The Tasmanian Dams Case This was a high

The Tasmanian Dams Case This was a high profile case that shifted the balance of powers away from the states and toward the Commonwealth Parliament. The High Court determined the outcome of the case by interpreting the Constitution.

The Tasmanian Dams Case • The Tasmanian Govt had passed an act to dam the Franklin River to create a source of hydroelectricity. • The ‘damming’ of rivers was considered to be a residual power and therefore outside the jurisdiction of the Commonwealth.

The Tasmanian Dams Case • The plan outraged many Australians (Tasmanians in particular) who claimed that the Franklin River was a national treasure and should not be exploited for economic reasons. • Tens of thousands of people actively demonstrated against the damming of the Franklin River.

The Tasmanian Dams Case • As a response to the outrage, the Commonwealth Government sought to intervene in an area of state power. • The Tasmanian Govt argued that the Constitution, did not give the Commonwealth the jurisdiction to legislate in this affair.

The Tasmanian Dams Case The Commonwealth Parliament maintained that it had a duty to intervene to prohibit work likely to damage areas of national heritage. The Franklin River had been placed on the World Heritage List by the Liberal Fraser Government. In 1983, the Labor Hawke Government passed the World Heritage Properties Conservation Act 1983 (Cmwlth) to prohibit the construction of the dam.

The Tasmanian Dams Case The Tasmanian Government took the case to the High Court--- stating that the Commonwealth Parliament had passed a law that was outside of its jurisdiction (ultra vires)

The Tasmanian Dams Case • The Commonwealth argued that it had the power to intervene because s. 51 (xxix) gave it power to legislate in areas of ‘external affairs’ • The proposed area was an external affair because it was protected by the World Heritage Listing which is an international treaty.

The High Court decision The High Court determined that because the Franklin River was protected by an international treaty, it came under the ‘external affairs’ power. This decision interpreted the words ‘external affairs’ to mean any area covered by an international treaty.

s. 109 • As a result, there was inconsistency between state legislation and Commonwealth legislation ( dam v. heritage) • s. 109 states that wherever there is an inconsistency between state and Commonwealth legislation in areas of the same subject, the Commonwealth prevails to the extent of the inconsistency.

The effect • The Commonwealth expanded its power and the balance of powers shifted. • Was the wording of the Constitution changed? • Why/why not?