Additional lesson (tasi dams) Flashcards
Explain the external affairs power.
- Under section 51(xxix) the Commonwealth Parliament has the power to create laws about ‘external affairs’.
- This has been relied on over the past three decades to pass legislation that reflects international agreements that Australia has entered into.
In the past, the High Court has decided that the external affairs power includes authority to legislate to give effect to international treaties. It gives the Commonwealth Parliament the ability to make laws on treaty topics that are not listed as powers in the Constitution – that is, the Commonwealth can potentially legislate on a residual power if the treaty topic covers that area.
Explain International treaties.
- An international treaty is a legally binding agreement between countries or intergovernmental organisations which is governed by international law.
- A treaty can be bilateral (two countries) or multilateral (three or more countries).
- The power to enter into treaties is an executive power under section 61 of the Australian Constitution.
- The decision about what treaties are entered into is made by the Prime Minister and the cabinet.
- Ratification of a treaty makes it binding under international law.
- International treaties are not Australian law. It can only apply in Australia if the Parliament passes a statute that includes the provisions set out in the treaty.
Explain International declarations.
A declaration is a non-binding agreement between countries which sets out certain intentions of the parties to the agreement.
- Declarations can ultimately lead to a treaty being made.
Explain International declarations and treaties and the interpretation of the external affairs power.
- The High Court has considered a number of international agreements signed by Australia.
- In a series of cases the High Court has considered the term ‘external affairs’ as giving power to the Commonwealth Parliament to pass legislation to give effect to obligations or rights conferred under international law.
What do you need to know about the Tasmanian Dam case?
I – Issue
C – Section of Constitution affected
F – Facts (briefly)
D – Decision of High Court
S – Significance re: impact of international declarations and treaties on the interpretation of the external affairs power.
(in other words, what does the decision of the HC demonstrate about the effect HCA can have on DOP?)
Explain the issue of the Tasmanian Dam case.
I - The issue
- Whether the Commonwealth Parliament could use their external affairs power [s 51(xxix)] to legislate in an area of residual power
Remember:
Residual powers are those powers that remained with the states at the time of federation and are not contained within the wording of the Constitution
Explain the section of the constitution affected by the Tasmanian Dam Case.
C - Relevant section of the constitution
s.51(xxix)
Gives the Cth Parliament the power to ’ legislate with respect to external affairs’
Explain the facts of the case Tasmanian Dam Case (Tasmania’s position).
F- Facts of the case
TASMANIA’S POSITION:
- Tasmanian government wanted to dam the Franklin-Gordon river to create a source of hydro-electricity
- Tasmanian Parliament passed the Gordon River Hyrdo-Electric Power Development Act 1982 (Tas) to allow for the dam to be constructed
- Protests Australia wide regarding the dam and environment effects of the dam
Did Tasmania how power to legislate in this area?
- Yes! Environment is a residual power of the states
- Constitution did not give Cth P’ment power to legislate in this area
Explain the facts of the case Tasmanian Dam Case (How did the C’th P’ment become involved).
F- Facts of the case
HOW DID THE C’TH P’MENT BECOME INVOLVED?
- The Franklin-Gordon Rivers were listed as world heritage sites.
- UNESCO included the area on the World Heritage List in 1982. Convention re Protection of World Cultural and Natural Heritage (1972)
- Australia was a signatory to this treaty with the UN
Remember -
Cth p’ment have the power to sign treaties internationally through the use of the external affairs power
– s 51 (xxix)
Explain the facts of the case Tasmanian Dam Case (Commonwealth’s position).
F- Facts of the case
COMMONWEALTH’S POSITION:
- Cth parliament felt they had to intervene to prevent the dam being build
- In 1983, the Commonwealth Parliament passed the World Heritage Properties
Conservation Act 1983 (Cth) which prevented construction on any Australian world heritage sites
- This included construction in the area of the Franklin/Gordon River as it has been listed as a World Heritage Site
Explain the legal dispute between the two governments in the Tasmanian Dam Case.
Tasmanian government:
- Argued in the HC that the Cth p’ment had passed a law in an area outside of its constitutional powers
- Therefore the act, which was preventing the dam from being built was unconstitutional = invalid
- Eg: dam building = residual power
VS
Commonwealth government:
- Argued that the law they passed was within its’ law-making power under s.51 (xxix) – External affairs power
- They explained that the external affairs power gave them the power to intervene and make laws in relation to external affairs and the proposed dam was an external affair because it was covered by the World Heritage listing (international treaty)
So what does this all mean in the Tasmanian Dams Case?
Tasmania Act - Gordon River Hyrdo-Electric - Power Development Act 1982 (Tas)
- Allowing dam to be built
- Residual power - Environment
- Act valid
Commonwealth Act - World Heritage Properties Conservation Act 1983 (Cth)
- Prohibiting dam construction
- s 51(xxix) determined to have power in areas associated with treaties
- Act valid
Q – Which Act prevails?
A – the Cth Act (to the extent of the inconsistency)
Explain the decision of the court in the Tasmanian Dam Case.
- High Court interpreted s.51(xxix) ‘External affairs’ power to include ‘any area covered by an international treaty’
- This meant the Cth had the power under s.51(xxix) to enact legislation that was in relation to an international treaty even if it was in relation to an area that was a residual power
- Given the Franklin Dam was covered/protected by an international treaty
- Cth P’ment had the power to legislate on and in relation to the Franklin River
- Therefore the Act passed by the Cth p’ment was not outside of their constitutional power and was valid
Explain the significance of the Tasmanian Dam case (in relation to the DoP & interpretation of international agreements).
- The interpretation of s.51 xxix, increased in power of the Commonwealth at the expense of the states
- Cth p’ment now have the power to legislate in areas of residual power (outside of its constitutional power) where they do so in relation to an international treaty
- Shift in power from states to Commonwealth
- The decision in the Tasmanian Dam case was considered by the High Court five years later in the case of Richardson v Forestry Commission of Tasmania (1988) 164 CLR 261.
- This case considered the same convention as that in the Tasmanian Dam case.
- In this case, the High Court again interpreted the external affairs power as allowing the Commonwealth Parliament to pass laws which fulfilled an international obligation.
Explain the significance of the Tasmanian Dam case (in relation to the DoP & interpretation of international agreements). CONT
- As the Franklin River was covered by an international treaty the High Court determined that this came under the external affairs power, this decision interpreted the words ‘external affairs’ to include any area covered by an international treaty.
- This could also lead to the Commonwealth Parliament assuming power over other issues involving international treaties, such as human rights, which comes under the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
