U4 AO2 1a lesson 6: significance of Tas Dams HC case on division of powers Flashcards
(12 cards)
s51 (xxix (29))
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.’
sec 51 (xxix (29)) explained
grants the Commonwealth Parliament the capacity to legislate on matters
related to fulfilling our obligations under international treaties, which can be broad and far-reaching.
facts about Tas dams case
Tas Parli passed the Gordon River HydroElectric Power Development Act 1982 (Tas) to set up the hydroelectric power scheme and build the Franklin Dam on the Gordon River
UNESCO included the area on the List in 1982.
The Cwth passed the World Heritage Properties Conservation Act 1983 (Cth) which included ss 6 and 9 to explicitly prohibit construction on Listed sites such as the Franklin River.
what was the World Heritage Properties Conservation Act 1983 (Cth) based on
leg was based on the core principles of the World Heritage Convention, an international treaty which obliges its signatory countries to protect World Heritage sites thru leg
legal arguments of tas parli
The Tas Govt challenged the World Heritage Properties Conservation Act 1983 (Cth),
claiming the Act was in breach of the Consti as the construction of dams is not specific Cwth power.
Tas Govt claimed the Cwth had acted ultra vires to create the legislation.
what was the HC required to determine
HC was required to determine whether ss 6 and 9 of the World Heritage Act 1983 (Cth), among other laws, were valid or created beyond the powers of the Cwth (i.e. passed ultra vires).
legal arguments of cwth parli
Cwth govt claimed it had the power to legislate in relation to the construction of the dam bcs prohibiting the dam’s construction had the effect of upholding Australia’s int obligations outlined in the World Heritage Convention.
Therefore, they argued laws seeking to uphold treaty obligations could validly be created according to the external affairs power, per s 51 (xxix) of the Constitution.
decision made by HC
In a 4:3 majority, the High Court ruled that the external affairs power allowed the Commonwealth to legislate in areas of residual power if the Commonwealth was upholding its international obligations.
The HC determined that key sections of the cwth leg, those that prohibited the construction of the dam, were valid.
TF unlawful for the dam to be constructed, as the construction of the dam breached the Commonwealth legislation, which were seeing through Australia’s international obligations.
significance of Tas dam on divison of law making power:
Affirmation of power to legislate treaties
The external affairs power can be used to implement obligations under treaties, even if the Cwth Parliament otherwise has no express constitutional power to make laws in relation to the subject matter of the treaty.
This can potentially broaden the Cwths power to areas that were previously in the domain of the states, as long as they were to give genuine effect to international obligations.
significance of Tas dam on divison of law making power:
Possibility of Commonwealth overriding state legislation
The High Court’s interpretation created the potential for any state legislation to be overruled by Commonwealth legislation in matters concerning external affairs.
By relying on the external affairs power, the Cwth could make valid laws whose operation could conflict with that of existing state laws. An appropriate court could then enliven s 109 to invalidate the state legislation to the extent of the inconsistency.
limiatation of Tas dam on divison of law making power:
International agreements must be genuine
Justices Mason, Murphy, and Brennan agreed that international agreements entered into must be genuine and not created solely for the purpose of acquiring legislative power.
TF the Commonwealth cannot manipulate an international obligation in order to override state legislation by relying on the external affairs power.
limitation of Tas dam on divison of law making power:
Cannot conflict with rights expressly embedded in the Constitution
The Constitution must be read as a whole document, and the Cwth is bound by all relevant provisions.
The external affairs power is still written in by the existence of express rights, which can restrict the Commonwealth’s law-making power.
