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...the High Court decision 1983 in the Tasmanian Dam Case.
Justice Callinan asserts that the reason why[r L some external authority or source was required for Commonwealth "intrusion" into the affairs of Tasmania to prevent the construction of the proposed Franklin dam was the need for a constitutional peg on which to hang the Commonwealth legislation. He asserts that the Tasmanian Dam Case was "not really a question merely of conservation: it was one of democracy also" and implies that the Commonwealth legislation and the Tasmanian Dam Case involved some "dismantling of national sovereignty and democracy". These are truly astonishing suggestions.
It is true that it was the existence of an international obligation that sustained the main provisions of the legislation prohibiting the dam construction. However, "intrusion" into Tasmanian (or other state) affairs was not the reason why Australia became a party in 1974 to the Convention for the Protection and Conservation of the World Natural and Cultural Heritage ("the Convention") under the duly elected Whitlam government. Until Commonwealth legislation became necessary to stop the Franklin dam, there was no need for legislation to compel state compliance with Australia's obligations.
Although the facts fully appear in the judgment of Chief Justice Gibbs in the Tasmanian Dam Case, Justice Callinan fails to take account of the well-known fact that the nomination of the Franklin dam area for the World Heritage List was requested by the Tasmanian government under Premier Doug Lowe in September 1981. After the Fraser government had acted accordingly, the newly-elected Tasmanian government (under Premier Gray) requested in June 1982 that the nomination be withdrawn, which the Fraser government refused to do. The area was placed on the World Heritage List in December 1982. The Tasmanian government proceeded with preliminary construction work.
The...
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