Franklin dam ruled out

Press, 2 July 1983, Page 1

Franklin dam ruled out

NZPA Brisbane The Federal Government has won its constitutional battle to stop construction of the Gordon-below-Frank-lin dam in the south-west Tasmanian wilderness region. The Full High Court held by a 4-3 majority yesterday that key sections of the Commonwealth’s World Heritage Properties Conservation Act were a valid exercise of constitutional power. The majority held tjiat the Commonwealth had properly relied on its external affairs power and its power over trading corporations in passing the law that has now stopped the dam. Counsel for Tasmania rose immediately after the judgment was delivered to offer undertakings that work on the dam would cease. He was interrupted by the Chief Justice, Sir Harry

Gibbs, who said he was surprised that it would be necessary to give such undertakings. He said he would have thought that once the effect of the judgment was understood it would be observed by those whose duty it was to observe it. He emphasised that the Court had in no way concerned itself with the merits of the political debate about the dam. The rightness or otherwise of a dam in the wilderness region was a matter for the two Governments concerned, he said. The Court was concerned strictly with a legal question. The majority which found in favour of the Commonwealth consisted of Mr Justice Mason, Mr Justice Murphy, Mr Justice Brennan, and Mr Justice Deane.

Those in the minority were Sir Harry Gibbs, Mr Justice Wilson, and Mr Justice Dawson. The judgment was delivered in the Banco court of the Supreme Court of Queensland which was packed by about 400 members of the public to hear the decision read. Many spectators were totally confused by the highly technical nature of the formal orders and were grateful when Sir Harry Gibbs gave a brief explanation of the effect of the judgment. Delighted conservationists, including the director of the Tasmanian Wilderness Society, Dr Bob Brown, left the courtroom for celebrations after the long campaign to have the wilderness area preserved. The 4-3 majority decision confirms and expands an earlier decision by the Full Bench laying down a wide interpretation of the Federal Government’s power to make laws based on its constitutional responsibility for external affairs. The senior majority judge, Mr Justice Mason, in his judgment today said that there were virtually no limits to the topics that might become the subject of international co-operation, treaties, or conventions and therefore subject to the Federal Government’s legislative powers. Mr Justice Deane also took a strong line on the Federal Government’s power to legislate domestically on subjects covered by international treaties. Mr Justice Deane emphasised in his judgment that Australia had taken on substantive obligations when it entered into the U.N.E.S.C.O. World Heritage Convention. Otherwise, he said, one would have to take the view that more than 70 nations had engaged in the solemn and cynical farce of using words such as “obligation” and “duty” where neither was intended or undertaken. He said international conventions were drawn up in precise terms which did not mean any absence of obligation. "It would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law,” said his Honour.