No Franklin dam

Press, 5 July 1983, Page 20

No Franklin dam

A curious incident occurred after the delivery of the judgment of the High Court of Australia on the Franklin dam case. The counsel for the state of Tasmania rose and gave an undertaking that work on the dam would cease. The state’s counsel was interrupted by the Chief Justice, Sir Harry Gibbs, who said that he was surprised that it was necessary to give such undertakings; he would have thought, he said, that once the effect of the judgment was understood, it would be observed by those whose duty it was to discharge it. The counsel may have been making the point, for political reasons, to the Federal Government. Whatever his purpose, the undertaking implicitly contained the possibility that the ruling did not bring the automatic compliance of the state Government. The Chief Justice took up this point and was not going to let the challenge stand.

The sensitivity of state-federal relations was laid bare in the incident. The case had come about in the first place because the state Government of Tasmania wanted to develop a hydro-electric scheme on a scenic river. The Federal Government was determined to stop the scheme and took the matter to the High Court. Under Australia’s Constitution, the High Court’s jurisdiction covers matters of interpretation of the Constitution and matters arising out of a treaty. The question was whether the Commonwealth Government had the power to stop the building of a dam that the Tasmanian Government wanted. The High Court’s judgment was that the Commonwealth Government had signed an international conservation treaty, an area had been designated under the treaty to be important from a cultural point of view, and the Commonwealth Government had the power to preserve the area. The Commonwealth Government was therefore exercising its proper powers of conducting external relations. The High Court was not making a judgment about the scenic beauty, or about the wisdom of the development of a hydro-electric power scheme there, or about the necessity of having a certain supply of electricity.

The case has already been portrayed as intervention by the Commonwealth Government in the affairs of a state. The member of Parliament for Franklin in the Federal Parliament, Mr Bruce Goodluck, described it as a blow to democracy in Australia. The Tasmanian Premier, Mr Robin Gray, argued afterwards that the original intent of the

Constitution had been circumvented, that Australia’s federal system had been placed under threat, and that important Constitutional questions should be decided by a unanimous decision of the High Court, not by a majority decision as in the Franklin dam case. Other comments have been to the effect that the decision could lead to the destruction of the Australian federation. The Whitlam Labour Government of 1972-1975 was seen by the states to be trying to impose the will of the Commonwealth Government on the states. The Hawke Government is attempting to be more circumspect. It is unlikely to attempt any major challenge to the states if it can avoid it for some time to come. Besides being a victory for the Federal Government, the decision was hailed as a victory for the conservation movement which tried hard and effectively to have the Franklin River preserved from development. The actual point on which the Government — and, incidentally, the conservationists — won was that the area had a World Heritage listing recognised by a Commonwealth act. On the basis of this ruling, the conservationists will not be able to challenge states because what is being threatened is something of value to the whole of Australia. The ruling just handed down may not, in fact, be of much use to conservationists in other environmental or cultural fights. During the election campaign the Fraser Government offered-Tasmania $5OO million if it abandoned plans to develop the Franklin River. The Labour Party said that it would stop the Tasmanian Government. This it has now done. The question of compensation is likely to be of major importance to the state. After all, it could have had the $5OO million from the previous Government if it had taken up the offer. Tasmania will still want to provide sufficient electricity for the state’s needs, and also employment for the people who would have worked on the dam. The question of just how much compensation the state will get will have to be decided in a way that satisfies state aspirations and yet does not expose the Commonwealth Government to what would amount to blackmail by other states. The states will be busy studying the implications of the Franklin dam decision and looking for ways of limiting the power of the central Government. The Federal Government will not flaunt this decision lest it give ammunition to those within any state who want their state to cede from the Australian federation.