Commonwealth v Tasmania

High Court of Australia · 1983

Commonwealth v Tasmania [1983] HCA 21

Tasmania's Parliament authorised a dam on a wild river in the State's south-west. The Commonwealth, having joined a UNESCO convention, legislated to stop it. The question was what the words "external affairs" reach.

What happened?

The Gordon River Hydro-Electric Power Development Act 1982 (Tas) authorised the Hydro-Electric Commission of Tasmania to build a dam on the Gordon River below its junction with the Franklin River, and construction work began on 14 July 1982. The dam site was on land excised from the Franklin Lower Gordon Wild Rivers National Park, one of three national parks in the west and south-west of Tasmania that the Commonwealth had nominated to the World Heritage Committee on 13 November 1981 and that the Committee entered in the World Heritage List in December 1982. Australia had ratified the Convention for the Protection of the World Cultural and Natural Heritage, depositing its instrument of ratification on 22 August 1974.

The Commonwealth wanted the dam stopped. It made the World Heritage (Western Tasmania Wilderness) Regulations under s 69 of the National Parks and Wildlife Conservation Act 1975 (Cth), and Parliament passed the World Heritage Properties Conservation Act 1983 (Cth). Either the Regulations or the Act, if valid, made it unlawful to build the dam except with a Commonwealth Minister's consent. Questions of validity were reserved for the Full Court under s 18 of the Judiciary Act 1903 (Cth). The Court stated that the questions were strictly legal and that it was not concerned with whether the dam should proceed.

What did the Court decide?

The Court gave judgment on 1 July 1983. It answered each question by a majority, and the Justices did not divide in the same way on every question. The Court held: (1) the Regulations made under s 69 were wholly invalid; (2) s 9(1)(h) of the 1983 Act was valid, so that, except with the Commonwealth Minister's written consent, it was unlawful to carry out works in the course of constructing a dam capable of inundating particular specified property adjacent to the Franklin River (including Kutikina Cave and Deena Reena Cave), or works preparatory or associated to such a dam; (3) s 10(4) was valid, so that, except with the Minister's written consent, it was unlawful for a trading corporation, for the purposes of its trading activities, to do the acts specified in s 10(2)(d) to (m), and the Hydro-Electric Commission was held to be a trading corporation; (4) the remainder of s 9(1) and s 9(2) were invalid, and so were ss 8 and 11; and (5) the Gordon River Hydro-Electric Power Development Act 1982 (Tas) was "Valid, but ineffective unless the Commonwealth Minister consents."

Proposition

What is the principle?

By a majority of four Justices to three, the Court held that the external affairs power in s 51(xxix) of the Constitution supports Commonwealth provisions that give effect to the World Heritage Convention, although the subject (land use in a State) is not itself external to Australia. Mason, Murphy, Brennan and Deane JJ formed the majority and Gibbs CJ, Wilson and Dawson JJ dissented.

The majority did not share one test. Mason J held that entry into a convention establishes the international character of its subject matter, that Art 5 imposes obligations, and that the law must conform to the treaty and carry its provisions into effect. Murphy J held that implementing a treaty is sufficient for the power but not necessary to it, that the Convention imposes a real obligation, and that a law whose only basis is a treaty is confined to what may reasonably be regarded as appropriate for implementing it. Brennan J held that Arts 4 and 5 impose an obligation, that a treaty obligation stamps its subject as an external affair unless the treaty was entered into merely to give colour to an attempt to confer legislative power, and that the law must be conducive to performing the obligation. Deane J held that the Convention imposes real and identifiable obligations and that a law under the power must be capable of being reasonably considered appropriate and adapted to its treaty purpose, with reasonable proportionality between purpose and means.

Brennan and Deane JJ applied those limits to hold s 9(1)(a) to (g) invalid, while Mason and Murphy JJ upheld those paragraphs.

The three dissentients: Gibbs CJ held that Arts 4, 5 and 6 do not impose an obligation to take any specific action. Wilson J held that Arts 4 and 5 do not impose a binding obligation. Dawson J, assuming that the provisions were obligatory, held that the international concern shown by the Convention did not make the protection of Australia's heritage part of its external affairs.

Why does this case matter?

This is a case students are often given when a problem sets a Commonwealth law against a State's decision about its own land, and the usual weakness in an answer is that it reports the result and the politics of the dam and stops there. An examiner is looking for the head of power relied on, the facts that tie the particular provision to it, and a clear line between what the orders show and what individual Justices said.

Exam and application relevance

Identify the Commonwealth law, the treaty it is said to give effect to, and the article of the treaty it is said to carry out. Then ask whether the particular prohibition is tied to that article.

Say which Justices carry the point you rely on. A holding that a majority agrees on is the Court's; a point only one Justice makes is that Justice's.

The Court also answered questions on the corporations power, the power over people of any race and s 51(xxxi). The Justices' reasons on those questions are not set out here.

Check your understanding

1. The majority upheld the Commonwealth provisions, but Mason J and Brennan J reached that result by different routes. Say, for each, what makes the subject matter of the Convention an external affair. 2. Gibbs CJ and Dawson J both dissented. What did each say about the Convention's articles, and where did their reasoning part? 3. Which two of the majority Justices held that s 9(1)(a) to (g) could not stand, and what did each say about the relation between those paragraphs and the purpose of protecting the property?