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The Tasmanian Dam Case 30 Years On

The Tasmanian Dam Case 30 Years On

An Enduring Legacy

Edited by Michael Coper, Heather Roberts and James Stellios

CONTENTSREVIEWS

In one of the great contests between State and federal power, the Tasmanian Dam Case pitted the immovable object of Tasmania’s commitment to a massive hydro-electric project against the irresistible force of the Commonwealth’s determination to protect the environment.

Who would prevail? Was it more important to create jobs and provide cheap power, or to preserve the natural beauty of the Tasmanian wilderness? On whom did the Australian Constitution confer the power to decide this question?

By the narrowest of majorities, the High Court decided in 1983 that the Commonwealth had the final say, and upheld legislation that prohibited the construction of a dam on the Gordon River below the Franklin.

Because of the passions aroused by the case, the Court took the unprecedented step of issuing a statement explaining that its job was not to decide whether the proposed dam was a good idea or not, but to determine whether this was a matter of State or federal power. Yet this issue was just as hotly contested. Could any subject be brought within federal power merely by the presence of an international treaty on that subject? Would affirming this proposition destroy the intended balance between State and federal power? Would denying the proposition disable Australia from full participation in international affairs?

Three decades after the High Court’s decision, these and other questions of law and policy remain of vital importance. This book brings together a fascinating collection of commentaries on the impact of the decision, and how the hopes and fears following the decision have played out.

This stimulating and timely book contains reflections from then Commonwealth Attorney-General Gareth Evans, then High Court Justice Sir Anthony Mason and leading Indigenous lawyer Professor Mick Dodson. The book also examines some novel questions, such as whether the outcome of the case was inevitable, how similar issues have played out in Canada, and whether better conservation outcomes are more likely to come from the Commonwealth or the States. These and other chapters offer fresh perspectives on one of the most important cases in High Court history.


CONTENTS

Preface and Acknowledgments
About the Contributors
Table of Cases
Table of Statutes

1.  Introduction
          Michael Coper, Heather Roberts and James Stellios

2.  The Background Politics of the Tasmanian Dam Case
          The Hon Gareth Evans AC QC

3.  Prelude to the Tasmanian Dam Case – Constitutional Crises, Reserve Powers and the Exercise of Soft Power
          Anne Twomey

4.  The Tasmanian Dam Case
          The Hon Sir Anthony Mason AC KBE GBM

5.  Precarious Federalism: The Tasmanian Dam Case, the Corporations Power and the ‘Inevitable’ Drive Towards Centralism
          Alison Hammond

6.  The Tasmanian Dam Case – An International Lawyer’s Perspective
          Bill Campbell QC

7.  The Tasmanian Dam Case and Australia the Good International Citizen
          Donald R Rothwell

8.  Treaty Implementation in Canada – A Comparative Perspective on the Tasmanian Dam Case
          Rosalind Dixon, Nesha Balasubramanian and Melissa Vogt

9.  Human Rights and the Tasmanian Dam Case
          George Williams

10. Indigenous People as Linked to Place, the Race Power in the Tasmanian Dam Case
          Mick Dodson and Siobhan McDonnell

Tasmanian Dam Case and the ‘Green Commonwealth’ Hypothesis
          Andrew Macintosh

Index


REVIEWS

Michael Coper once remarked to me after I had discussed the Franklin River environmental conflict as Australia’s environmental law turning point that the Tasmanian Dam case was a mere moment in the anthology of contemporary constitutional law. In this collection reflecting on the case after 30 years, it is only former Chief Justice of the High Court of Australia Sir Anthony Mason who holds firm to the view that the case simply clarified then emergent constitutional legal issues.
         In this collection, Sir Anthony’s chapter stands stark and defensive, surrounded by the work of constitutional, human rights, comparative, international and environmental law scholars. They all saw, and still see, the case as much more than the matters upon which Sir Anthony and his judicial peers dwelled in the early 1980s. The case was, and remains, a case that triggered further legal developments domestically and internationally and clarified deeply entrenched views about politics and federalism in Australia. These perspectives are captured powerfully and succinctly in this collection.

Brad Jessup, InPrint, Law Institute Journal Victoria, August 2017

The Tasmanian Dam Case, for those enthused by constitutional law, is about as exciting as it gets. The showdown began in 1983, between the Commonwealth and Tasmania, over the construction of a dam on the Gordon River below the Franklin as part of a large-scale hydro-electric scheme backed by Robin Gray’s liberal government. The Commonwealth, led by Prime Minister Bob Hawke, determinedly acted to halt construction with the quick passage of legislation. In a triumphant victory for the Commonwealth, the High Court found 4:3 that the relevant laws were supported by the external affairs power, the corporations power, and the races power.
         In this book, Professor Michael Coper, Dr Heather Roberts and Professor James Stellios, bring together an insightful and stimulating collection of papers from esteemed scholars and commentators. The book includes essays by the then Chief Justice of the High Court Sir Anthony Mason, the then Attorney-General Gareth Evans, indigenous law scholar Professor Mick Dodson, international law scholar Professor Donald Rothwell and constitutional law scholar Professor Anne Twomey, among others.
         The strength of the book lies in the holistic examination of both the decision, and the ramifications of that decision, 30 years after the fact. Rarely are works available that cover so thoroughly the many different issues at play in a constitutional law decision. The book is accessible and engaging, and a must read for anyone with an interest in constitutional law.

Katelyn Ewart, Ethos, ACT Law Society, June 2017

   

Published 17 March 2017
Publisher The Federation Press
Hardback/208pp
ISBN 9781760020828
Australian RRP $125.00
International Price $113.64
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Law - Constitutional
Law - Human Rights
Law - Indigenous
Law - Legal History
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