The Tasmanian Dam Case on Australia’s Global Legal Responsibilities
The Tasmanian Gordon River… Unsplash
The Case
The Commonwealth v Tasmania [1983] (‘Tasmanian Dam Case’)[1] marks one of Australia’s landmark High Court decisions which crosses into constitutional, environmental, and international law. Australia is party to the World Heritage Convention,[2] and the Commonwealth passed legislation to protect Tasmania’s wilderness from building a dam. The Tasmanian Government argued that the Commonwealth had no power to legislate on such a matter where State powers applied.[3] In light of Australia’s international obligations, the Commonwealth was entitled to intervene, falling under s 51(xxix) of the Constitution - the ‘external affairs power’.[4] Construction of the dam was stopped, and although this decision opened doors for federal intervention in meeting international obligations, it is interesting to consider whether or not Australia meets many of our other international requirements - ones that we also receive scrutiny for. As a democratic, liberal nation, Australia paradoxically remains in limbo in enforcing international obligations and begs the question: does Australia simply ‘pick and choose’ when to implement international obligations? Is there a reason for our static position? Perhaps the doors for federal intervention are in fact only half open, requiring progression in various issues such as human rights and criminal justice.
Redefining Federal Power
The Tasmanian Dam Case confirmed that the external affairs power could be exercised in prohibiting the construction of a dam within Australia. This expanded application of the external affairs power in line with the interpretation in Engineers, which when overturned reserved State powers.[5] The State of Tasmania on the contrary argued that this expansion of the power would ‘substantially alter the federal balance’[6] created by the Constitution and impedes on State governance.[7] As the final decision was a majority of a 4:3 split decision, this may reflect the general division that permeated political landscape. However, the judges stated beforehand that they were not addressing whether or not building the dam is ‘desirable’, but rather were only concerned with ‘strictly legal questions’.[8]
The seminal case further gave rise to political tensions, with States expressing passionately regarding their potential loss of control for self-governance.[9] For example, former Western Australian Premier Sir Charles Court wrote a concern that the decision of the case meant that Australia would be subject to the control of foreign entities.[10] Regardless, the High Court decision was only based on whether or not the Commonwealth could validly legislate a right to intervene or not based upon their powers, rather than on the consideration of policies.
Environmental Protection
This case had a large impact on environmental law as it concerned the controversial topic of prioritising environmental protection over economic development. It is important to remember that the matter was first brought by citizens (supported by the federal government) over how to use land,[11] highlighting the environmental importance this case held. The proposed plan for the dam by the Tasmanian Hydro-Electric Commission located the dam in the Gordon River and Franklin River ecosystems which was declared a World Heritage site in 1982. As Australia is party to the World Heritage Convention, we were bound by conserving and protecting the site. Following this case, it is now easier for the federal government to intervene in ‘harmful state activities’.[12] Moreover, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) relies on the Tasmanian Dam case’s validity on constitutional grounds regarding the external affairs power.
Ongoing tensions?
As the Tasmanian Dam case reflected an overriding ability of the Commonwealth to enforce Australia’s international requirements, this plausibly reveals a contentious issue of contemporary relevance; that being whether we as a nation truly do continue to implement our international obligations and abide by treaties executive sign up to. This is why although the Tasmanian Dam case was a landmark decision in the right direction in meeting international standards, we must remain reflective of current issues that continue to subtly yet substantially exist.
These include Australia’s treatment of refugees in offshore detention centres which have been scrutinised by Amnesty International. The violation of human rights in these centres contravene the UN Convention against Torture, to which Australia is a party.[13] Furthermore, Australia’s lack of constitutional recognition, such as the failed Voice Referendum, is inconsistent with our international obligations. Another contentious issue is the age of criminal responsibility, where the United Convention on the Rights of the Child (CROC), recommends a minimum age of 12.
These issues are linked to the fundamental principle stemming from the Tasmanian Dam case, whereby Australia must align with global standards for various matters. These include (but are not limited to) refugee rights, Indigenous and First Nations peoples' rights, juvenile justice processes, and other potential environmental policies to further address the impending impacts of climate change. The impacts of this case simply reach further into contemporary relevance and it is of utmost significance that Australia reflects upon more complex issues in addressing additional international standards.
Edited by Louise Kwine
[1] 158 CLR 1 (‘Tasmanian Dam Case’).
[2] Convention concerning the protection of the world cultural and natural heritage, UNTS 15511 (entered into force 17 December 1975).
[3] Tasmanian Dam Case (n 1) 55.
[4] Australian Constitution, s 51(xxix).
[5] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; Anthony Mason, 'Reflections on Legal Issues in the Tasmanian Dams Case' (2015) 24(1) Griffith Law Review 16, 17.
[6] Ibid 18.
[7] Tasmanian Dam Case (n 1) 1.
[8] Ibid.
[9] Madelaine Chiam, 'Tasmanian Dams and Australia's Relationship with International Law' (2015) 24(1) Griffith Law Review 89, 94.
[10] Ibid 89.
[11] Gerry Bates, ‘The Tasmanian Dam Case and Its Significance in Environmental Law’ (1984) (December) Environmental and Planning Law Journal 325.
[12] Ibid 327.
[13] Jamal Barne, ‘Suffering to Save Lives: Torture, Cruelty, and Moral Disengagement in Australia’s Offshore Detention Centres’ (2022) 35(4) Journal of Refugee Studies 1508, 1509.