Gibbs CJ, Mason J, Murphy J, Wilson J, Brennan J, Deane J, Dawson J
The Australian Constitution – Constitutional law – External Affairs
Would you like to know more about Australia’s famous and influential cases in Australian history? Or ever wondered about the meaning of the external affairs power in section 51(xxix) of the Australian Constitution? Everything about this power can be found under the Tasmanian Dam’s Case – continue reading.
Facts: In 1974, Australia ratified the UNESCO Convention Concerning the Protection of the World Culture and Natural Heritage (“UNESCO Convention”). To ratify means, to take on the obligations imposed from a particular treaty and to legislate the obligations into domestic laws.
In 1975, the National Parks and Wildlife Conservation Act 1975 (Cth) was enacted to implement the obligations of the UNESCO Convention. Subsequently, in 1978, the Tasmanian government proposed to construct a Hydro-Electric Commission in the Franklin Dam on the Gordon River. If construction were to occur, sadly a large portion of the Franklin River in South-West Tasmania would flood. However, when it came to the year 1982, UNESCO approved Australia’s nomination of the Franklin River in South-West Tasmania as a World Heritage Area.
During the year of 1983, the Australian Federal Election came along. The Australian Labour Party under Bob Hawke was the opposition at the time, campaigning the Federal Election largely on the promise to save the Franklin River. Yes, Bob Hawke won!
Based on the campaigns and the treaty obligations, the Hawke government enacted the World Heritage Properties Conservation Act 1983 (Cth), in conjunction with the National Parks and Wildlife Conservation Act 1975 (Cth), to prevent construction, clearing, excavation or other activities that could potentially destroy the pristine Tasmanian Wilderness World Heritage Area.
The Tasmanian government objected and challenged the Federal government’s actions, ultimately proceeding to the High Court of Australia (“High Court”).
Issue: Did the Commonwealth government have the power under the Australian Constitution to prevent construction on the dam?
Holding: The High Court conducted a characterisation test, interpreting the validity of the World Heritage Properties Conservation Act 1983 (Cth). It became a question for the High Court whether the following legislation implements an international treaty and if so, if the legislation was appropriate and adaptive. The High Court took a broad approach and Mason J asserted that a treaty must have a connection with the legislation. Since the legislation in question is reasonably capable to be appropriate and adaptive to fulfil Australia’s international obligations, with respect to the external affairs power under section 51(xxix), legislation can be enacted. This particular piece of legislation in question is enacted with Australia’s obligations under the UNESCO Convention. The High Court decision was held 4:3 in favour of the Commonwealth government and ultimately the Franklin River was saved.
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