The Tasmanian Dam Case is the most famous and influential environmental law case in Australian history. It was also a landmark in Australian constitutional law.
In it, the Commonwealth Government succeeded in stopping a large hydro-electric dam proposed to be constructed in South-West Tasmania. The seven judges of the High Court split 4:3 in deciding (amongst other matters) that the Commonwealth had power under section 51(xxix) of the Australian Constitution to stop the dam based on Australia’s international obligations under the World Heritage Convention.
It rose out of a proposal in 1978 by the Tasmanian Hydro-Electric Commission, owned by the Tasmanian Government, to construct the Franklin Dam or the Gordon-below-Franklin Dam on the Gordon River. The dam would have flooded a large section of the Franklin River in South-West Tasmania.
In 1981 the area in which the dam was proposed was nominated for listing under the World Heritage Convention. The World Heritage Committee declared the area a World Heritage site in 1982.
However, the listing of the area as a World Heritage site by itself would not have prevented construction of the dam. To stop the dam required incorporation of the protection of the area under international law into Australian domestic law.
In the midst of a growing national controversy in 1982 the Tasmanian Government passed laws allowing the dam to proceed and the Tasmanian Hydro-Electric Commission commenced preliminary works for the construction of the dam.
During the Australian federal election of 1983 the Labor Party under Bob Hawke promised to intervene and prevent construction of the dam. The Liberal Party led by Malcolm Fraser refused to use the external affairs power to intervene to stop the dam.
This helped Labor win the election and it subsequently passed the World Heritage Properties Conservation Act 1983 (Cth), which, in conjunction with the National Parks and Wildlife Conservation Act 1975 (Cth) enabled them to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World Heritage Area.
The Tasmanian Government challenged these actions and refused to halt construction of the dam. It argued that the Commonwealth Government did not have power under the Commonwealth Constitution to stop the dam.
The Commonwealth Government commenced proceedings in the High Court for an injunction and declaration of the validity of its laws on 4 April 1983.
The case was heard in May and June 1983 and the High Court delivered its judgment a few weeks later on 1 July 1983. In a 4:3 split decision the High Court largely upheld the validity of the Commonwealth laws, thereby preventing the dam proceeding.
The decision had enormous significance for the extent of Commonwealth powers to make laws under the Australian Constitution, including its power to make laws to protect the environment.
Following the decision, the legal debate over the extent of the “external affairs” power continued for a decade in a series of cases in the High Court in which the wide view of the external affairs power prevailed. It is now firmly established that under section 51(xxix) of the Australian Constitution the Australian Government has the power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations.
Due to the large number of international obligations that Australia has accepted under international treaties, the external affairs power in section 51(xxix) gives the Australian Government a very wide constitutional power to make laws on many subjects, including protecting the environment.
The decision continues to have immense importance in Australia.
Today, large parts of Australia’s main national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), depend for their constitutional validity on the decision in the Tasmanian Dam Case regarding the external affairs power. These include the protection of:
The following lecture examines the EPBC Act and explains how it is built on the Tasmanian Dam Case:
A short explanation of which levels of government have power to protect the environment in modern Australia following the Tasmanian Dam Case and subsequent political decisions on what role the Commonwealth should play in environmental policy is available on The Conversation website.
* Thank you to the High Court Registry for providing copies of the original documents filed in these proceedings.
Source: Wild Island Tasmania
Source: Tasmanian Electoral Commission
High Court stops Franklin River dam, The Age, 1 July 1983.
Saving the Franklin (24 min documentary by the ABC), 1994.
Saving the Franklin (4 min an excerpt from the documentary Wildness), 2002.
Peter Christoff, ‘Fraser paved the way for a national environment policy‘, The Conversation, 25 March 2015.
Short promotional film on kayaking the Franklin River showing the beauty of the river, Tasmanian Expeditions, 2015.
Our wide brown land: ‘The Franklin would be dammed today’: Australia’s shrinking environmental protections, The Guardian, 30 January 2018.
Bob Brown: Hawke was our environmental prime minister, The Guardian, 17 May 2019.
The environment vs jobs? We have been in this fight before, The Guardian, 28 May 2019.
Saving the Franklin River, ABC News, 3 May 2023.
Saving the Franklin, ABC Radio, April-May 2023.
