tasmanian dam case

what is a treaty

• designed to be a binding agreement between countries that are governed by international law

• can be bilateral or multilateral

what is a declaration

• non-binding agreement between countries that set out the intentions of the parties

• declarations are not treaties as they are not intended to be binding. However, in the long term that can lead to a treaty

process of turning a treaty into a law

1. countries come together to discuss issues

2. consensus is reached and countries are invited to sign the treaty show their approval and intent to enact the treaty in their country

3. a bill is introduced into Australian parliament, which outlines the actions required in order to meet the obligations of a treaty

4. the bill will pass through standard law-making process in order to become a binding law for australia

section 51 (xxix)

• the commonwealth parliament may legislate in the area of external affairs

• the external affairs power has been interpreatated to allow the commonwealth to make laws with respect to matters physically external to australia and laws affecting australia’s relations with other nations

section 75

• provides the high court with power to hear and determine cases involving disputes

  • in which the commonwealth, or a person suing or being sued on behalf of the commonwealth is a party and

  • between the states, or between residents of different states, or between a state and a resident of another state

relevant legislation in the tasmanian dam case

• federal

  • world heritage properties conservation act 1983

• state

  • gordon river hyrdo-eclectric power development act 1982

• constitution

  • section 109 - inconsistency with laws

  • section 51 (xxix) - external affairs power

what is the tasmanian dam case

• occur in 1983

• australia signed a treaty called the convention for the protection of world cultural and nautrual heritage

• australia had an obligation to list areas in australia on the world heritage list for protection

• the fraklin river was listed

• in the same year the liberal led tasmanian governement intended to dam the fraklin river to generate hyrdoeclectrcity

tasmanias argument in the dam case

• challenged the constitutional validity of the commonwealth law in high court

• the tassie government argued that the commonwealth had acted outside its law-making powers as the environment is an area of state law making repsonsibilities

• tasmania wanted the high court to declare the commonwealths law that banned the dam invalid

the commonwealths argument - tasmanian dam case

• the commonwealth argued that there law was not unconstitutional as “external affairs” power in section 51 (xxix) gives them the ability to create legislation to enact any treaties they enter into

• therefore enven though the environment is a residual power, the fact the enter a treaty meant they should be able to create legilsation to protect the franklin river

decision of the case

• the high court split 4:3 in deciding that the commonwealth had power under secton 51 xxix of the Australian constitution to stop the dam, based on Australias international obligations under the world heritage convection

• this enacted s109 of the constitution which states that if a state and commonwealth law are in conflict, the commonwealth law will prevail. Therefore tasmania were forced to drop their legislation

significance of the tasmania dam case

• now firmly established that under s51 (xxix) of the Australian constitution the australian government has the power to enact legislation that is reasonably capable of being considered appropirate and fufill australiasn legal aboligations

• due to the large number of international obligations that Australia has accepted under international treaties, the external affairs power in section 51 xxix gives aus gov a wide constiutional power to make laws on many subjects even if it is a residual power.

limitations to the significance of the dam case

• commonwealth parliament is not able to make any legislation merely on the subject matter of the treaty. The decision by the high court through intepreting section 51 gives them the ability to create laws that carry the treatys provisions into effect

• the international agreement must also be bona fide (genuine). meaning the commonwealth cannot enter a treately specificly for expanding their law making powers

• it is not clear whether this interpreation of external affairs extends to international declarations or just treaties.