Remembering the Tasmanian dam case

By Martin Clark

Thirty years after the High Court sat in Brisbane to hand down its decision in Commonwealth v Tasmania on 1 July 1983, Melbourne Law School hosted a symposium to commemorate and reflect on the significance of the Tasmanian Dam case. Research Fellow Martin Clark (LLB(Hons) 2012) reflects on the commemoration of its impact on Australia's society, environment and law.

For Dr Bob Brown, the Wilderness Society's campaign to stop the Franklin Dam began with a rafting trip down the river in 1975 and ended in the High Court in 1983.

Recalling that anxious day, Dr Brown said:

"The High Court was packed … The judges read out their orders, and it took quite a long time, and we sort of had a running sheet on our laps and slowly it emerged that we were going to get a 4:3 judgment in favour of the Commonwealth… So there was a rising tide of excitement in the courtroom, and suddenly a man in yellow saffron robes got up and ran across the Court yelling 'No Dams!' and he was promptly evicted.

The former senator and recently retired leader of the Australian Greens was heavily involved in the Wilderness Society's campaign and the High Court challenge. He was one of three major figures involved in the case that I had the great privilege of speaking with on the day of the symposium. I also interviewed the Hon. Michael Black AC QC (LLB 1963, HonLLD 2010), former Chief Justice of the Federal Court of Australia, who appeared as counsel for the Wilderness Society, and the Hon. Sir Anthony Mason AC KBE GBM QC, former Chief Justice of the High Court of Australia, who sat on the High Court during the case.

Recalling the case at the symposium reminded Michael Black of how bitterly divisive the issue was:

"A participant from Tasmania made a point that really captures the whole thing: she said there were Sunday lunches in Tasmania that ended in tears. Families would get up and walk out on a Sunday lunch. There were hundreds of people arrested, some went to jail, some saw the end of the Federation … it was deeply divisive stuff, and of course there had been an election fought on it … So the High Court obviously had a very important role."

The symposium, which was entitled Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1, brought together significant figures involved in the case, as well as practitioners, judges, academics and activists, to present and discuss papers that grappled with a broad range of questions about the case's significance, its legacy and the process of memorialising case law and political events in Australian history.

It was the second of two symposia convened by Dr Ann Genovese, and followed on from commemoration of the 30-year anniversary of Koowarta v Bjelke-Petersen in 2012.

"After 30 years, it is timely to reflect on the ongoing significance, in political and legal terms, of these two ground-breaking cases," says Dr Genovese.

"But we also wanted to review the complex ways in which the cases are remembered or understood as turning points. This includes putting the judgments into historical conversation with each other, to invite reconsideration of how Australian law imagines itself, and its relation and responsibility to race and place in the 1980s."

Three Melbourne Law School research centres supported the event: the Institute for International Law and the Humanities, the Centre for Comparative Constitutional Studies and the Centre for Resources, Energy and Environmental Law.

Beyond the black letter law of these two cases lie myriad questions about the history of Australian law: its many voices, its lived experiences and the assumptions about people and societies on which judicial decisions are based.

In the Tasmanian Dam case the High Court considered difficult questions about several important provisions of the Australian Constitution. Central among these was the proper interpretation of the external affairs power of the Commonwealth Parliament; s 51(xxix). What 'external affairs' precisely meant for Parliament's power to legislate in relation to international agreements to which Australia was a party remained unclear and controversial in the early decades of the Court's operation. In holding 4:3 that the external affairs power did support the federal law used to declare the Franklin–Gordon River part of the Tasmanian World Heritage Area, the High Court clarified some — but by no means all — of the enduring uncertainties about the power's scope.

The immediate effect of the decision was to stop construction of the Franklin Dam and the destruction of the river system. To the critics of the Court's decision at the time, the only thing likely to be destroyed was the federal system and the rights of the States. Today those fears seem exaggerated, but their presence at the time reminds us of the divisive bitterness surrounding the debate over the Franklin Dam.

Michael Black appeared for ten minutes at the end of eight days of submissions to the Full Court from many of Australia's top barristers at the time, including a rollcall of Melbourne Law School alumni: the late Ron Castan QC (LLB(Hons) 1962), the Hon. Justice Susan Kenny (LLB(Hons) 1977), James Merralls AM QC (LLB(Hons) 1958), the Hon. David Habersberger QC (LLB(Hons) 1971); Professor Gerard Nash QC (LLB(Hons) 1956); and Dr Bryan Keon-Cohen AM QC (LLB 1973, LLM 1975) who acted as Black's junior counsel.

During the eighth and last day we were called upon and presented the main argument without the application for intervention having been ruled upon. At the end of that submission — which was deliberately very short and to the point — Sir Harry Gibbs said, essentially, 'is it alright for your purposes if we treat you as having said what you have said, as an amicus [curiae]?' And I gave the barrister's equivalent of 'too right!' …

Black describes the lasting significance of the case as an important step along the projection of an existing path, more so than a turning point.

"I mean there were certainly things put across the path. If you read Mr Ellicott's submission, there was a chasm about to open up for the Federation. But not a turning point. For those looking for a narrower view of the Federation — or they would say a more classical view I suppose — it was a turning point not taken."

Sir Anthony Mason was also at Melbourne Law School on the anniversary of this landmark case in Australian constitutional and environmental law. Speaking to me on the day, he explained the legal issues raised by the case, the arguments made in the majority and minority judgments, and his own view of its significance, which accorded with Black's sentiments, as finally clarifying several important areas of Australian constitutional law:

"There are various arguments that were deployed by the majority to respond to the broad submission that somehow or other the outcome that had occurred would be destructive of federalism. Some of those arguments related to traditional interpretation of Commonwealth legislative powers — broad and liberal interpretations going back to the early days of the High Court … I was inclined to take the view that in Koowarta and in Tasmanian Dams the way in which the arguments were put were either disguised or warmed-up versions of the old reserved powers doctrine."

An ordinary legal academic symposium brings together researchers to discuss contemporary problems facing theory and practice in a specific area of the law. Rare is the occurrence of not one but two symposia that commemorate landmark cases that have shaped both the law itself, and scholarship in the law and humanities. Rarer still is the special opportunity to hear from those personally involved in the case at the time, as well as contemporary academics, to reflect — vocally and critically — on the case's significance then and now, and the ways of commemorating and memorialising law. Undoubtedly, each speaker and participant would agree that the Turning Point symposia achieved just that.

Banner image: Morning Mist, Rock Island Bend, Franklin River, Tasmania, 1980 by Peter Dombrovskis, 1945-1996
Credit: Liz Dombrovskis

This article originally appeared in MLS News, Issue 10, December 2013.