The Tasmanian Dam Case: an advocate's memoir

Abstract

An advocate's memoir²

² There are restraints in writing about a case in which the writer appeared as counsel. It has seemed to me however that the events recalled here are mostly sufficiently public and the lapse of time sufficiently great to loosen the restraints. I have referred to some incidents of little or no apparent importance in themselves because they speak of their times and the work of advocates in those times. On the other hand there is of course much of importance that has been omitted; as will be evident, this is not intended as a comprehensive account.

of The Tasmanian Dam Case outlines important elements of the context in which the case was argued and explains the importance of context to understanding the case and its place in the development of the law. The memoir gives an account of events that preceded the hearing and an account, as seen from the bar table, of the course of argument and particularly the application of the Tasmanian Wilderness Society for leave to intervene and the oral submissions made on its behalf on the final day of hearing, heard by the Court as the submissions of an amicus curia. The author makes some observations about practise before the High Court in Canberra in the 1980s and the importance of its establishment there in 1981 to the development of an Australian Bar and an Australian legal profession.

Notes

² There are restraints in writing about a case in which the writer appeared as counsel. It has seemed to me however that the events recalled here are mostly sufficiently public and the lapse of time sufficiently great to loosen the restraints. I have referred to some incidents of little or no apparent importance in themselves because they speak of their times and the work of advocates in those times. On the other hand there is of course much of importance that has been omitted; as will be evident, this is not intended as a comprehensive account.

³ (1983) 158 CLR 1.

⁴ (1983) 158 CLR at 60.

⁵ Some years later the publication of explanatory statements by the High Court and by some other superior courts became routine. They have an important function in explaining the work of the courts to the public especially now that there is ready access to them via court websites.

⁶ (1983) 158 CLR at 58–59.

⁷ The flights were the origin of the nickname ‘Biggles’ given to the Attorney-General (Senator Gareth Evans) by the media. The incident led to Senator Evans coining the expression ‘The streaker's defence’ for his observation that ‘It seemed like a good idea at the time’. Some years later, when as counsel for the Commonwealth in the Lemonthyme and Southern Forests litigation before the High Court, I accompanied the Solicitor-General and Chris Maxwell on a flight over the wilderness area, our aircraft was a brightly colored helicopter of the Tasmania Police.

⁸ Some 1500 were arrested and 600 jailed: Bob Brown (2012) ‘Why I Am a Green’ http://www.bobbrown.org.au/why_i_am_a_green. Pierre Slicer later wryly observed that he was (ie, later became) the ‘only judge in Australia … who's been refused bail by his own Chief Justice’: ABC News Online, ‘Marking 25 Years of the Franklin River Decision’ http://www.abc.net.au/news/2008-07-01/marking-25-years-of-the-franklin-river-decision/2490228, 13 April 2010.

⁹ See, eg, Kirkby (2011); In re Municipal Officers Association of Australia (1978) 203 CAR 584.

¹⁰ Tait v The Queen (1962) 108 CLR 620. (I was present in the Court in Melbourne, my future master, E D Lloyd, being junior counsel to John Starke QC for the petitioner, David Scott).

¹¹ Frost (1978); Whale Protection Act 1980 (Cth). I had a brief for the whales (that is, Project Jonah Inc.). The Project Jonah submission included an argument based on the common law and the onus of proof in criminal cases applicable, we argued, because the extinction of a species was fundamental and irreversible. We would now recognise the argument as embodying the precautionary principle.

¹² Convention (II) with respect to the Laws and Customs of War on Land opened for signature 29 July 1899, 187 CTS 429 (entered into force 4 September 1900) annex art 27 (‘In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, … provided they are not used at the same time for military purposes.’); Convention (IV) with respect to the Laws and Customs of War on Land opened for signature 18 October 1907, 205 CTS 277 (entered into force 26 January 1910) annex art 27 (substituting ‘must’ in place of ‘should’); Convention for the Protection of Cultural Property in the Event of Armed Conflict opened for signature 14 May 1954, 249 UNTS 240 (entered into force 7 August 1956).

¹³ By the late 1970s extensive new areas of federal practice had developed, particularly in the fields of commercial and administrative law.

¹⁴ The introduction of a national Family Law Act 1975 (Cth) with ‘no fault’ divorce was a big step by the Commonwealth. There were other notable examples in the fields of trade practices and consumer protection.

¹⁵ Now Dr Bryan Keon-Cohen AM QC.

¹⁶ See Kenny (1998); Mason (1998); Willheim (2010). See also Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.

¹⁷ World Heritage Properties Conservation Act 1983 (Cth) s 14(1). On ‘interested persons’ see, eg, Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493 at 528, 530–531 (Gibbs J); Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35–39 (Gibbs CJ).

¹⁸ On the then recently developed practice of the three-page outline, already at that point something of an art form, see Bennett (2001) and Brennan (2001). In the early 1980s it was common for these outlines to be revised and revised again well into the night on the eve of a hearing, The technology of the day would allow for the final version to be printed in the hotel room on a portable electric typewriter, ready for photocopying the following morning.

¹⁹ Three proceedings were before the Court: Action No C6 of 1983 (the Commonwealth seeking to restrain Tasmania from proceeding with the works on the basis that they were prohibited by the World Heritage (Western Tasmania Wilderness) Regulations made under National Parks and Wildlife Conservation Act 1975 (Cth) s 69); Action No C8 of 1983 (Attorney-General of Tasmania seeking a declaration that those regulations were invalid); Action No C12 of 1983 (the Commonwealth seeking to restrain Tasmania from proceeding with the works on the basis that they were prohibited under the World Heritage Properties Conservation Act 1983 (Cth)). On sources of jurisdiction, see Australian Constitution ss 75 and 76.

²⁰ An eleventh, Mr F M Douglas QC, was appointed to the Court of Appeal for Fiji in April 2009 but served in that office for less than a week. The Court of which he was a member, having declared that the 2006 military coup in Fiji was illegal, effectively ceased to exist since shortly after its decision was given the Fijian Constitution (Constitution of the Republic of Fiji) was suspended and the judges dismissed.

²¹ But for his untimely passing, the second member of the Commonwealth team, Mr Ron Castan QC, would most likely have been appointed to high judicial office. He later led my junior in the Tasmanian Dam Case, Bryan Keon-Cohen, as counsel for Eddie Mabo in Mabo v Queensland [No 1] (1988) 166 CLR 186 and Mabo v Queensland [No 2] (1992) 175 CLR 1. (Mrs Margaret White, junior counsel for Queensland, also appeared as junior counsel for Queensland in Mabo.)

²² Our argument essentially supported the Commonwealth's submissions about the external affairs power but included a more refined articulation of s 51(29) argument, specifically about the meaning and significance of world heritage – as pointing to universal value shared by all of humanity which only endures if the protected site exists as a living and enduring resource – and that Australia's standing in the international community is connected to protecting world heritage sites within Australia. See Tasmanian Dam Case (1983) 153 CLR 1 at 50. The argument formally supported the other grounds argued by the Commonwealth.

²³ This commercial interest was mentioned by Mason J in Tasmanian Wilderness Society v Fraser (1982) 153 CLR 270 at 273, though Mason J did not rule on the Society's standing in that challenge.

²⁴ Commonwealth v Tasmania [1983] HCATrans 24 (3 June 1983), p 330.

²⁵ Even the regulation of professional fees? At a Bar dinner in Melbourne the previous Saturday, the after-dinner speaker entertained the audience by claiming that Attorney-General Gareth Evans (who was present as a guest) had in mind a Barristers’ Fees Tribunal, the joke being his supposed choice of its members. The sober observation that there was no Commonwealth head of power for such a tribunal was answered by a further proposal – a Barristers’ Fees Treaty between Australia and Vanuatu. This jest achieved considerable currency, which we did not welcome. An unhelpful extreme; but what indeed were the limits?

²⁶ As happens when great issues are before a court, there were other moments during the hearing when the importance of the issues was felt in the courtroom – perhaps a shared sense of history in the making. When I attempted to describe this to a participant in a very important recent case, she replied that she knew exactly what I meant. During the hearing of her case, she said, she had ‘felt the Constitution shift on its axis’.

²⁷ Commonwealth v Tasmania [1983] HCATrans 22 (1 June 1983), p 213 (day two of the hearing).

²⁸ On day six of the hearing: Commonwealth v Tasmania [1983] HCATrans 26 (8 June 1983).

²⁹ Australian Constitution s 51(26).

³⁰ See Commonwealth v Tasmania [1983] HCATrans 24 (3 June 1983), p 361ff.

³¹ Commonwealth v Tasmania [1983] HCATrans 26 (8 June 1983), p 517ff.

³² See further the exchange between Mr Ellicott and Gibbs CJ: Commonwealth v Tasmania [1983] HCATrans 26 (8 June 1983), pp 519–520.

³³ (1909) 8 CLR 330 (hereafter ‘Huddart Parker’).

³⁴ Commonwealth v Tasmania [1983] HCATrans 24 (3 June 1983), p 394.

³⁵ Commonwealth v Tasmania [1983] HCATrans 24 (3 June 1983), p 394.

³⁶ Commonwealth v Tasmania [1983] HCATrans 27 (9 June 1983), p 628.

³⁷ Commonwealth v Tasmania [1983] HCATrans 28 (10 June 1983), p 786 (emphasis added).

³⁸ Landmark long cases include the Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (39 hearing days before the High Court and 36 hearing days before the Privy Council); Australian Communist Party v Commonwealth (1951) 83 CLR 1 (24 hearing days). Reflecting the modern practice, the Workchoices case – New South Wales v Commonwealth (2006) 229 CLR 1 – whilst famous for producing one of the longest judgments to date and the most number of counsel appearing (39 in total), had only four days of hearings. See Bennett (2001).

³⁹ Pierre Slicer, our instructing solicitor, had of course been in the area and had been arrested there, as had Dr Brown. Lincoln Siliakis was also familiar with the area

⁴⁰ It also made us unpopular in some circles in Victoria, including with some at the Bar. Our families received abusive phone calls whilst we were away in Canberra.

⁴¹ Commonwealth v Tasmania [1983] HCATrans 27 (9 June 2013), p 712f.

⁴² Commonwealth v Tasmania [1983] HCATrans 27 (9 June 2013), p 713.

⁴³ Commonwealth v Tasmania [1983] HCATrans 28 (10 June 1983), p 739ff.

⁴⁴ Commonwealth v Tasmania [1983] HCATrans 28 (10 June 1983), p 737.

⁴⁵ The expression ‘very controversial’ seems very odd 30 years later. The expression, like much else, is of course a reflection of the times and of circumstances forgotten.

⁴⁶ Commonwealth v Tasmania [1983] HCATrans 28 (10 June 1983), p 737.

⁴⁷ See fn 41 and also the reference to Mr Peter Underwood.

⁴⁸ Commonwealth v Tasmania [1983] HCATrans 28 (10 June 1983), p 737.

⁴⁹ Ernst Willheim has recently characterised the submission as one of introducing ‘legislative facts’ about the ‘value of the Tasmanian wilderness’ for the Court's consideration: Willheim (2010) 10 n 30.

⁵⁰ The use of the larger foolscap sheets, still in the State courts, was seen as cheating and not allowed. Single line spacing was seen as cheating too.

⁵¹ (1982) 153 CLR 168.

⁵² At least in relation to the external affairs power; we did not address the corporations power.

⁵³ Commonwealth v Tasmania [1983] HCATrans 28 (10 June 1983), p 745.