Reflections on legal issues in the Tasmanian Dams Case

Abstract

The purpose of this paper is to identify the principal issues which arose for decision in the Tasmanian Dams Case and review the way in which they were resolved. The principal issue concerned the scope of the external affairs power (s.51(xxix). Did the power extend to the implementation of the World Heritage Convention by prohibiting the construction of the dams in the World Heritage Area when the Convention obligations related to matterswithinAustralia? By a majority of four to three the Court answered the question in the affirmative, applying the broad interpretation of Commonwealth legislative powers earlier mandated by theEngineers Case. Other issues related to the corporations power (s.51(xx)) and the race power (s.51(xxvi). By majority the Court held that the Tasmanian Hydro-Electric Commission was a ‘trading corporation’ within s.51(xx) so that the Commonwealth could legislate with respect to it. By majority the Court also held that ss. 8 and 11 of the World Heritage Properties Conservation Act, because they protected indigenous sites and artefacts, were a valid exercise of the power to legislate with respect to ‘people of any race for whom it is deemed necessary to make special laws’