How Australia’s treaty obligations can change Australian law.
The Franklin Dam dispute was one of Australia’s most famous political and legal controversies, originally between the Hydro-Electric Commission (HEC) and the Tasmanian Wilderness Society (TWS). It later perpetuated into a political battle between the state Tasmanian Liberal Party and the newly-elected Commonwealth Labor government. This article will delve into the political chaos, followed by the ensuing Tasmanian Dam Case (1983) that followed.
In 1978, the HEC announced a proposal to build a new hydro-electric dam, flooding 33kms of the Franklin River. They argued that building the dam would provide cheap and reliable energy and provide over 10,000 jobs to the state which was a particularly strong argument considering by 1989 the Tasmanian unemployment rate was particularly high (7.1%), with over 25% of citizens in rural areas being unemployed.
Labor initially supported the proposal but after public outcry, changed their position to support a similar dam to be built above the Gordon Rivers junction with the Franklin River. Doug Lowe, the Premier at the time, successfully got the new proposal through the House of Assembly, but the proposal was blocked by the Legislative Council, leaving him no choice but to call a state referendum.
The referendum was considered a failure, with an extremely high 45% of informal votes, with 33% of people writing ‘no dams’ on their ballot paper. This crisis caused a Labor internal motion of no confidence, with Harry Holgate being elected leader.
The Liberal opposition, led by Robin Gray, were strongly pro-dam and took advantage of the disunity among the Labor ranks. They won the 1982 state election with a 7.21% swing, with the Labor party losing 6 seats and suffering an enormous 17.46% swing against them. The leader of the anti-dam movement, Bob Brown, was also first elected to state parliament at this election, becoming the seventh MP for Denison following the resignation of Norm Sanders. The new government quickly began construction on the original dam proposal, despite calls from the Malcolm Fraser-led Liberal federal government to abandon the scheme and compensate for any losses.
On the same day that the dam was set to begin construction, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) listed the Franklin River on the World Heritage Register. Despite the blockades and street marches by over 20,000 protestors, many of whom would be arrested, the dam construction continued up until the 1983 federal election, where Bob Hawke’s Labor government was elected. Hawke immediately passed the World Heritage Properties Conservation Act 1983 (Cth), which outlawed the construction of the dam, overruling Tasmanian state legislation.
The Tasmanian state government filed a case before the High Court of Australia, challenging the validity of the act, saying it violated the division of powers between state and federal governments. The main argument the federal government used is that the act fell under the external affairs power, found in Section 51 (xxix) of the Australian Constitution and explored further in Common(wealth) Knowledge #41.
When the Constitution was established, the powers between State and Commonwealth governments were split into concurrent, exclusive and residual powers. Exclusive powers refer to areas where only the federal government can make laws. There are many examples of exclusive powers specifically outlined in the constitution including trade and commerce with other countries, defence and in this case, external affairs.
The external affairs power is relatively hazy in the Constitution, with no explanation on what is regarded as a law that relates to external affairs. Interpreting this power falls to the High Court. The Hawke government argued the Act falls under the jurisdiction of the Convention concerning the Protection of the World's Cultural and Natural Heritage, which presides over the world heritage register. The Commonwealth government argued that they had an international obligation to follow the treaty, hence allowing them to prevent construction of the dam.
A year earlier, in Koowarta v Bjelke-Petersen (1982), the external affairs power was used by the federal government to uphold parts of the Racial Discrimination Act 1975 (Cth).
Queensland Premier Joh Bjelke-Petersen attempted to block the sale of the Archer River cattle station to John Koowarta, who bought the land through the Aboriginal Land Fund. The act was due to the 1967 Aboriginal Race referendum, which removed the Aboriginal exemption to the race power, allowing the government to pass the RDA and adopt the UN treaty International Convention on the Elimination of All Forms of Racial Discrimination into Australian law.
The Tasmanian government, supported by the governments of New South Wales, Victoria and Queensland argued the federal government preventing construction of the dam violated the federal division of powers between the State and Commonwealth governments. Justice Murphy rejected this, claiming any law that impacts Australia’s international relations is valid under the external affairs power, regardless of whether there is a legal obligation to. It is worth keeping in mind that, as the former Attorney-General of Australia, then-Senator Murphy had supported using the external affairs power to adopt other UN treaties into law. This included a Human Rights Bill, as seen in Common(wealth) Knowledge #39.
Justice Mason mentioned that when the constitution was written, there were no presiding organisations such as the UN for the external affairs power to relate to. Despite this, he argued that the external affairs power has expanded greatly since the constitution was written due changes to Australia’s foreign relations. Because of this, he deemed the UN treaty to be of significance to Australia’s external affairs. Justices Brennan and Deane, like Justice Mason, concluded that the only justification for exercising the external affairs power in this situation was an international obligation to comply with the treaty, rather than accepting Justice Murphy’s argument that it was a lawful use of the external affairs power because non-compliance would affect foreign countries’ opinion of Australia.
Chief Justice Gibbs on the other hand, took the side of the states, claiming that Commonwealth governments should implement laws interfering with state affairs, stating that any aspect of life could be subject to an international agreement. Just 8 years earlier, in the Seas and Submerged Lands Case (1975), a majority of the High Court, including Justice Mason, concluded that the external affairs power could apply to anything geographically external to Australia.
Chief Justice Gibbs believed that, due to this, it would-be unreasonable for the federal government to legislate on this issue, as there had to be a limit somewhere. His argument was that though other exclusive powers defined in the constitution may be broad, they can at least be defined. Along with Justices Wilson and Dawson, he used an ‘international concern’ test to determine if the situation was serious enough to make the use of the external affairs power reasonable, and therefore lawful, and concluded that it wasn’t.
The Tasmanian government also claimed the HEC was a branch of government, meaning the federal government wouldn’t be able to make laws restricting its operation. The High Court threw this claim out as they deemed the HEC to be independent from the government, meaning their operation was able to be restricted under section 51(xx) of the Constitution, which allows the Commonwealth government to make laws with respect to the operation of trading or financial corporations.
The final claim the Tasmanian government made was that the property of the Franklin Dam was unjustly acquired and interfered in by the federal government. Section 51(xxxi) allows the federal government to acquire property from an individual or entity on “just terms”. The High Court also disregarded this claim, concluding the dam was on public land and did not belong to any private entity.
The case was eventually resolved, with the High Court arguing 4:3 in favor of allowing the Australian Government to block construction of the dam. They did find certain sections of the Act to be invalid, though these could be severed from the Act without affecting its general operation. They did not affect the ultimate outcome of the case.
The Franklin Dam dispute was one of Australia’s largest political controversies which lasted over five years. It was a major victory for conservation efforts around the world, and a stepping stone for the formation of the Australian Greens and the eventual election to federal parliament of Bob Brown in 1996.
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Sources:
1982 state election results
International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, 660 UNTS 1, entered into force 4 January 1969.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (‘Tasmanian Dam Case’).
Convention Concerning the Protection of the World's Cultural and Natural Heritage, signed 16 November 1972, 1037 UNTS 151, entered into force 17 December 1975.
Koowarta v Bjelke-Peterson (1982) 153 CLR 168; [1982] HCA 27.
New South Wales v Commonwealth (1975) 135 CLR 337; [1975] HCA 58 (‘Seas and Submerged Lands Case’).