Tas. Dams

Question 1

What does s 51 (xixx) state?

Answer 1

• Is the power of the government around external affairs
• ’ The parliament shall, subject to this constitution, have the power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs’

Question 2

Facts of the case

Answer 2

• The Tasmanian government intended to build a dam on the Gordon River to create a source of hydroelectricity for the state’s power needs, and passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas)
• Caused Australia-wide protests because area covered by proposed dam was under World Heritage List
• New Labor government intervened to pass World Heritage Properties Act 1983 (Cth) that prohibited building on these listed sites

Question 3

Legal issues

Answer 3

• Tasmanian government (plaintiff) claimed Cth acted ultra vires because dams were not a concurrent or exclusive power
• Commonwealth (defendant) claimed it wasn’t ultra vires because they were prohibiting the dam’s construction to uphold international obligations, and therefore laws seeking to uphold these international treaties fell under s 51 (xixx)

Question 4

Decision

Answer 4

• 4:3 majority in favor that the external affairs power did grant the Cth ability to legislate in areas of residual power if upholding international obligations
• The HC determined key sections of the World Heritage Properties Act 1983 (Cth) were valid, meaning that the dam was prohibited from being built, as it was breaching Cth legislation that was upholding international obligations
• Justices Mason, Murphy and Brennan did say that the Cth had to enter into agreements with a genuine intention and not for gaining power

Question 5

Impact of sec. 109

Answer 5

• Since the Cth laws banning construction of the dam were valid, this created conflict with the Tas. state law that mandated its construction
• Therefore, the HC rendered the state legislation invalid to the extent that it was inconsistent with Cth legislation
• This provides a mechanism for the Cth to potentially override state legislation in residual areas of legislation, if s 109 is enlivened

Question 6

Significant impacts of Tas. Dams

Answer 6

• Affirmation of power to legislate treaties
  
  • External affairs power can be used to legislate in areas Cth has no power in if upholding obligations
  • Could extend the Cth’s power in areas that were previously residual, as long as they give genuine effect to treaties
• Possibility of Commonwealth overriding state legislation
  
  • HC interpretation creates potential for any state legislation to be overrode in matters concerning external affairs
  • Relying on external affairs power could allow Cth to make valid laws that are inconsistent with existing state laws, and then have s 109 enlivened that invalidates state law

Question 7

Limitations to the impact of Tas. Dams

Answer 7

• International agreements must be genuine
  
  • Justices Mason, Murphy and Brennan agreed that international agreements must be genuine and not used for garnering power
  • Therefore, international agreements cannot be manipulated to override state legislation by relying on the external affairs power
• Cannot conflict with express rights
  
  • Constitution must be read as a whole document, and therefore the external affairs power is limited by the existence of express rights
  • For instance, the Cth cannot interfere by using the external affairs power to infringe upon the right to freedom of religion.