Commonwealth of Australia v State of Tasmania: A Landmark Case in Australian Environmental Law

This report studies one of the landmark cases in the history of Australian legislation first is the case of the commonwealth of Australia v state of Tasmania. This case was regarding a dispute that has occurred between the federal government and the state of Tasmania regarding the construction of a Dam. The government of the commonwealth of Australia was against the construction of the dam citing the amount of pollution the construction of the dam was going to cause.

The Commonwealth of Australia v state
of Tasmania-Draft

Table of Contents
Introduction:....................................................................................................................................3
Case Description:.........................................................................................................................3
Verdict of the case:......................................................................................................................5
Overall Outcome & impact:.........................................................................................................6
Influence of political scenario over case verdict:........................................................................8
Conclusion:......................................................................................................................................9
References......................................................................................................................................10

Introduction:
This report studies one of the landmark cases in the history of Australian legislation first is the
case of the commonwealth of Australia v state of Tasmania. This case was regarding a dispute
that has occurred between the federal government and the state of Tasmania regarding the
construction of a Dam. The government of the commonwealth of Australia was against the
construction of the dam citing the amount of pollution the construction of the dam was going to
cause. The federal government of the commonwealth of Australia was supported by several
environmental activist groups in the execution of the case. The case was a landmark in terms of
the judgement and its implication on one hand and the political impact that the case had on the
other hand1. The labour government and the liberal government were on opposite stances
regarding the construction of the dam. The support of the public regarding the environment was
remarkable as the labour government won the election because of its stand regarding the decision
of stopping the construction of the dam. The labour government kept its election promise and
stopped the construction of the dam. Several legislative terms has been redefined in the end of
the case. The jurisdiction of the federal government’s power has also been specially defined
because of the case.
Case Description:
The Commonwealth v Tasmania case which is popularly also known as the Tasmanian Dam
Case1is one of the most significant court case that was being held in Australian which is related
to the Australian environmental law. The verdict of this court case came from the Australian
high court o n 1 July 1983.
The case was based on the opposition given to the construction of a hydro-electric dam on the
Gordon River in Tasmania by the federal government and environmental groups of Australia;
whereas the Tasmanian government totally supported the establishment of the dam on River
Gordon2.
1 Australia Close-Up (The Department, 1987).
2 Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal Professionals
(Judgments And Decisions Enhanced) (1983) Jade.io <https://jade.io/summary/mnc/1983/HCA/21>.

The case can be mentioned as a landmark in the Australian construction law. The proposal for
establishing the Franklin Dam over the Gordon River came out of the proposal that was being
placed by Tasmanian Hydro-Electric Commission in 1978.3The Tasmanian Hydro-Electric
Commission is owned by the Tasmanian Government and therefore the proposal of establishing
this dam came from the government of Australia. But the evironmentoligts noticed that the dam
is going to fetch flood for a huge area in the state of Tasmania. Moreover the area in which the
dam was being proposed for establishment was declared as a World Heritage site in 1982. But
mere declaration of the area as a world heritage site was not enough for stopping the construction
of the proposed dam by the Tasmanian government. Due to strong protest from the different
evironmentoligts group in 1982 the government of Tasmania passed the necessary law so that
nobody can put any kind of disruption in the process of construction of the dam and Tasmanian
Hydro-Electric Commission accordingly started the primary works for the construction of the
dam4.
The chief reason of the importance of the case is because of the fact that the case has been
considered as the point of origination of the environmental legislation of Australia. The case was
regarding a construction of a hydro electric dam that was going to be constructed by the hydro
electric commission of Tasmania. This act was supported by the government of Tasmania. The
Franklin River was the place for the formation of the dam. The construction of the dam was
likely to impact by causing of flood and destruction of ecological set up of the environment. The
labour government in the 1981 formed Wild river national park for the formation of the dam.
The liberal government which was elected in 1982 was in support of the construction of the dam.
The twist in the event came with the declaration of Franklin River as a national heritage site by
UNESCO in the year 1982. The election promise of the labour party in the year 1983 was the
stopping of the construction of the dam. The popularity of the case is visible from the fact that
the labour party was successful in winning the case. The labour party passed two environmental
legislations which is one of the reasons that this case is considered as landmark. These two
landmarks were world heritage properties conservation act and national parks and wildlife
conservation act. These acts made it illegal to clear or excavate the wilderness of Tasmania. The
federal authority in making such legislation was challenged by the government of Tasmania.
3 Australia's Constitution, Federalism And The ‘Tasmanian
...<https://www.sciencedirect.com/science/article/pii/0260982785900011>
4 Lloyd Robson, A History Of Tasmania (Oxford University Press, 1992).

Both the government fought the case in the high court of Australia. The validity of the world
heritage act and the section 51 of the constitution regarding the separation of power of the federal
government and the state government was the chief issue of the case. The “external affairs”
clause of the act was justified by the high court which gave the federal government the right to
make the world heritage act and at the same time stop the construction of the dam. The win of
the federal government in the high court case also validated the power of the federal
government5.
The government of Tasmania along with other federal states of Australia has challenged the act
of the federal government to be negatively impacting the federal structure of Australia. the chief
argument on the part of the federal government was the fact that the international law was under
the jurisdiction of federal government and the UNESCO aim of designating world heritage site
even though doesn’t have any compulsory pressure on the government of any state but can be
considered as a international commitment that can be promoted by the federal government of a
country. So in this regard the act of the federal government of Australia was in sync with the
constitutional regulations. The external affair power is assigned in section 51 (xxix) of the
constitution of Australia6.
Verdict of the case:
Around four to three of the majority of the seven members jury board of the High Court decided
that the federal government of Australia has legitimate steps for preventing the construction of
the dam, and the initiative of federal government of Australia is supported by World Heritage
Act which also offers the authority to the government to extend such veto under the "external
affairs" power7.
Along with the World Heritage Act of 1983the National Parks and Wildlife Conservation Act
1975 was being used for shaping the ultimate verdict of the case.
5 State Of The Environment Tasmania (The Unit, 1996).
6 AUSTRALIAN LAW REFORM COMMISSION Traditional Rights And ...
<https://www.alrc.gov.au/sites/default/files/subs/149._org_department_of_the_environment.pdf>.
7 World Heritage Properties Conservation Act 1983 (Cth)
<http://www.austlii.edu.au/au/legis/cth/num_act/whpca1983427/>.

Overall Outcome & impact:
The most important outcome of the verdict of this court case is the reduction in the stopping of
hydro-electric dam construction in the district of Tasmania and a total reduction in development
of other hydro-electric dams across Australia which may cause some kind of environmental
issue8.
The verdict of this case has firmly established that under section 51(xxix) of the Australian
Constitution the federal government of Australia is capable to enact legislation which should be
considered reasonably valid and appropriate and should be applied in case of fulfilling the
international legal obligations of the country.
The acts that have generated the path breaking verdicts:
The verdict of this court case is based over the fact that the World Heritage Properties
Conservation Act 1983 (World Heritage Act) has received the constitutional validity for
application by the juries of the board who delivered the verdict of the case9. The World Heritage
Properties Conservation Act 1983 can be defined an Act of the Parliament of Australia which
has been enacted for providing protections for those places that are being recognized as the
World Heritage places. The act received its validity (when most of the provisions of the act were
being recognized as valid by the federal government of Australia) during the proceedings of the
current case when all the provisions of the case received the validity. The section-14 of the act
gives the power of enforcement to the High Court of Australia and the Federal Court of Australia
to stop the Tasmanian government to proceed with the construction of the dam under section -9,
section 10 and section-11 of the law10.
The verdict of the court case has also taken the help from the National Parks and Wildlife
Conservation Act 1975.According to the act a particular zone will be declared as Parks and
reserves by public statement of the Governor-General, who have the authority, declare all or any
part of the park or reserve to be a wilderness zone. A public declaration may be revoked or
amended, provided in connection with the declaration of an area as a wilderness zone. Any area
8 Gareth Evans - Publications <http://www.gevans.org/pubs.html>.
9 World Heritage Properties Conservation Act 1983 - Legislation
<https://www.legislation.gov.au/Details/C2004A02722>.
10 The Tasmanian Dams Case, 30 Years On – Unfulfilled ... <http://ohrh.law.ox.ac.uk/the-tasmanian-dams-case-30-
years-on-unfulfilled-promises/>

that has been declared as a wilderness zone the federal government of Australia has the absolute
right to protect the life of the flora and fauna of this region. In such a situation the government
declared that the area where the dam is going to be constructed is a wilderness zone and the
construction of the dam can do substantial harm to the wild animals and forest assets of that area
and by virtue of this law the government has every right to protect the wildlife of that proclaimed
wilderness zone and as the constriction of the dam is going to harm the wildlife of the area where
the dam is going to be constructed therefore this legislation is giving the authorihty to the
federal government of Australia to stop the construction of the dam.
The verdict of this court case is also based on the extension and division of power between the
Australian federal government and the individual state governments under section 51 of the
constitution of Australia.
The verdict of the case is also based on the acceptance of the fact that under section 51(xxix) the
federal government of Australia is capable to enact legislations for fulfilling the requirements of
the international treaties (like the World Heritage Act) of which the country is an important
member.
The discussion regarding the external affair power is held under section 51 (xxix) of the
constitution of Australia.
According to the Section 51 (xxxi) of the constitution of Australia the federal government of
Australia has the power to acquire land in any part of the federation on the basis of proper
justification. As per the ruling of the Justice Brennan the site where the dam was scheduled for
construction is not private property and thus the government of Tasmania cannot claim the land
as their own for making any kind of construction. More over the world heritage act is enabling
the federal government of Australia to take up the land for protecting the declared heritage site.
Apart from this by virtue of the National Parks and Wildlife Conservation Act 1975 the
government of Australia also acquire the right of stopping any kind of construction that is
possibly going to harm the flora and fauna of that region.

The ruling of the case has firmly established the fact that under section 51(xxix) of the Australian
Constitution the federal government of Australia has the power to enact legislation that is
reasonably capable to fulfil Australia’s international legal obligations.
Influence of political scenario over case verdict:
The political situation during the case is worthy of discussion as the then political scenario
influenced the verdict of the case to a great extent .During 1983 when the environment activists
were strongly protesting against the construction of the dam in the chosen site then Australian
federal election was going on and the labour party under the leadership of the Bob Hawke
promised that if they win the election then will make an effective intervention for preventing the
construction of the dam. At that time the Liberal Party under the leadership of Malcolm Fraser
refused to use the external affairs power for intervening in the process of stopping the
construction of the dam11. This stand of the Liberal Party is considered one of the main causes of
losing the 1983 election and the winning of the labour party. When the labour party subsequently
came to the power they took rapid initiative for stopping the construction of the dam and
subsequently passed the World Heritage Properties Conservation Act 1983 (Cth).The World
Heritage Properties Conservation Act 1983 (Cth) along with the National Parks and Wildlife
Conservation Act 1975 (Cth) enabled the then federal government of Australia to prohibit
clearing, excavation and other activities within the Tasmanian Wilderness World Heritage
Area12.
The Government of Tasmanian challenged the actions taken by the federal government of
Australia and refused to stop construction of the dam on the basis of the argument that the
Commonwealth Government cannot use the power under the Commonwealth Constitution to halt
the construction of the dam. In such a situation the Commonwealth Government took the case
proceedings in the High Court for an injunction and the validity of the law was being declared on
4 April 198313.
11 Constitutional Centre - 1983 The Tasmaniaian Dam Case
<https://www.constitutionalcentre.wa.gov.au/ExhibitionsOnline/ChangingConstitutions/Pages/
1983TheTasmaniaianDamCase.aspx>.
12 Case Study: Tasmanian Dams Affair - Lawgovpol.Com <http://lawgovpol.com/case-study-tasmanian-dams-
affair/>.
13 Australian World Heritage Laws | Department Of The ... <http://environment.gov.au/heritage/laws/world>.

The case was heard in the high court in May 1983 and the High Court delivered its judgment on
1 July 1983. In a 4:3 split decision [that is 4 jury’s out of 7 jury’s supported the verdict that was
given in favour of the stopping the construction of the dam] the High Court ruled that the
Commonwealth law is valid which led to the prevention of the dam proceeding14.
Conclusion:
In conclusion it can be said that the cases in the court of law is of great importance in more than
one aspect. Court cases has the capacity to change legislation, form legislation, create awareness
and even change governments as can be seen in the case of Commonwealth v Tasmania 1983.
The verdict of the case changed government, created mass awareness and also has been key
cause of the formation of the environmental legislations in Australia. The power of the federal
government has also been established in the case. Thus the ruling of the case is of huge
importance as it shows that Commonwealth powers can be used by the federal government of
Australia for enacting the legislations for protecting the environment of the country15
14 EXTERNAL AFFAIRS AND FEDERALISM IN THE TASMANIAN DAM
CASE<http://www.austlii.edu.au/au/journals/QITLawJl/1985/12.pdf>
15 Commonwealth V Tasmania (1983) | The Legal Files
<https://thebarelylegalfiles.wordpress.com/2010/10/12/commonwealth-v-tasmania-1983/>.

References
Australia Close-Up (The Department, 1987)
AUSTRALIAN LAW REFORM COMMISSION Traditional Rights
And ..
.<https://www.alrc.gov.au/sites/default/files/subs/149._org_department_of_the_environment.pdf
>
Australian World Heritage Laws | Department Of
The ...<http://environment.gov.au/heritage/laws/world>
Australia's Constitution, Federalism And The
‘Tasmanian ..
.<https://www.sciencedirect.com/science/article/pii/0260982785900011>
Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal
Professionals (Judgments And Decisions Enhanced) (1983) Jade.io
<https://jade.io/summary/mnc/1983/HCA/21>
Case Study: Tasmanian Dams Affair - Lawgovpol.Com <http://lawgovpol.com/case-
study-tasmanian-dams-affair/>
Commonwealth V Tasmania (1983) | The Legal
Files<https://thebarelylegalfiles.wordpress.com/2010/10/12/commonwealth-v-
tasmania-1983/>
Constitutional Centre - 1983 The Tasmaniaian Dam
Case<https://www.constitutionalcentre.wa.gov.au/ExhibitionsOnline/
ChangingConstitutions/Pages/1983TheTasmaniaianDamCase.aspx>
EXTERNAL AFFAIRS AND FEDERALISM IN THE TASMANIAN DAM
CASE<http://www.austlii.edu.au/au/journals/QITLawJl/1985/12.pdf>
Gareth Evans - Publications <http://www.gevans.org/pubs.html>
Robson, Lloyd, A History Of Tasmania (Oxford University Press, 1992)
State Of The Environment Tasmania (The Unit, 1996)

The Tasmanian Dams Case, 30 Years On –
Unfulfilled ... <http://ohrh.law.ox.ac.uk/the-tasmanian-dams-case-30-years-on-
unfulfilled-promises/>
World Heritage Properties Conservation Act 1983 -
Legislation<https://www.legislation.gov.au/Details/C2004A02722>
World Heritage Properties Conservation Act 1983
(Cth)<http://www.austlii.edu.au/au/legis/cth/num_act/whpca1983427/>