Commonwealth v Tasmania (The Tasmanian Dam Case)
158 CLR 146 ALR 625
COMMONWEALTH v. TASMANIA (The Tasmanian Dam Case)
Court:
Judges:
Gibbs C.J.
Mason J.
Murphy J.
Wilson J.
Brennan J.
Deane J.
Dawson J.
Subject References:
Constitutional Law (Cth)
International Law
Judgment date: 1 July 1983
BRISBANE
ORDER
Question:
1. Is National Parks and Wildlife Conservation Act 1975 valid in so far as it enables:
(a) the making of Regulations for and in relation to giving effect to the World Heritage Convention;
(b) the making of the World Heritage (Western Tasmania Wilderness) Regulations?
Answer:
1. (a) Yes (b) No.
Question:
2. Does the decision of the validity or invalidity of the World Heritage (Western Tasmania Wilderness) Regulations or any of them depend upon the judicial determination of the disputed allegations or any of them contained in the annexed Statement of Facts and Allegations?
Answer: No.
Question:
3. If no to question 2, are the said Regulations or any of them invalid? Answer: Yes, they are all invalid.
Question:
4. If yes to question 2, which of the disputed allegations are necessary to be determined in order to enable a decision as to the validity or invalidity of the said Regulations to be made?
Answer: Unnecessary to answer.
Question:
5. If no to question 3, is the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) valid?
Answer: Unnecessary to answer in these proceedings.
Question:
6. If no to question 5, must the second defendant pursuant to section 15B of the Hydro-Electric Commission Act (Tas.) direct the third defendant in writing to cease to construct the development specified in Schedule 1 to the Gordon River Hydro-Electric Power Development Act 1982 (Tas.)?
Answer: Not answered.
ACTION NO. C12 OF 1983
Question:
1. Are any of the provisions of
(a) sections 6 and 9
(b) sections 7 and 10
(c) sections 8 and 11
(d) section 17 of the World Heritage Properties Conservation Act valid?
Answer: 1. (a) (i) Subsections (1), (2)(b) and (3) of s. 6 are valid. It is unnecessary to determine the validity of the other paragraphs of s. 6(2). (ii) s. 9(2) are invalid. It is unnecessary to determine the validity of subsections (3) and (4) of Section 7 is valid. (ii) Subsections (1) and (4) of s. 10 are valid. It is unnecessary to determine the validity of subsections (2) and (3) of s. 10, independently of their application for the purposes of s. 10(4). 1. (c) 11 are invalid. 1. (d) Not answered.
Question: 2. Does the decision of the validity or invalidity of the Act, the Regulations or Proclamations made under the Act, or any of them depend upon the judicial determination of the disputed allegations or any of them contained in the Statement of Facts and Allegations? Answer:No.
Question: 3. If no to question 2, are: (a) the Regulations (b) the Proclamations or any of them invalid and if so which? Answer: The Regulations are invalid to the extent to which they are made pursuant to s. 8 are invalid. Otherwise, No.
Question: 4. If yes to question 2, which of the allegations are necessary to be determined in order to enable a decision as to the validity or invalidity of the said Act, Regulations or Proclamations to be made? Answer:Does not arise.
Question: 5. Do the agreed facts (a) compel (b) permit the conclusion that the HEC is a trading corporation within the meaning of the Heritage Act? Answer: 5. (a) Yes. (b) Yes.
Question: 6. If yes to (a) (b) or (c) of question 1 and no to question 3, is the Gordon River Hydro-Electric Power Development Act 1982 (Tas.) valid? Answer: Valid, but ineffective unless the Commonwealth Minister consents.
Question: 7. If no to question 6 must the second defendant pursuant to section 15B of the Hydro-Electric Commission Act (Tas.) direct the third defendant in writing to cease to construct the development specified in Schedule 1 to the Gordon River Hydro-Electric Power Development Act 1982 (Tas.)? Answer: Not answered.
Question: 8. If the Hydro-Electric Commission is a trading corporation and if section 10(4) is valid, is the Commission carrying out any of the acts set forth in subsections (2) or (3) for the purposes of its trading activities? Answer: Yes.
STATEMENT
It seems convenient to state shortly the effect of the answers given by the Court to the questions asked in these actions. The questions concern the validity of certain Commonwealth Acts, regulations and proclamations which have been brought into being for the immediate purpose of preventing the construction of the Gordon below Franklin Dam. They are strictly legal questions. The Court is in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed. The assessment of the possible advantages and disadvantages of constructing the dam, and the balancing of the one against the other, are not matters for the Court, and the Court's judgment does not reflect any view of the merits of the dispute.
The effect of the decision of the Court, reached in relation to each question by a majority, is as follows:
1. The World Heritage (Western Tasmania Wilderness) Regulations made under National Parks and Wildlife Conservation Act 1975 are wholly invalid.
2. World Heritage Properties Conservation Act 1983 is valid. In consequence, except with the consent in writing of the Commonwealth Minister, it is unlawful for any person to do the following acts in relation to particular specified property adjacent to the Franklin River, including Kutikina Cave and Deena Reena Cave: (a) carrying out works in the course of constructing or continuing to construct a dam that, when constructed, will be capable of causing the inundation of that property or any part of it; (b) carrying out works preparatory to the construction of such a dam; (c) carrying out works associated with the construction or continued construction of such a dam.
3. World Heritage Properties Conservation Act 1983 is valid. In consequence, except with the written consent of the Commonwealth Minister, it is unlawful for a trading corporation for the purpose of its trading activities to do any of the acts specified in s. 10(2)(d)-(m). The Hydro-Electric Commission of Tasmania is held to be a trading corporation and the acts specified in s. 10(2) would, if done by he Commission for the purpose of its trading activities.
4. Certain other operative provisions of the Act are invalid.
This statement is published for convenience only and is not intended to provide a complete or authoritative exposition of the effect of the decision, which must be gathered from the judgments published by the Court.