Tasmanian Dams Case

Question 1

What is the name of the case?

Answer 1

Commonwealth v Tasmania (1983)

Question 2

What does ultra vires mean?

Answer 2

Beyond the powers

Question 3

What is an international treaty?

Answer 3

An agreement between two or more countries or international organisations, that creates international rights and obligations.

Question 4

What is ratification?

Answer 4

The formal agreement or undertaking by a country to be bound by the terms of an international treaty, which provides the country time to ensure domestic legislation is consistent with the treaty.

Question 5

What is s51(xxix) of the Constitution?

Answer 5

‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs.’

Question 6

What did the High Court have to interpret in the Commonwealth v Tasmania (1983) case?

Answer 6

The meaning of ‘external affairs’

Question 7

What international treaty was signed in 1945?

Answer 7

the World Heritage Convention.

Question 8

What does the World Heritage Convention mean?

Answer 8

Australia has an international obligation to protect and conserve sites listed on the ‘World Heritage List’.

Question 9

What legislation was passed by the Tasmanian Government?

Answer 9

the Gordon River Hydro-Electric Power Development Act 1982.

Question 10

What type of law is dam construction?

Answer 10

Residual, since it does not belong to the Commonwealth at all.

Question 11

Who listed the Franklin area on the World Heritage List and when?

Answer 11

The Franklin area was listed on the World Heritage List by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) in November 1982.

Question 12

What act was passed to ratify the World Heritage Convention?

Answer 12

World Heritage Properties Conservation Act 1983 (Cth)

Question 13

What did sections 6 and 9 of the World Heritage Properties Conservation Act 1983 (Cth) mean?

Answer 13

Excavation, clearing, and other activities within the Tasmanian Wilderness World Heritage Area were prohibited.

Question 14

Which other act was significant in preventing the construction of the Franklin River dam.

Answer 14

s69 of National Parks and Wildlife Conservation Act 1975 (Cth)

Question 15

Why did the Tasmanian Government challenge the World Heritage Properties Conservation Act 1983 (Cth)?

Answer 15

They believed that it was a breach of the Constiution, since the construction of dams is not listed as an area that the Commonwealth can legislate on.

Question 16

What did the Commonwealth Government claim in return?

Answer 16

That prohibiting the dam’s construction would uphold the World Heritage Convention, therefore they were able to create laws seeking to uphold treaty obligations according to the external affairs power, as per s 51 (xxix) of the Constitution.

Question 17

What did the High Court have to determine?

Answer 17

Whether ss6 and 9 of the World Heritage Act 1983 (Cth) and s69 of the National Parks and Wildlife Conservation Act 1975 (Cth) were valid, or beyond the powers of the Commonwealth.

Question 18

What was the outcome?

Answer 18

The High Court ruled in favour of the Commonwealth, finding that the external affairs power allowed the Commonwealth to legislate in areas of residual power in order to uphold international obligations.

Question 19

How did this case change the interpretation of the external affairs power?

Answer 19

Broadened the interpretation of ‘external affairs’ to allow the Commonwealth to make legislation under the external affairs power, as long as this legislation genuinely gave effect to a treaty.

Question 20

How has the external affairs power allowed the Commonwealth to increase the amount of things it can make laws about?

Answer 20

Allowing them to legislate in areas of residual power.
Also allows the Commonwealth to overrule state legislation to implement a treaty’s subject matter.

Question 21

What are the limits on what the Commonwealth can do?

Answer 21

Regardless of international obligations, the Commonwealth is still subject to constitutional limitations, such as express and implied rights, which can restrict the Commonwealth’s law-making power.
Regardless of international obligations, the Commonwealth is still subject to constitutional limitations, such as express and implied rights, which can restrict the Commonwealth’s law-making power.