## Facts

- Tasmania, through the Tasmanian Hydro-Electric Commission (HEC), planned to build the Gordon-below-Franklin hydro-electric dam, which would flood parts of the Franklin River area.
- Australia nominated the region for protection under the World Heritage Convention, and the area was inscribed on the World Heritage List in 1982.
- The Commonwealth enacted the World Heritage Properties Conservation Act 1983 (Cth) and used related regulations and proclamations to prohibit damaging works in declared World Heritage areas without federal approval.
- Tasmania maintained that land and river development were matters for State power and argued the Commonwealth legislation was beyond federal competence.
- The Commonwealth brought original-jurisdiction proceedings in the High Court seeking declarations that the federal provisions were valid and injunctions restraining Tasmania and the HEC from proceeding.

## Issues

1. Whether the Commonwealth could rely on the external affairs power to legislate domestically to implement obligations under the World Heritage Convention.
2. Whether the corporations power supported federal regulation of the HEC as a trading corporation, including prohibitions connected to dam construction.
3. Whether provisions protecting Aboriginal sites and artefacts were supported by the race power.
4. Whether the federal scheme effected an acquisition of property other than on just terms.
5. Whether the Constitution impliedly limited Commonwealth power to prevent interference with State functions or autonomy.
6. If the Commonwealth law was valid, whether it was inconsistent with Tasmania’s dam-authorizing statute so that the State law was inoperative to the extent of inconsistency.

## Decision

- The High Court held, by a 4–3 majority, that key provisions of the federal scheme were valid and could restrain the dam.
- A majority upheld the principal prohibitions as supported by the external affairs power because they implemented Australia’s obligations under the World Heritage Convention.
- A majority also accepted that the HEC was a trading corporation and that some provisions could be supported by the corporations power.
- The Court upheld some Aboriginal-heritage protections under the race power, while striking down other Aboriginal-heritage provisions.
- The Court rejected the contention that the federal law involved an acquisition of property requiring just terms, characterizing the provisions as regulatory and not conferring a proprietary benefit on another.
- The Court unanimously rejected a broad implied immunity protecting State functions from otherwise valid Commonwealth legislation.
- Applying the inconsistency rule, the valid Commonwealth prohibitions prevailed over Tasmania’s dam-authorizing legislation to the extent of conflict, and injunctive relief preventing construction was available.

## Legal Principles

- The external affairs power supports legislation reasonably capable of being considered appropriate and adapted to implementing a bona fide international treaty, even where the regulated subject matter is otherwise domestic.
- A State-owned statutory authority may qualify as a “trading corporation” where trading activities form a substantial part of its operations, permitting regulation of conduct connected to its trading purposes.
- The race power may support special laws protective of Aboriginal people, including laws protecting places and objects of cultural or religious significance, depending on the provision’s operation.
- A law that restricts or prohibits use of property is not necessarily a law with respect to acquisition of property; acquisition generally requires a proprietary benefit or interest being conferred on another.
- No general implied constitutional doctrine prevents the Commonwealth from impairing State functions; conflicts are addressed through the text and structure of Commonwealth powers and express limitations.
- Where a valid Commonwealth law and a State law cannot operate together, the Commonwealth law prevails and the State law is inoperative to the extent of inconsistency.

## Conclusion

The Court upheld federal legislation stopping the Franklin Dam primarily as treaty-implementing legislation under the external affairs power, rejected a general implied State immunity, and held the inconsistent State authorization inoperative, making the dam unlawful to construct.


Commonwealth v. Tasmania (Tasmanian Dam Case), 158 C.L.R. 1 (High Ct. Austl. 1983)