Tasmanian Dams and Australia's Relationship with International Law

Abstract

Tasmanian Dams remains a touchstone for the debate over Australia's relationship with international law because it entrenched an interplay between anxiety and promise at the heart of that relationship. This interplay arises from a tension between anxiety about the influence of international law in Australia, on the one hand, and the promises international law offers on the other. In this article, I show how the anxiety-promise dialectic has shaped Australia's relationship with international law since Tasmanian Dams in three contexts: treaty negotiations, the attitudes of State and federal parliamentarians to international law and the attitudes of international law academics to international law. I conclude that the dialectic has ultimately been unproductive for Australia's relationship with international law.

Notes

¹ Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams).

² ‘Decision strikes at the heart of Australia’, The Australian, 8 July 1983, p 7. A version of this letter was also published as ‘Australia's Black Day’, The Age, 6 July 1983, p 13.

³ Byrnes and Charlesworth (1985) 640.

⁴ Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (Koowarta).

⁵ Sawer (1983–84), p 199.

⁶ R v Burgess: Ex Parte Henry (1936) 55 CLR 608 (Burgess). For different contemporary views on the significance of these cases see eg Byrnes (1985) and Rothwell (1987).

⁷ Charlesworth et al (2003).

⁸ Charlesworth et al (2003), pp 425 and 424.

⁹ See eg Charlesworth et al (2006), Chiam (2003) and Hovell (2003).

¹⁰ See eg Charlesworth et al (2003), pp 464–465, and Charlesworth et al (2006), pp 9–21.

¹¹ Kennedy (1994), p 335.

¹² It is not my argument that either anxiety or promise should or need to be parts of that relationship. In our earlier work we tried to demonstrate that the anxiety that has been expressed about international law in Australia is unfounded. There is also a formidable body of work in international law that challenges its promise of a progressive or cosmopolitan politics. See for example post-colonial scholarship in international law, especially Anghie (2005), Chimni (2007) and Pahuja (2011). See also critiques of particular fields, e.g. human rights: Kennedy (2005), Marks (2011); and international criminal law: Koskenniemi (2002), Simpson (2007).

¹³ Toonen v Australia (No 488/192) 30 March 1994, UN Doc CCPR/C/50/D/488/1992; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

¹⁴ Mason, Murphy and Brennan JJ.

¹⁵ Gibbs CJ, Aickin and Wilson JJ.

¹⁶ Tasmanian Dams at 216 (per Stephen J). See also Williams, Brennan and Lynch (2014) at 911 and Sawer (1983) at 202–204. For a different view on Justice Stephen's position, see Charlesworth (2014).

¹⁷ For a discussion of the impact of Koowarta on Australia's relationship with international law, see Charlesworth (2014).

¹⁸ See Tasmanian Dams at 102 (per Gibbs CJ), 194 (per Wilson J) and 307 (per Dawson J). The volume of commentary on the external affairs aspects of Tasmanian Dams is too extensive to list here. For immediately contemporary accounts, see eg Coper (1983), Crock (1983), Lane (1983), Lumb (1983/4), Sawer (1983) and Sornarajah (1983). For a full doctrinal account of the place of Tasmanian Dams in the history of the external affairs power, see eg Williams, Brennan and Lynch (2014), pp 908–926, and especially the list of references on 929. For a short legal and political overview of the case, see Zines (2013).

¹⁹ See eg Australian Federal Election Speeches, ‘Bob Hawke 1983’. http://electionspeeches.moadoph.gov.au/speeches/1983-bob-hawke

²⁰ See eg Byrnes (1985) at 314 and ‘After the dam victory comes a Bill of Rights’, The Australian, 2–3 July 1983, p 1.

²¹ ‘After the dam victory comes a Bill of Rights’, The Australian, 2–3 July 1983, p 1; Galligan (1983) at 103.

²² Australian treaty practice up to 1985 is described in Byrnes (1985) at 302–316. See also, Burmester (1989) at 192.

²³ There are different kinds of federal clauses. For an overview, see Burmester (1985) and Byrnes (1985) at 302–338.

²⁴ For some examples of this process at work, see Byrnes (1985) at 306–314. See also Burmester (1978) and Opeskin and Rothwell (1995).

²⁵ Byrnes (1985) at 314–317.

²⁶ See next section ‘Tasmanian Dams, Legislators and the External Affairs Power’.

²⁷ For the text of the ‘Federal Statement’, see ‘Treaties’ (1981–83) 10 Australian Yearbook of International Law 530.

²⁸ Convention on the Elimination of All Forms of Discrimination Against Women [1983] ATS 9; International Convention On Standards Of Training, Certification And Watchkeeping For Seafarer 1978 [1984] ATS 7; International Convention On Maritime Search And Rescue 1979 [1986] ATS 29.

²⁹ International Covenant on Civil and Political Rights [1980] ATS 23. See discussion in Charlesworth (1997) at 293–294.

³⁰ The examples I give here are from coverage of the case in five major metropolitan newspapers in the ten days after the decision: The Age, Sydney Morning Herald, The Australian, The Mercury (‘Tasmania's newspaper’) and The Courier-Mail. For a discussion of the political responses at the time see eg Galligan (1983).

³¹ See eg Blunden (1983), Cadzow (1983), White (1983), Goff (1983), Sturgess (1983). See also ‘500 mil?’, The Mercury, 2 July 1983, p 1.

³² ‘Canberra wins more power’, The Sydney Morning Herald, 2 July 1983, p 1. See also ‘PM Pledge: No rush on new powers’, The Courier-Mail, 2 July 1983, p 1.

³³ ‘Gray accepts decision but disappointed’, The Age, 2 July 1983, p 5. See also ‘States will have to watch those treaties’, The Australian, 2–3 July 1983, p 1.

³⁴ White (1983).

³⁵ ‘Hawke promises “to work with Tas”’, The Australian, 2–3 July, p 8.

³⁶ ‘Tasmania looking to the nuclear alternative’, The Australian, 8 July 1983, p 3.

³⁷ ‘Federal system is in peril: Durack’, The Age, 2 July 1983, p 5; ‘Durack sees peril in new federal power’, The Australian, 8 July 1983, p 2; ‘Decision strikes at the heart of Australia’, The Australian, 8 July 1983, p 7; ‘Bill will require both Houses to pass treaties’, The Australian, 8 July 1983, p 3.

³⁸ ‘Durack calls for referendum on proposed bill of rights’, The Australian, 8 July 1983, p 3.

³⁹ ‘Bill will require both Houses to pass treaties’, The Australian, 8 July 1983, p 3.

⁴⁰ ‘Harradine plans bill on treaties’, The Mercury, 7 July 1983, p 4. For a discussion of the Durack Bill, see Durack (1994).

⁴¹ Constitutional law academics responded much more vigorously. For a sample, see the references in footnote 18.

⁴² Campbell, (1984) at 57.

⁴³ Ryan (1984), especially at 52, 53–70 and 71–135.

⁴⁴ ‘International Law in General’ (1981–83).

⁴⁵ Starke (1983).

⁴⁶ Starke (1983) at 592. See also Lane (1983).

⁴⁷ M Sornarajah is now a Professor at the National University of Singapore Law School, but was at the time a Senior Lecturer at the University of Tasmania. Sornarajah (1983) at 26.

⁴⁸ Sornarajah (1983) at 34.

⁴⁹ Sornarajah (1983) at 34.

⁵⁰ Sornarajah (1983) at 33.

⁵¹ On environmental issues, for example, some Australian states continued to mount legal challenges continued to federal management and nomination of sites under the World Heritage Convention. See eg Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261; and Queensland v Commonwealth (1989) 167 CLR 232. For a discussion of Australia's approach to international human rights, see eg Charlesworth (1995) and (2002), and Joseph (2008).

⁵² See Alston (1995) for an account of the events of 1994/95.

⁵³ Human Rights (Sexual Conduct) Act 1994 (Cth). For a discussion of the Toonen case, see eg Morgan (1993) and Gelber (1999).

⁵⁴ For a discussion of the case, see Allars (1995) and (1997) and Lacey (2001).

⁵⁵ See eg the discussion in Charlesworth et al (2003) 437–8.

⁵⁶ See the Joint Statement by the Minister for Foreign Affairs and the Attorney-General, ‘International Treaties and the High Court Decision in Teoh’ (10 May 1995); and the Joint Statement by the Minister for Foreign Affairs and the Attorney-General and Minister for Justice, ‘The Effect of Treaties in Administrative Decision-Making’, 25 February 1997. See also Administrative Decisions (Effect of International Instruments) Bill 1995 and Administrative Decisions (Effect of International Instruments) Bill 1997

⁵⁷ The federal government position on federal clauses is described in the Revised Principles and Procedures for Commonwealth-State Consultation on Treaties (1996). Some treaties with implications for State action have not been ratified with an accompanying ‘Federal Statement’, see e.g. ILO Convention (No 142) concerning Vocational Guidance and Vocational Training in the Development of Human Resources [1986] ATS 2; Convention on the Rights of the Child [1991] ATS 2; and the Convention on the Rights of Persons with Disabilities [2008] ATS 12. The ‘Federal Statement’ appears to remain a part of the federal government's treaty negotiation armory: see the Revised Principles and Procedures for Commonwealth-State Consultation on Treaties (1996).

⁵⁸ Opeskin and Rothwell (1997); Volume 17 of the Sydney Law Review; and Alston and Chiam (1995). See also Barwick (1995).

⁵⁹ Opeskin and Rothwell (1997) p 13; Alston and Chiam (1995), especially the contributions of George Winterton, David Kinley, Michael Kirby, Ivan Shearer, Hilary Charlesworth, Martin Tsamenyi and Judy Henderson.

⁶⁰ Henderson (1995) at 236 and 238.

⁶¹ Wiltshire (1995) at 76 and 79.

⁶² See also Alston (1995) and Charlesworth (1995).

⁶³ ‘Treaty reform a thorny issue’, The Canberra Times, 25 July 1995, p 11.

⁶⁴ For an overview of the reforms, see Twomey (2007), pp 89–95.

⁶⁵ For a critique of the way the reforms have worked, see Chiam (2004) and Charlesworth et al (2003).

⁶⁶ Alston (1995), p 1.

⁶⁷ For overview of Howard government's approach to international law see Charlesworth et al (2003) and (2006). See also Volume 27 of the Australian Yearbook of International Law which is devoted to an analysis of the Howard government's approach to international law, and in particular Joseph (2008) on the Howard government's record on human rights.

⁶⁸ See the Joint Media Release of the Minister for Foreign Affairs Alexander Downer and the Attorney-General Daryl Williams, 2 July 2002. For an account of events leading up to Australia's ratification of the Rome Statute, see Charlesworth et al (2006), pp 71–82.

⁶⁹ See eg ‘Rudd's address to the UN conference’, The Australian, 12 December 2007, http://www.theaustralian.com.au/archive/news/rudds-address-to-the-un-conference/story-e6frg6no-1111115095965?nk=02e1695a4eda6f00e78d0c01369856c2.

⁷⁰ For a review of the Rudd government's approach to international law, see Pert (2012).

⁷¹ ‘Tony Abbott: Australians “sick of being lectured to” by United Nations, after report finds anti-torture breach’, The Sydney Morning Herald, 10 March 2015.

⁷² A list of bilateral trade agreements in force and under negotiation is available at http://dfat.gov.au/fta/.

⁷³ ‘Julie Bishop looks to get Australia back on UN Security Council’ The Sydney Morning Herald, 26 March 2015.

⁷⁴ Crawford (1981–83) at 183–184. See also Shearer (1983).

⁷⁵ For the program, see anzsil.org.au/Resources/Conferences/2014%20Program_WEB.pdf The information on attendance numbers comes from a personal conversation with one of the conference organisers on 6 October 2014.

⁷⁶ Kennedy (1994) at 335.

⁷⁷ Alston (1995) at 25.

⁷⁸ Charlesworth et al (2003) at 425.