Understanding the Tasmanian Dam Case

I am super excited about this video because we are going to talk about one of the most significant cases ever decided by the High Court of Australia hello everyone my name is Renato Costa this is Aussie Law and today we will talk about the Tasmanian Dam case from 1983. The Tasmanian Dam case It's that kind of case that you hear about all the time. There's a lot in that case. And I mean a lot. It relates to several areas of law, from environmental to international to, of course, constitutional law. And it also refers to different heads of power in the Australian constitution. And this case has indeed been reputed to be one of the most important cases of the last 50 years decided by the High Court. So of course I'm not going to exhaust everything there is about this case, but at least I want to talk to you about two things, two aspects of the decision that I think are very important. And these aspects relate to the corporations power of section 5120 and the external offense power of section 5129 of the Australian constitution. The corporations power we have already talked about a lot in this channel. I have one video explaining what it is. And I have another video explaining the Work Choices case, a case that relates to the corporations power that you can check by clicking on the top right corner. And after this video, I'll also upload another video explaining a bit more the external offence power, something that we will mention in the analysis of this case. And you already know, if you do not want to miss it, you have to make sure that you subscribe to our channel and click the bell icon because that will activate the notifications. and you'll be aware every time I upload a new video to Ozilor. Okay, the Tasmania dam case. Let's start with the facts. The hydroelectric commission in Tasmania, a state-owned department, proposed to build a hydroelectric dam in the Gordon River in Tasmania. To do that, they would need to flood the Franklin River. It so happened that that particular area was part of a national park. And this was because of an international treaty that Australia was a signatory of that included that area as part of the World Heritage List. The international treaty that I mentioned was called the Convention for the Protection of the World Cultural and Natural Heritage. The Tasmanian government who supported the creation of the dam, of course, they challenged the validity of the World Heritage Act. One of the arguments was that the Commonwealth Act could not have been passed under section 5120 the corporation's power because the hydroelectric commission was not a trading corporation it was a government instrumentality another argument was that the commonwealth act could not have been passed under section 5129 of the australian constitution the external affairs power as i said there are some other things related to this case as well but these are the two claims that we'll be focusing on so the question before the high court was Is Section 5120 the corporation's power or Section 5129 the external affairs power, a valid constitutional head of power that authorizes the enactment of the Commonwealth's World Heritage Act? Is the World Heritage, Properties and Conservation Act from 1983 of the Commonwealth valid or not? In the end, the High Court of Australia decided that the Commonwealth Government did have the authority to stop the construction of the dam. Now let's see why. The narrow majority of 4 to 3 based their decision mainly in the external affairs power. But I would like to start the explanation of this case by referring to the first argument. Did the Commonwealth had, under section 5120, the corporation's power, the power to enact such a law? Well, to accept the validity of the law under this head of power, the Commonwealth would have to consider the Hydroelectric Commission of Tasmania as a trading corporation or as a constitutional corporation under section 5120. And that's exactly what they did. For the majority, the activities of the commission were trading activities. They considered that the production and sale of electricity was a trading activity and as such the Hydroelectric Commission was engaging in trading activities as a corporation. Let me just open up a parenthesis here. Because this case was decided before another case that we have already mentioned, the work choices case. So, although the High Court has consolidated the wider view of interpreting Section 50... 5120 that happened later on in the work choices case this case was prior to that the decision that we're analyzing now then shows how the progress was going how each one of these steps were being taken towards this wider broader interpretation of that head of power so here the interpretation was that the hydroelectric Commission in Tasmania engaged in a trading activity and was therefore a constitutional corporation and then the Commonwealth could legislate about it under section 5120, the corporation's power. But as I said before, this was not the sole ground to uphold the validity of the World Heritage Act. The other argument related to the external affairs power. The question was, could the Commonwealth legislate about the Franklin River and the construction of the dam under the external affairs power? of section 5129 of the Australian constitution. We are still to talk about the external affairs power so as I said make sure you subscribe to our channel. But one of the aspects of the external affairs power is the possibility of the Commonwealth entering into international treaties with other sovereign nations. And it was under this aspect of the power that the Commonwealth had been a signatory of the World Heritage Convention in 1972. The problem however was that But there was nothing in the Convention that prevented the construction of a dam in the cordon below Franklin River. The Convention talked about environmental law and the protection of the environment, but that specific case was not within the scope of the International Treaty. So the Commonwealth was trying to prevent a state from using its own territory to build a dam as a matter of its own public policy. Surely the Commonwealth couldn't do that. The construction of the dam had nothing to do with the international treaty that the Commonwealth signed. That's basically what the Tasmanian government argued. But the majority of the High Court rejected that argument. The majority composed of justices Mason, Murphy, Brennan and Dean upheld the validity of the Commonwealth Act, deciding that it did have the authority under section 51-29, the external office power, to enact such a law. All of the justices in the majority agreed that the law had somehow to conform to the treaty. It was a matter of degree then whether the invalidity would arise or not, and in this case it didn't. Justice Murphy took a wide view of the external affairs power, saying that the law should not have any strict adherence to the terms of the treaty. Justices Mason, Brennan and Dean said that protection of the environment in a specific area, in this case the National Park, fell within the scope of the International Convention. And if that was the case, it attracted the external affairs power. Further, Justices Brennan and Dean used a proportionality test to check whether the provisions of the Australian law were proportionate implementations of the obligations assumed in the treaty. In summary, the majority of the High Court of Australia decided that that the external affairs power was wide enough not only to admit the possibility of the Commonwealth engaging into an international treaty, which was uncontroversial, but also to enact legislation that only loosely related to the international treaty. The majority upheld that the specific content of an international treaty is not a limitation on the scope of the external affairs power. As Justice Mason put it, the existence of an international character or international concern is established by entry by Australia into the Convention or Treaty. This was enough to characterise the law under section 5129 of the Australian Constitution, the External Affairs Power. It was established then that the mere existence of the International Treaty could justify the exercise of the External Affairs Power. The minority with Chief Justice Gibbs and Justices Wilson and Dawson rejected this wide view of the external affairs power. For them, the power could only be exercised if the legislation was related to an international concern or international in nature. Chief Justice Gibbs defended the same position as he had defended before in another case, saying that the federal balance also limits the scope of the external affairs power. But, as I said, he was in the minority and the wider view prevailed. Hey, make sure to like this video, okay? And since you were with me until the end, let me just finish by saying that this was obviously a highly politicized case. The validity of the act meant that Tasmania could not construct the dam and of course that has a lot of repercussions, economic, social, legal repercussions. But the justice of the High Court knew exactly that. and they knew of the responsibility they had, so they tried to stick to the legal question as much as they could. This was expressed by the court in a statement in the beginning of the judgment. Look at this. The court is in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed. The assessment of the possible advantages and disadvantages of constructing the dam and the balancing of the one against the other are not matters for the court and the court's judgment does not reflect any view of the merits of the dispute. As Chief Justice Gibbs put it, we are concerned with a strictly legal question whether the Commonwealth regulations and the Commonwealth statutes are within constitutional power. H

It relates to several areas of law, from environmental to international to, of course, constitutional law. And it also refers to different heads of power in the Australian constitution. And this case has indeed been reputed to be one of the most important cases of the last 50 years decided by the High Court.

So of course I'm not going to exhaust everything there is about this case, but at least I want to talk to you about two things, two aspects of the decision that I think are very important. And these aspects relate to the corporations power of section 5120 and the external offense power of section 5129 of the Australian constitution. The corporations power we have already talked about a lot in this channel. I have one video explaining what it is. And I have another video explaining the Work Choices case, a case that relates to the corporations power that you can check by clicking on the top right corner.

And after this video, I'll also upload another video explaining a bit more the external offence power, something that we will mention in the analysis of this case. And you already know, if you do not want to miss it, you have to make sure that you subscribe to our channel and click the bell icon because that will activate the notifications. and you'll be aware every time I upload a new video to Ozilor.

Okay, the Tasmania dam case. Let's start with the facts. The hydroelectric commission in Tasmania, a state-owned department, proposed to build a hydroelectric dam in the Gordon River in Tasmania.

To do that, they would need to flood the Franklin River. It so happened that that particular area was part of a national park. And this was because of an international treaty that Australia was a signatory of that included that area as part of the World Heritage List. The international treaty that I mentioned was called the Convention for the Protection of the World Cultural and Natural Heritage. The Tasmanian government who supported the creation of the dam, of course, they challenged the validity of the World Heritage Act.

One of the arguments was that the Commonwealth Act could not have been passed under section 5120 the corporation's power because the hydroelectric commission was not a trading corporation it was a government instrumentality another argument was that the commonwealth act could not have been passed under section 5129 of the australian constitution the external affairs power as i said there are some other things related to this case as well but these are the two claims that we'll be focusing on so the question before the high court was Is Section 5120 the corporation's power or Section 5129 the external affairs power, a valid constitutional head of power that authorizes the enactment of the Commonwealth's World Heritage Act? Is the World Heritage, Properties and Conservation Act from 1983 of the Commonwealth valid or not? In the end, the High Court of Australia decided that the Commonwealth Government did have the authority to stop the construction of the dam.

Now let's see why. The narrow majority of 4 to 3 based their decision mainly in the external affairs power. But I would like to start the explanation of this case by referring to the first argument. Did the Commonwealth had, under section 5120, the corporation's power, the power to enact such a law?

Well, to accept the validity of the law under this head of power, the Commonwealth would have to consider the Hydroelectric Commission of Tasmania as a trading corporation or as a constitutional corporation under section 5120. And that's exactly what they did. For the majority, the activities of the commission were trading activities. They considered that the production and sale of electricity was a trading activity and as such the Hydroelectric Commission was engaging in trading activities as a corporation.

Let me just open up a parenthesis here. Because this case was decided before another case that we have already mentioned, the work choices case. So, although the High Court has consolidated the wider view of interpreting Section 50...

5120 that happened later on in the work choices case this case was prior to that the decision that we're analyzing now then shows how the progress was going how each one of these steps were being taken towards this wider broader interpretation of that head of power so here the interpretation was that the hydroelectric Commission in Tasmania engaged in a trading activity and was therefore a constitutional corporation and then the Commonwealth could legislate about it under section 5120, the corporation's power. But as I said before, this was not the sole ground to uphold the validity of the World Heritage Act. The other argument related to the external affairs power.

The question was, could the Commonwealth legislate about the Franklin River and the construction of the dam under the external affairs power? of section 5129 of the Australian constitution. We are still to talk about the external affairs power so as I said make sure you subscribe to our channel. But one of the aspects of the external affairs power is the possibility of the Commonwealth entering into international treaties with other sovereign nations. And it was under this aspect of the power that the Commonwealth had been a signatory of the World Heritage Convention in 1972. The problem however was that But there was nothing in the Convention that prevented the construction of a dam in the cordon below Franklin River.

The Convention talked about environmental law and the protection of the environment, but that specific case was not within the scope of the International Treaty. So the Commonwealth was trying to prevent a state from using its own territory to build a dam as a matter of its own public policy. Surely the Commonwealth couldn't do that. The construction of the dam had nothing to do with the international treaty that the Commonwealth signed. That's basically what the Tasmanian government argued.

But the majority of the High Court rejected that argument. The majority composed of justices Mason, Murphy, Brennan and Dean upheld the validity of the Commonwealth Act, deciding that it did have the authority under section 51-29, the external office power, to enact such a law. All of the justices in the majority agreed that the law had somehow to conform to the treaty. It was a matter of degree then whether the invalidity would arise or not, and in this case it didn't. Justice Murphy took a wide view of the external affairs power, saying that the law should not have any strict adherence to the terms of the treaty.

Justices Mason, Brennan and Dean said that protection of the environment in a specific area, in this case the National Park, fell within the scope of the International Convention. And if that was the case, it attracted the external affairs power. Further, Justices Brennan and Dean used a proportionality test to check whether the provisions of the Australian law were proportionate implementations of the obligations assumed in the treaty.

In summary, the majority of the High Court of Australia decided that that the external affairs power was wide enough not only to admit the possibility of the Commonwealth engaging into an international treaty, which was uncontroversial, but also to enact legislation that only loosely related to the international treaty. The majority upheld that the specific content of an international treaty is not a limitation on the scope of the external affairs power. As Justice Mason put it, the existence of an international character or international concern is established by entry by Australia into the Convention or Treaty. This was enough to characterise the law under section 5129 of the Australian Constitution, the External Affairs Power.

It was established then that the mere existence of the International Treaty could justify the exercise of the External Affairs Power. The minority with Chief Justice Gibbs and Justices Wilson and Dawson rejected this wide view of the external affairs power. For them, the power could only be exercised if the legislation was related to an international concern or international in nature.

Chief Justice Gibbs defended the same position as he had defended before in another case, saying that the federal balance also limits the scope of the external affairs power. But, as I said, he was in the minority and the wider view prevailed. Hey, make sure to like this video, okay?

And since you were with me until the end, let me just finish by saying that this was obviously a highly politicized case. The validity of the act meant that Tasmania could not construct the dam and of course that has a lot of repercussions, economic, social, legal repercussions. But the justice of the High Court knew exactly that. and they knew of the responsibility they had, so they tried to stick to the legal question as much as they could. This was expressed by the court in a statement in the beginning of the judgment.

Look at this. The court is in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed. The assessment of the possible advantages and disadvantages of constructing the dam and the balancing of the one against the other are not matters for the court and the court's judgment does not reflect any view of the merits of the dispute.

As Chief Justice Gibbs put it, we are concerned with a strictly legal question whether the Commonwealth regulations and the Commonwealth statutes are within constitutional power. H

Transcript for:Understanding the Tasmanian Dam Case

Transcript for:
Understanding the Tasmanian Dam Case