seas and submerged part of lands the
external power could extend to all the things which cover the external level of Australia. Then
according to Justice Mason, they are those matters which held up outside the Australian
boundary. This decision got its importance in Polyukhovich v Commonwealth the case of War

CONSTITUTIONAL LAW 3
crimes Act (1991) HCA 32 CLR 521. All the judges accept Brennan, in this case, held up that
section 51(29) has got a sufficient ground for granting those powers which could support a law
for identifying and prosecuting the crimes committed during world war II in Europe. This
conclusion was mainly based on the geographic locations in which the acts were done and was
extended to physical Australia and this point was stated by the Chief Justice Mason and other
impartialities like Deane, McHugh, and Dawson (Jackson, 2016).
In the given case of Tasmania, this application of external affairs powers had a very varied or
different effect on the other considered provisions. Like for example s 9(2) due to insufficiency
of the specific scope of the prohibition, was held invalid. Whereas s 9(2) which was used to
protect the acts done was otherwise considered as unlawful under (1) but were held liable for
damaging or destroying the areas and this was held by a majority to be not completely general
(Harrison, 2015).
Under s 69 of NPWCA i.e. National Parks and Wildlife Conservation Act 1975, the
authorization of making, regulating and implementing the agreements relating to international
environmental treaties were given to the Governor-General of whose Australia was also a party.
These regulations were held valid under external affairs by the High Court. It could be very well
held up that the power of external affairs cannot be called the general power which was used to
create legislation. The term legislation here means to be appropriate and adapted manner while
implementing the purposes of the treaty (Harrison, 2015).
Commonwealth v Tasmania case was popularly identified as the Tasmania Dam Case. This
circumstance had a lot of significance in the courtrooms of Australia, which was decided in the
High Court of Australia on July 1, 1983 (Parbhakar-Fox, 2016). It was also determined as a
landmark case in the Australian constitutional law, which brought up a significant movement in

CONSTITUTIONAL LAW 4
the conservation history of Australia. The main focusing area, in this case, was the proposal of
construction of a dam which was hydroelectric to be built on Gordon River in Tasmania. This
project got the enormous support of the government of Tasmania but was largely opposed by the
federal governments and the environmental groups of Australia (Dixon, & Williams, 2015).
While deciding this case, the majority was 4:3 out of the 7 members of the Court determined that
the decision of the federal government that had denied to the dam construction. Whereas the
World Heritage Act was held up below the powers of the external affairs. Though the alternate
portions of the same act which were not held to be valid under the provision which was stated for
banning the dam was held valid. The outcome of this decision indicated that there was a need to
construct more and more dams in Australia and the HEC was asked to plan and construct more
of hydro-electric dams in Tasmania. Hydro-Electric Commission in the year 10978 was
considered as a body that was owned by the government of Tasmania and its main purpose was
to build hydro-electric dams on the Gordon River under the influence of Franklin River in
Australia (Clark, 2013). But here, in this case, it was seen that if this dam would be built then the
southwest region of Tasmania would bring flood in the Franklin River. Then after in the year
1981, a Wild Rivers National Park project was framed by the government of State labor whose
basic attempt was to protect all the rivers. Next in the year 1982 for supporting the dam a liberal
state government was elected (Blake, 2015). These governments were headed by Malcolm
Fraser, who made compensatory offers for compensating to Tasmania, though it was not
successful in preventing the dam constructions. Then in 1982 UNESCO announced that the area
of Franklin as a site of World heritage after it got nominated by the labor government.it was
promoted to the commonwealth and thus acknowledged by World Heritage Committee (Atorney,
2015). Then a promise was made to prevent the construction of this dam by Bob Hawke in the

CONSTITUTIONAL LAW 5
year 1983 under the federal election by the labor party. All the actions taken above were
challenged by the Tasmanian Government stating that no such regulations were given to the
federal government by the Australia Constitution. And lastly, this case was held up in front of the
High Court in year 1983 in Australia by both of the Governments.
Hence from the above discussions, it can very clearly be concluded that the viewpoint presented
by the federal governments as well as the environmental group of Australia were relevant the
dam should be prevented to be constructed as it could bring flood in to the other or harm
humanity. Though this decision was taken by the minority but was hence to be considered as to
be the final one at the end.

CONSTITUTIONAL LAW 6
References
Larsen, , 2017. World Heritage and Human Rights: Lessons from the Asia-Pacific and global
arena. London: Routledge.
Atorney, N., 2015. The Constitution of the Commonwealth of Australia. Australia: Cambridge
University Press.
Blake, J., 2015. International Cultural Heritage Law. OUP Oxford.
Clark, M., 2013. Remembering the Tasmanian Dam Case. [Online] Available at:
https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/24/clark-tasmanian-dam/ [Accessed 2019].
Dixon, , & Williams, , 2015. The High Court, the Constitution and Australian Politics.
Australian: Cambridge University Press.
Harrison, R., 2015. Beyond “natural” and “cultural” heritage: toward an ontological politics of
heritage in the age of Anthropocene. Heritage & Society, 8(1), pp.24-42.
Jackson, L.M.a.P.-F.A., 2016. Mineralogical and geochemical characterization of the Old
Tailings Dam, Australia: Evaluating the effectiveness of a water cover for long-term AMD
control. Applied geochemistry, 68, pp.64-78.
McGrath, C., 1983. Commonwealth v Tasmania (1983). [Online] Available at:
http://www.saulwick.info/biogs/E000444b.htm [Accessed 2019].
Parbhakar-Fox, A..K.D.a.G.J., 2016. Metal extraction using bioleaching: an example from the
Old Tailings Dam, Tasmania, Australia. In Biohydrometallurgy, pp.1-14.
Saunders, C., 2010. The Constitution of Australia: A Contextual Analysis. Australia: Bloomsbury
Publishing.
view, 1983. Commonwealth v Tasmania (The Tasmanian Dam Case). [Online] Available at:
https://www.ato.gov.au/law/view/document?DocID=JUD%2F158CLR1%2F00004 [Accessed

CONSTITUTIONAL LAW 7
2019].