Reflections on legal issues in the Tasmanian Dams Case

Synopsis

The purpose of this paper is to identify the principal issues which arose for decision in the Tasmanian Dams Case and review the way in which they were resolved.  The principal issue concerned the scope of the external affairs power (s.51(xxix).   Did the power extend to the implementation of the World Heritage Convention by prohibiting the construction of the dams in the World Heritage Area when the Convention obligations related to matterswithinAustralia?  By a majority of four to three the Court answered the question in the affirmative, applying the broad interpretation of Commonwealth legislative powers earlier mandated by theEngineers Case.  Other issues related to the corporations power (s.51(xx)) and the race power (s.51(xxvi).  By majority the Court held that the Tasmanian Hydro-Electric Commission was a ‘trading corporation’ within s.51(xx) so that the Commonwealth could legislate with respect to it.  By majority the Court also held that ss. 8 and 11 of the World Heritage Properties Conservation Act, because they protected indigenous sites and artefacts, were a valid exercise of the power to legislate with respect to ‘people of any race for whom it is deemed necessary to make special laws’.

Notes

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

² Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

³ (1936) 55 CLR 608.

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

⁵ Koowarta v Bjelke-Petersen (1982) 153 CLR 168. at 216–217.

⁶ Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469.

⁷ Victoria v Commonwealth (1971) 122 CLR 353 at 396.

⁸ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

⁹ Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 367–368.

¹⁰ World Heritage Properties Conservation Act 1983 (Cth) (‘World Heritage Act’).

¹¹ Commonwealth v Tasmania (1983) 158 CLR at 101.

¹² Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151, (entered into force 17 December 1975).

¹³ Commonwealth v Tasmania (1983) 158 CLR at 101–102.

¹⁴ Commonwealth v Tasmania (1983) 158 CLR at 312.

¹⁵ Victoria v Commonwealth (1996) 187 CLR 416.

¹⁶ Victoria v Commonwealth (1996) 187 CLR 416 at 479.