This case has provided a constitutional basis for the majority of subsequent environmental legislation and determined the power of federal government to dictate land use priorities to state government.
In 1978, a proposal was made for the construction of a hydro-electric dam on the Franklin River in Tasmania, Australia. The Franklin River was listed as part of a World Heritage site by UNESCO in 1982. Attempts were made at the state and federal level to halt its construction. In 1983, the World Heritage Properties Conservation Act 1983 (Cth) (“WHPCA”) was passed, which (in conjunction with existing legislation and the World Heritage listing) made the construction of the dam illegitimate.
The government of Tasmania rejected this, arguing that the federal government acted without the necessary constitutional power in making these regulations; that as environmental provisions were not expressly considered by the Constitution, they were residually in the domain of state government. The federal government argued that it was authorised by the external affairs power under s 51(xxix) of the Australian Constitution as they were purportedly effecting an international treaty (the Convention Concerning the Protection of the World Cultural and Natural Heritage). Less significant assertions were also made under the Corporations Power, the Nationhood Power, the power to make laws for “People of Any Race” (as aboriginal sacred caves were under threat as a result of that construction). Also relevant was a consideration of acquisition of property on just terms and the impairment of Tasmania’s legislative and executive powers over Crown land.
The High Court held unanimously that the external affairs power granted the federal government the power to legislate to give effect to treaty obligations even where the operation of the legislation is principally within Australia. However, on the specific facts, it was only held at a four to three majority that the creation of the WHPCA was a legitimate exercise of power under s51 (xxix). Crucially, s 9(1)(h), which prohibits the adverse interference in World Heritage Areas without Federal Ministerial approval, was held to be valid.
This application of the external affairs power had varying effects on the other provisions considered. The rest of s 9(1) was held to be invalid as it was not sufficiently specific with the scope of its prohibitions. Section 9(2), which prevents the doing of acts that are not otherwise unlawful under (1) but would damage or destroy these areas, was held by a majority to not be overly general. Under s 69 of the National Parks and Wildlife Conservation Act 1975 (Cth) (“NPWCA”) the Governor-General is authorised to created regulations that implement certain international environmental treaties where Australia is a party to that agreement. The High Court held that the regulations as executed under s 69 of the NPWCA were also a valid exercise of the external affairs power.
Effectively, it was held that the external affairs power was not a general power to create legislation; the legislation in question must be an ‘appropriate and adapted’ manner by which to implement the purpose of the treaty. This does not necessarily require that the implementation effectively implements the obligations of that treaty. Additionally, the High Court provided that the legislation is valid under the external affairs power if it is of “international concern” despite not relating specifically to any international obligation on Australia’s behalf.
(Summary provided by Friedrich Kuepper from the Queensland University of Technology)