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Tasmanian Dam Case

The Tasmanian Dam Case is the most famous and influential environmental law case in Australian history. It was also a landmark in Australian constitutional law.

In it, the Commonwealth Government succeeded in stopping a large hydro-electric dam proposed to be constructed in South-West Tasmania. The seven judges of the High Court split 4:3 in deciding (amongst other matters) that the Commonwealth had power under section 51 (xxix) of the Australian Constitution to stop the dam based on Australia’s international obligations under the World Heritage Convention .

It rose out of a proposal in 1978 by the Tasmanian Hydro-Electric Commission, owned by the Tasmanian Government, to construct the Franklin Dam or the Gordon-below-Franklin Dam on the Gordon River. The dam would have flooded a large section of the Franklin River in South-West Tasmania.

In 1981 the area in which the dam was proposed was nominated for listing under the World Heritage Convention. The World Heritage Committee declared the area a World Heritage site in 1982.

However, the listing of the area as a World Heritage site by itself would not have prevented construction of the dam. To stop the dam required incorporation of the protection of the area under international law into Australian domestic law.

In the midst of a growing national controversy in 1982 the Tasmanian Government passed laws allowing the dam to proceed and the Tasmanian Hydro-Electric Commission commenced preliminary works for the construction of the dam.

During the Australian federal election of 1983 the Labor Party under Bob Hawke promised to intervene and prevent construction of the dam. The Liberal Party led by Malcolm Fraser refused to use the external affairs power to intervene to stop the dam.

This helped Labor win the election and it subsequently passed the World Heritage Properties Conservation Act 1983 (Cth), which, in conjunction with the National Parks and Wildlife Conservation Act 1975 (Cth) enabled them to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World Heritage Area.

The Tasmanian Government challenged these actions and refused to halt construction of the dam. It argued that the Commonwealth Government did not have power under the Commonwealth Constitution to stop the dam.

The Commonwealth Government commenced proceedings in the High Court for an injunction and declaration of the validity of its laws on 4 April 1983.

The case was heard in May and June 1983 and the High Court delivered its judgment a few weeks later on 1 July 1983. In a 4:3 split decision the High Court largely upheld the validity of the Commonwealth laws, thereby preventing the dam proceeding.

The decision had enormous significance for the extent of Commonwealth powers to make laws under the Australian Constitution, including its power to make laws to protect the environment.

Following the decision, the legal debate over the extent of the “external affairs” power continued for a decade in a series of cases in the High Court in which the wide view of the external affairs power prevailed. It is now firmly established that under section 51(xxix) of the Australian Constitution the Australian Government has the power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations.

Due to the large number of international obligations that Australia has accepted under international treaties , the external affairs power in section 51(xxix) gives the Australian Government a very wide constitutional power to make laws on many subjects, including protecting the environment.

The decision continues to have immense importance in Australia.

Today, large parts of Australia’s main national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), depend for their constitutional validity on the decision in the Tasmanian Dam Case regarding the external affairs power. These include the protection of:

• World Heritage properties
• Ramsar wetlands
• threatened species and threatened ecological communities and
• migratory species .

The following lecture examines the EPBC Act and explains how it is built on the Tasmanian Dam Case:

A short explanation of which levels of government have power to protect the environment in modern Australia following the Tasmanian Dam Case and subsequent political decisions on what role the Commonwealth should play in environmental policy is available on The Conversation website .

Key documents

• Writ  filed by the Commonwealth of Australia to commence proceedings in the High Court.
• Statement of Claim  filed by the Commonwealth of Australia stating facts of the case.
• Amended Statement of Claim  filed by the Commonwealth of Australia amending alleged facts.
• Location map  of proposed dam site.
• Photographs of dam site and preliminary construction works for an access road taken from an RAAF plane dispatched by the Commonwealth Government. These were tendered in evidence in the High Court.
• Judgment of the High Court in  Commonwealth v Tasmania (1983) 158 CLR 1  (1 July 1983).

* Thank you to the  High Court Registry  for providing copies of the original documents filed in these proceedings.

Source: Wild Island Tasmania

Source: Andrew Hetherington / GoogleEarth

Source: Tasmanian Electoral Commission

Media reports about this case

High Court stops Franklin River dam , The Age , 1 July 1983.

Saving the Franklin (24 min documentary by the ABC), 1994.

Saving the Franklin (4 min an excerpt from the documentary Wildness ), 2002.

Peter Christoff, ‘ Fraser paved the way for a national environment policy ‘, The Conversation , 25 March 2015.

Short promotional film on kayaking the Franklin River showing the beauty of the river , Tasmanian Expeditions, 2015.

Our wide brown land: ‘The Franklin would be dammed today’: Australia’s shrinking environmental protections , The Guardian , 30 January 2018.

Bob Brown: Hawke was our environmental prime minister , The Guardian , 17 May 2019.

The environment vs jobs? We have been in this fight before , The Guardian , 28 May 2019.

Saving the Franklin River , ABC News , 3 May 2023.

Saving the Franklin , ABC Radio , April-May 2023.

Commonwealth v Tasmania (1983): Case Summary and Legal Principles

Also known as: the tasmanian dam case.

Court : High Court of Australia, Canberra Judgment Date : 1 July 1983 Where Reported : (1983) 158 CLR 1; (1983) 46 ALR 625

Legal Issue in Commonwealth v Tasmania

The legal issue in Commonwealth v Tasmania revolved around the constitutional powers of the Australian Commonwealth Government to intervene in the affairs of a state.

Specifically, Commonwealth v Tasmania challenged whether the Commonwealth had the authority to prevent Tasmania from constructing a dam on the Franklin River.

The central constitutional question was whether the external affairs power of the Commonwealth could be used to implement international agreements , in this case, the World Heritage Convention, to override state legislation.

Material Facts in Commonwealth v Tasmania

In the early 1980s, the Tasmanian Government planned to construct a hydroelectric dam on the Franklin River.

This proposal was met with widespread public opposition due to the river’s environmental significance.

In response, the Commonwealth Government, led by Prime Minister Malcolm Fraser and later Bob Hawke, sought to stop the dam’s construction.

The Commonwealth passed the World Heritage Properties Conservation Act 1983 and the National Parks and Wildlife Conservation Act 1975 to fulfil its obligations under the World Heritage Convention, to which Australia was a signatory.

These Acts were used to prohibit activities that could damage World Heritage-listed sites, including the Franklin River area.

Tasmania challenged these actions, arguing that the Commonwealth had overstepped its constitutional powers.

Judgment in Commonwealth v Tasmania

The High Court of Australia, in a landmark decision, ruled in favor of the Commonwealth. The majority held that the external affairs power granted the Commonwealth the authority to enact legislation consistent with its international obligations under the World Heritage Convention.

This decision significantly expanded the understanding of the external affairs power, recognising that it could be used to legislate on matters of international concern, even if they were within the traditional domain of state powers. The Court’s ruling effectively stopped the construction of the dam.

The Reason for the Decision in Commonwealth v Tasmania

The High Court’s decision was primarily based on the interpretation of Section 51(xxix) of the Australian Constitution, which deals with external affairs.

The majority of the justices found that this section provided the Commonwealth with the power to enter into international agreements and implement them through domestic legislation.

The Court recognised that the World Heritage Convention aimed to protect sites of universal value, and as a signatory, Australia was obliged to uphold its commitments.

The Court also considered the nature of federalism in Australia, acknowledging that while states have significant powers, the Commonwealth has the authority to act on matters of national and international importance.

The decision reflected a broader view of the external affairs power, suggesting that it could be used to address global environmental concerns and other issues beyond the traditional scope of international relations.

This ruling was significant in that it allowed the Commonwealth to legislate in areas that were previously considered within the exclusive domain of the states, provided there was a relevant international treaty .

The decision also underscored the importance of international law and agreements in shaping Australian domestic law, particularly in areas related to environmental protection and heritage conservation.

The Commonwealth v Tasmania case is a seminal decision in Australian constitutional law, marking a critical moment in the relationship between Commonwealth and state powers.

Commonwealth v Tasmania established a precedent for the use of the external affairs power to implement international agreements in domestic law, even in areas traditionally managed by states.

It also highlighted the growing influence of international law and environmental concerns in shaping national legislation.

The High Court’s decision not only protected the Franklin River but also set a precedent for future environmental conservation efforts in Australia.

Rowan T. Moyo, Ph.D.

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Opinions on High

Remembering the tasmanian dam case.

Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).

By Martin Clark

Commonwealth v Tasmania Case Page

On 1 July 1983, the High Court sat in Brisbane to hand down its decision in Commonwealth v Tasmania [1983] HCA 21 . Popularly known as the Tasmanian Dam case, the decision is a landmark in Australian constitutional and environmental law. On 28 June 2013, 30 years after the decision was handed down, the Melbourne Law School hosted a symposium ‘ Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1 ’, to commemorate and reflect on the significance of the Tasmanian Dam case for Australian society, the environment and Australian law. The private symposium was convened by Dr Ann Genovese (Melbourne Law School). It brought together significant figures involved in the case, academic lawyers, historians and environmental activists, and the papers presented will be published in a forthcoming issue of the Griffith Law Review . For more on the Turning Points symposium, see here .

The Case In the Tasmanian Dam case the High Court considered some difficult questions about several important provisions of the Australian Constitution . Central among these was the question of the proper interpretation of the external affairs power of the Commonwealth Parliament. Section 51(xxix) of the Constitution empowers the Parliament to ‘make laws for the peace, order, and good government of the Commonwealth with respect to … external affairs’. What ‘external affairs’ precisely meant for Parliament’s power to legislate in relation to international agreements to which Australia was a party remained unclear and controversial in the early decades of the Court’s operation.

In their famous 1901 Commentaries on the Constitution of the Commonwealth of Australia , Quick and Garran anticipated that the s 51(xxix) power may ‘prove to be a great constitutional battleground’ with ‘considerable speculation’ about its scope. In 1936 the High Court handed down the first major decision on external affairs and international agreements in R v Burgess [1936] HCA 52 . In that case the court took a broad approach to the scope of the power, with several Justices commenting — with some trepidation — on the huge breadth of subjects on which Australia had entered into international agreements and the difficulties of strictly defining the precise limits of the power.

With the Tasmanian Dam case, the High Court clarified many — but by no means all — of the enduring uncertainties about the scope of the external affairs power, drawing on Burgess’s Case and the Koowarta decision handed down the year before (albeit with a slightly differently composed bench: Justice Aickin passed away and was succeeded by Justice Dawson, and Justice Stephen was appointed as Governor-General and was succeeded by Justice Deane).

The Court held by a majority of four judges to three that under this Constitutional power, the Parliament could enact domestic legislation to give effect to Australia’s treaty obligations as a party to the World Heritage Convention . Following protests against the construction of the Franklin Dam, and the area’s placement on the UNESCO World Heritage List , the Commonwealth Parliament had passed a federal law — the World Heritage Properties Conservation Act 1983 (Cth) — and had made a declaration under it, that listed the Franklin–Gordon River as part of the Tasmanian Wilderness World Heritage Area. That federal law and declaration were both held to be valid under the external affairs power.

Section 109 of the Constitution provides that a Commonwealth law on the same topic as a State law will override that State law to the extent of any inconsistency, which in this case meant that the federal act would override an earlier Tasmanian law — the Gordon River Hydro-Electric Power Development Act 1982 (Tas) — that was intended to support the construction of the Franklin Dam. The practical effect of the decision was to stop construction of the Franklin Dam, which now sat within a World Heritage Site, and, if built, would have destroyed a significant part of that area. For critics of the Court’s decision, the four Justices of the majority had instead destroyed Australia’s constitutional system entirely (see here ). That view is of course hyperbolic. But it does reflect the divisiveness of the broader debate about the dam. It also reminds us of that unease about this potentially boundless power that can be read between the lines of several of the judgments in Burgess’ Case .

The High Court’s first media release on a case Much was soon written on the case as a turning point in clarifying constitutional questions. Another important but often overlooked turning point is in the Court’s relations with the public at large. The Tasmanian Dam case was the first case in which the High Court of Australia released a media statement explaining the Court’s role in adjudicating the dispute (see here ). That press release clearly stated what the High Court was and was not empowered to do or consider, and emphasised that the decision was about the proper interpretation of the Constitution and Australia’s federal system of government, and not about whether damming the Franklin River was good policy or not. The statement was reprinted in the Commonwealth Law Reports, and read, in part, as follows:

The questions concern the validity of certain Commonwealth Acts, regulations and proclamations which have been brought into being for the immediate purpose of preventing the construction of the Gordon below Franklin Dam. They are strictly legal questions. The Court is in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed. The assessment of the possible advantages and disadvantages of constructing the dam, and the balancing of the one against the other, are not matters for the Court, and the Court’s judgment does not reflect any view of the merits of the dispute.

Bolstering the public statement, Chief Justice Gibbs wrote, in the introduction to his Honour’s judgment:

No lawyer will need to be told that in these proceedings the Court is not called upon to decide whether the Gordon below Franklin Scheme ought to proceed. It is not for the Court to weigh the economic needs of Tasmania against the possible damage that will be caused to the archaeological sites and the wilderness area if the construction of the dam proceeds. The wisdom and expediency of the two competing courses are matters of policy for the governments to consider, and not for the Court. We are concerned with a strictly legal question — whether the Commonwealth regulations and the Commonwealth statute are within constitutional power.

1983 was certainly not the first time a decision of the Court had made headlines or been an ongoing topic of public discussion. Nor was the Court until now uninterested in public understandings of its work: the previous Chief Justice, Sir Garfield Barwick, had made considerable attempts to improve public awareness of the Court’s work that coincided with its establishment in the new building in Canberra in 1980. Yet with that first release the Court foresaw that in the midst of a heated political debate that had divided the nation, its reasons for judgment could be easily misinterpreted or read as motivated by concerns about politics, policy or public opinion.

Then as now, part of engaging with the public includes explaining why it is vital for Australian constitutional democracy that courts confine themselves to legal questions and arguments, even when deciding issues that seem so bound up in politics and values to those engaging in the public debate. To many outside the law it must often seem that the possibility of approaching any divisive, politically-charged issue from a purely legalistic perspective seems impossible, and those who invoke that perspective must surely be using it to cover their real, usually conservative, reasons. Explaining why that is (nearly always) mistaken, and why the Court decided as it did, is by no means an easy thing to do, even in cases far less complex than Tasmanian Dam . But in that spirit of public engagement, today every judgment handed down by the High Court is explained in short, understandable media releases, and many other courts around Australia follow similar practices (see further here ).

Interviews On the day of the Turning Points symposium I interviewed three of the key players in the Tasmanian Dam case:

• Dr Bob Brown, former Senator in the Federal Parliament and former leader of the Australian Greens, who worked for the Wilderness Society and was heavily involved in the campaign to save the Franklin Dam prior to the case.
• The Hon Michael Black AC QC, former Chief Justice of the Federal Court of Australia, who appeared as counsel for the Tasmanian Wilderness Society in Tasmanian Dam .
• The Hon Sir Anthony Mason AC KBE GBM QC, former Chief Justice of the High Court of Australia, who sat on the High Court during the case.

In the interviews, each of these central figures offers their recollections of the case, and their reflections on its importance as a turning point for Australian law and society.

Interview Transcripts .

  Interview with Dr Bob Brown.

Interview with the Hon Michael Black AC QC.

Interview with the Hon Sir Anthony Mason AC KBE GBM QC.

Remembering the Tasmanian Dam case In an address on law and the varieties of history in 2010, Justice Crennan said :

Sir Owen Dixon recognised that … under the maxim res iudicata pro veritate accipitur (a thing adjudicated is accepted as the truth) courts have an advantage over other seekers of the truth. The philosopher of history, R G Collingwood, spoke of history in a similar vein when he described history as a search for truth … as living on in the present …

As with all controversial historical events, the truth about them quickly becomes a variety of perspectives, memories and recollections each disclosing different truths. Australian historians are yet to thoroughly cover the significance of the 1980s as a decade. But we can hope that as they begin to do so the many perspectives on the Franklin Dam controversy, the High Court’s role in Australian society, and public engagements with clarifications and changes in the meaning and direction of the Australian federation will all form prominent voices in that story. While Sir Owen may have been right in saying that few if any questions of fact are beyond the court’s powers of inquiry, he would have been wrong to think courts had an advantage over seekers of historical truth. History is rarely if ever reducible to questions of fact. In continuing the debate on the place of the Tasmanian Dam case in Australia’s history, we can be sure that its significance and its truth lives in the present.

AGLC3 Citation : Martin Clark, ‘Remembering the Tasmanian Dam Case’ on  Opinions on High (24 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/clark-tasmanian-dam/>.

Martin Clark is a Research Fellow at Melbourne Law School .

The ‘ Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1 ’ symposium was convened by Dr Ann Genovese on 28 June 2013 at Melbourne Law School. It was co-hosted by the Institute for International Law and the Humanities (IILAH), the Centre for Comparative Constitutional Studies (CCCS), and the Centre for Resources Energy and Environmental Law (CREEL). It is the second in a series of two symposia in the Turning Points series, building on last year’s symposium ‘ Turning Points: Remembering Koowarta v Bjelke-Petersen (1982) 153 CLR 16 ’.

Image Acknowledgements:

• Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983) displayed with the kind permission of Liz Dombrovskis and the National Library of Australia, nla.pc-an6631500 .
• ‘Michael Black and Bryan Keon-Cohen’ (Michael Black, personal collection).
• ‘Bob Brown Profile by Australian Greens Senators’ (About Bob Brown) [ CC-BY-SA-2.5-au ], via Wikimedia Commons
• ‘Portrait of Michael Black’ (Melbourne Law School)
• Damian Martin, ‘Portrait of Sir Anthony Mason’ (11 October 2005) displayed with the kind permission of the National Library of Australia, nla.int-nl39509-dmc2 .

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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)

• Melbourne Law School
• Alumni and Giving

Remembering the Tasmanian dam case

By Martin Clark

Thirty years after the High Court sat in Brisbane to hand down its decision in  Commonwealth v Tasmania  on 1 July 1983, Melbourne Law School hosted a symposium to commemorate and reflect on the significance of the Tasmanian Dam case. Research Fellow Martin Clark (LLB(Hons) 2012) reflects on the commemoration of its impact on Australia's society, environment and law.

For Dr Bob Brown, the Wilderness Society's campaign to stop the Franklin Dam began with a rafting trip down the river in 1975 and ended in the High Court in 1983.

Recalling that anxious day, Dr Brown said:

"The High Court was packed … The judges read out their orders, and it took quite a long time, and we sort of had a running sheet on our laps and slowly it emerged that we were going to get a 4:3 judgment in favour of the Commonwealth… So there was a rising tide of excitement in the courtroom, and suddenly a man in yellow saffron robes got up and ran across the Court yelling 'No Dams!' and he was promptly evicted.

The former senator and recently retired leader of the Australian Greens was heavily involved in the Wilderness Society's campaign and the High Court challenge. He was one of three major figures involved in the case that I had the great privilege of speaking with on the day of the symposium. I also interviewed the Hon. Michael Black AC QC (LLB 1963, HonLLD 2010), former Chief Justice of the Federal Court of Australia, who appeared as counsel for the Wilderness Society, and the Hon. Sir Anthony Mason AC KBE GBM QC, former Chief Justice of the High Court of Australia, who sat on the High Court during the case.

Recalling the case at the symposium reminded Michael Black of how bitterly divisive the issue was:

"A participant from Tasmania made a point that really captures the whole thing: she said there were Sunday lunches in Tasmania that ended in tears. Families would get up and walk out on a Sunday lunch. There were hundreds of people arrested, some went to jail, some saw the end of the Federation … it was deeply divisive stuff, and of course there had been an election fought on it … So the High Court obviously had a very important role."

The symposium, which was entitled Turning Points: Remembering  Commonwealth v Tasmania  (1983) 158 CLR 1, brought together significant figures involved in the case, as well as practitioners, judges, academics and activists, to present and discuss papers that grappled with a broad range of questions about the case's significance, its legacy and the process of memorialising case law and political events in Australian history.

It was the second of two symposia convened by Dr Ann Genovese, and followed on from commemoration of the 30-year anniversary of Koowarta v Bjelke-Petersen in 2012.

"After 30 years, it is timely to reflect on the ongoing significance, in political and legal terms, of these two ground-breaking cases," says Dr Genovese.

"But we also wanted to review the complex ways in which the cases are remembered or understood as turning points. This includes putting the judgments into historical conversation with each other, to invite reconsideration of how Australian law imagines itself, and its relation and responsibility to race and place in the 1980s."

Three Melbourne Law School research centres supported the event: the Institute for International Law and the Humanities, the Centre for Comparative Constitutional Studies and the Centre for Resources, Energy and Environmental Law.

Beyond the black letter law of these two cases lie myriad questions about the history of Australian law: its many voices, its lived experiences and the assumptions about people and societies on which judicial decisions are based.

In the Tasmanian Dam case the High Court considered difficult questions about several important provisions of the Australian Constitution. Central among these was the proper interpretation of the external affairs power of the Commonwealth Parliament; s 51(xxix). What 'external affairs' precisely meant for Parliament's power to legislate in relation to international agreements to which Australia was a party remained unclear and controversial in the early decades of the Court's operation. In holding 4:3 that the external affairs power did support the federal law used to declare the Franklin–Gordon River part of the Tasmanian World Heritage Area, the High Court clarified some — but by no means all — of the enduring uncertainties about the power's scope.

The immediate effect of the decision was to stop construction of the Franklin Dam and the destruction of the river system. To the critics of the Court's decision at the time, the only thing likely to be destroyed was the federal system and the rights of the States. Today those fears seem exaggerated, but their presence at the time reminds us of the divisive bitterness surrounding the debate over the Franklin Dam.

Michael Black appeared for ten minutes at the end of eight days of submissions to the Full Court from many of Australia's top barristers at the time, including a rollcall of Melbourne Law School alumni: the late Ron Castan QC (LLB(Hons) 1962), the Hon. Justice Susan Kenny (LLB(Hons) 1977), James Merralls AM QC (LLB(Hons) 1958), the Hon. David Habersberger QC (LLB(Hons) 1971); Professor Gerard Nash QC (LLB(Hons) 1956); and Dr Bryan Keon-Cohen AM QC (LLB 1973, LLM 1975) who acted as Black's junior counsel.

During the eighth and last day we were called upon and presented the main argument without the application for intervention having been ruled upon. At the end of that submission — which was deliberately very short and to the point — Sir Harry Gibbs said, essentially, 'is it alright for your purposes if we treat you as having said what you have said, as an amicus [curiae]?' And I gave the barrister's equivalent of 'too right!' …

Black describes the lasting significance of the case as an important step along the projection of an existing path, more so than a turning point.

"I mean there were certainly things put across the path. If you read Mr Ellicott's submission, there was a chasm about to open up for the Federation. But not a turning point. For those looking for a narrower view of the Federation — or they would say a more classical view I suppose — it was a turning point not taken."

Sir Anthony Mason was also at Melbourne Law School on the anniversary of this landmark case in Australian constitutional and environmental law. Speaking to me on the day, he explained the legal issues raised by the case, the arguments made in the majority and minority judgments, and his own view of its significance, which accorded with Black's sentiments, as finally clarifying several important areas of Australian constitutional law:

"There are various arguments that were deployed by the majority to respond to the broad submission that somehow or other the outcome that had occurred would be destructive of federalism. Some of those arguments related to traditional interpretation of Commonwealth legislative powers — broad and liberal interpretations going back to the early days of the High Court … I was inclined to take the view that in Koowarta and in Tasmanian Dams the way in which the arguments were put were either disguised or warmed-up versions of the old reserved powers doctrine."

An ordinary legal academic symposium brings together researchers to discuss contemporary problems facing theory and practice in a specific area of the law. Rare is the occurrence of not one but two symposia that commemorate landmark cases that have shaped both the law itself, and scholarship in the law and humanities. Rarer still is the special opportunity to hear from those personally involved in the case at the time, as well as contemporary academics, to reflect — vocally and critically — on the case's significance then and now, and the ways of commemorating and memorialising law. Undoubtedly, each speaker and participant would agree that the Turning Point symposia achieved just that.

Banner image: Morning Mist, Rock Island Bend, Franklin River, Tasmania, 1980 by Peter Dombrovskis, 1945-1996 Credit: Liz Dombrovskis