Critical decision 1983: remembering Commonwealth v Tasmania

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Acknowledgements

I would like to thank Shaun McVeigh and Peter Rush for the ongoing conversations, and collaborations, that inform Critical Decisions. I would also like to thank Ed Mussawir and Tim Peters at Griffith Law Review (GLR) for their editorial camaraderie, and good humour. At MLS, I would like to sincerely thank Vesna Stefanovski, at Iilah, and Robin Gardner and her team at the Law Research Service: Louise Ellis, Fiona MacDowall, Cate Read, Tom Wood, Dan Wiseman, Andrew Butler, Skye Chapman. Without them all both the symposia, and the editions of GLR, would not have been possible. I would also acknowledge the directors of the three centres at MLS who supported the symposia: Professor Adrienne Stone (Centre for Comparative Constitutional Studies), Professor Lee Godden (Centre for Resources, Energy and Environmental Law), Professor Di Otto (Institute International Law and the Humanities). At MLS, the Dean, Professor Carolyn Evans, Emeritus Professor Cheryl Saunders, and Professor Anne Orford, Michael D Kirby Chair of International Law, also gave important institutional and personal support to the project. I thank them.

Notes

¹ Commonwealth v Tasmania (1983) 158 CLR 1 (hereafter ‘Tasmanian Dam's case’ or ‘Tasmanian Dam’s’).

² The symposium was called ‘Turning Point 1983: Remembering Commonwealth v Tasmania’. ANU College of Law also held a symposium to celebrate Commonwealth v Tasmania, on 22 August 2013.

³ Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (hereafter ‘Koowarta’).

⁴ Genovese (2014).

⁵ Compare for example: HP Lee and George Winterton (eds) (2003) Australian Constitutional Landmarks, Cambridge University Press, and Martin Crotty and David Andrew Roberts (eds) (2008) Turning Points in Australian History, University of NSW Press. Our project here is to join these kinds of accounts together, and ask additional questions about the nature of jurisprudence as integral to both forms of history writing.

⁶ Other papers were also presented at the symposium: Libby Connors and Drew Hutton offered activist and historian's perspectives on the legacy of the Tasmanian Dam’s dispute for current environmentalist projects; and Darren Parker argued for a lawful recognition of Palawa law and its care of the River, in order that Anglo-Australian jurisprudence might reconceptualise ‘heritage and culture’ as an encounter of laws.

⁷ The following account is also drawn from these sources. See: National Museum Australia, ‘100 defining moments in Australian history’, http://www.nma.gov.au/online_features/defining_moments/list; National Museum of Australia, search results for ‘Bob Brown’, http://collectionsearch.nma.gov.au/ce/bob+brown, 3 March 2015; National Library of Australia, ‘List: Franklin Dam (media) Campaign’, http://trove.nla.gov.au/list?id=60467, 3 March 2015; Harper (2008); Toyne (1994); Pybus and Flanagan (eds) (1990); Connolly (1981); Hutton and Connors (1999); Hungerford (2013); McQueen (1983); and Brown (2012/2013).

⁸ See Langton (2014).

⁹ See McQueen (1983), pp 15–17 for one account.

¹⁰ The Liberal-National Fraser Government had continued the important work of the Labor Whitlam Government, in protecting the natural heritage of Australia throughout the 1970s. In 1974, Australia became a signatory to the World Heritage Convention (adopted by UNESCO in 1972), had hosted the UNESCO Convention in 1981, and had nominated and had listed five sites (including the Great Barrier Reef,) by December 1982. See Toyne (1994), pp 35–37. For a more fulsome and nuanced history of environmental protection and the State see Hutton and Connors (1999) pp 128–164.

¹¹ See Connolly (1981) for one account of the complex politics of the dispute in Tasmania.

¹² Pybus and Flanagan (1990).

¹³ See for examples of accounts on the 1983 election, in different genres, Harper (2008), and Brown (2012/2013).

¹⁴ Regulations were issued under s 69 of the National Parks and Wildlife Conservation Act 1975 (Cth).

¹⁵ House of Representatives Hansard, No 131, 23 April 1983, pp 45–55.

¹⁶ In addition, the State of Tasmania argued that the Commonwealth's action would result in Federal acquisition of state property without ‘just terms’ (s 51 (xxxi), and that it offended s 100, the implied restriction on the Commonwealth cannot threaten the existence of the states. For a classically delineated, and now classic, summary of all legal arguments, and judgments, see Coper (1983), pp 1–26.

¹⁷ See for full discussion Charlesworth (2014).

¹⁸ See Coper (1983) for a full analysis; noting that despite the Majority finding of validity, the Acts and Regulations in part needed to be redrafted, as they were not wholly supported by the power.

¹⁹ The Examiner, 2 July 1983; The Canberra Times, 2 July 1983 headline read, in contrast, ‘Federal Victory’.

²⁰ Amalgamated Society of Engineers v Adelaide Steamship Company (1920) 28 CLR 129.

²¹ Coper (1983); and see Charlesworth (2014) for an analysis of the judgment of Stephen J in Koowarta. For the majority in Tasmanian Dam’s, put simply, all treaties were by their nature, and in the expression of their obligations, matters of ‘international concern’ and it was not the role of the Court to second guess Parliament or the Executive as to the degree of that concern in Australia.

²² See Hutton and Connors (1999); Burgman and Burgman (1998); Wright (1994a); and Wright (1999b).

²³ Tasmanian Dam’s (1983) 158 CLR 1 at 60.

²⁴ Cover (1995), pp 95–172 and 103–111.

²⁵ Cover (1995), pp 173–201.

²⁶ Cover (1995), p 177.

²⁷ A point that is central to Cover's work; see ‘Nomos and Narrative’, at p 96 for example, where Cover directly references historiographer Hayden White's essay ‘Narrative and the Representation of Reality’, in articulating how narrative is a form of and for jurisprudence.

²⁸ Mason GLR (2015).

²⁹ Mason (2015), Victoria v The Commonwealth (1971) 122 CLR 353.

³⁰ Mason (2015).

³¹ Mabo v Queensland [No 2] (1992) 175 CLR 1 (Brennan J) (hereafter ‘Mabo’).

³² Margalit (2004).

³³ La Forgia GLR (2015).

³⁴ Clark (2013).

³⁵ Mabo (1992) 175 CLR 1.

³⁶ See for example Kirby (2014); Genovese (2014).

³⁷ Charlesworth, Chaim, Hovell and Williams (2003), p 424.

³⁸ Chiam GLR (2015).

³⁹ Chiam GLR (2015).

⁴⁰ Godden GLR (2015).

⁴¹ Godden GLR (2015).

⁴² Mark McMillan conducted acknowledgment of country at both Symposia.