The Commonwealth V Tasmania Essay: Australian Environmental Legislation.

Critically analyse all the judgments and the overall outcome in ONE of these High Court constitutional cases. You may refer to other cases and relevant primary and secondary sources.

Overview of the Commonwealth v Tasmania Case

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 hand. 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.

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 Gordon.

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.The 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 dam. 

The Proposal for the Franklin Dam

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. 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 government.

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 Australia. 

Relevancy of the Case in Environmental Legislation

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" power.

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.

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 issue.

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 case. 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 law. 

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 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.

World Heritage Properties Conservation Act 1983

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. 

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 dam. 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 Area.

National Parks and Wildlife Conservation Act 1975

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 1983.

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 proceeding.

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 country 

References

Australia Close-Up (The Department, 1987)

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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 ... <https://ohrh.law.ox.ac.uk/the-tasmanian-dams-case-30-years-on-unfulfilled-promises/>

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