1.4: Franklin/Tasmanian dam case

One High Court Case that has impacted upon law-making powers of state and C’th

Facts of the Franklin Dam Case

• The Tasmanian government passed an act to allow them to dam the franklin gordon river

  • Tasmania has the power to do because Environment is an area residual law making power, meaning only the states have the power to make laws in this area.

• However, Commonwealth Parliament signed a UN treaty about protecting world heritage sites, the Franklin Gordon river is one of the listed sites that should be protected.

  • Commonwealth government passed legislation disallowing construction on any world heritage site— Franklin gordon river included.

• Commonwealth parliament have the power to sign treaties internationally through section 51 of the constitution, external affairs power.

• The Tasmanian parliament took the case to the high court

  • In this high court case the Judge interpreted s.51 ‘external affiars’ and deemed that the Tasmanian parliaments law was invalid, clarifying that the Commonwealth had the power to sign and ratify treaties.

What did the High court determine?

The high court interpreted section 51 ‘external affairs power’ of the constitution and deemed the Tasmanian government's law invalid. Clarifying that not only does the commonwealth government have the power to sign international treaties, but they can also pass legislation in relation to that treaty in order to ratify it.

significance of the high court case on law making powers— Expanding commonwealth law making power

The high court's ruling on the Tasmanian Dam case was so broad that it significantly expanded the Commonwealth’s legislative power, particularly in the area of environmental protection, while also decreasing the law making powers of the states.

What section did the High court interpret in the Franklin Dam case?

Section 51 ‘external affairs’