FOR MEDIA 6 April 1983 36/ 83
PRIME MINISTER
JOINT STATEMENT BY THE PRIME MINISTER AND THE ATTORNEY-GENERAL
The Commonwealth Government issued a writ in the High Court
today seeking a permanent injunction against the Tasmanian
Government, the Hydro-Electric Commission and the Premier
of Tasmania restraining them from continuing the work
connected with the building of the Gordon-below-Franklin
dam. The basis of the Commonwealth's claim is that the State
legislation authorising the Hydro-Electric Commission
to build the dam is now invalid because it is inconsistent
with a Commonwealth law ( the Regulations under the National
Parks and Wildlife Act gazetted last week) which forbids the
building of the dam and work connected with it.
The Commonwealth also seeks an order that the Premier give a
written direction to the Hydro-Electric Commission that it
stop the work on the dam. This power is given to the Premier
by the Hydro-Electric Commission Act of Tasmania.
The Commonwealth's statement of claim points out that the Tasmanian
Premier of the day, Mr Lowe, requested the Fraser Government
to place the area comprising the Cradle Mountain Lake St. Clair
National Park, the Franklin-below-Gordon Wild Rivers National Park
and the Southwest National Park on the World Heritage List
and that the Commonwealth did so in accordance with that State
request.
The site was placed on the World Heritage List by the Commonwealth
at Tasmania's request:
because it contained unique examples of Ice Age
Aboriginal occupation of riverine areas;
because it contains rare and imperilled trees, plant
life and animal life; and
because it is one of the rare world examples of a
glaciated area of outstanding national beauty.
We reject claims made by the Tasmanian and Queensland Premiers
that the Commonwealth's action amounts to an unjustified interference
with States rights. / 2
This case raises legal and political issues not just of concern
to Tasmania but of real national and international significance.
The Commonwealth has a responsibility to the nation as a whole,
and a clear international obligation, to protect from destruction
this outstanding part of Australia's and the world's natural
and cultural heritage.
The Labor Government will always be sensitive to claims of
States rights, and will always attempt to resolve problems
by negotiation in the first instance.
But to say that the dam issue is for Tasmania alone to resolve
is as nonsensical as to claim that oil drilling on the
Great Barrier Reef is a matter for Queensland alone.
The Constitution does not, and never has, identified two
mutually exclusive " boxes" of powers one labelled*" Commonwealth"
and the other " State".
The balance between Commonwealth and State legislative power
has been changing and evolving ever since Federation as new
situations unforeseen by the founding fathers for example,
aviation and broadcasting have emerged.
By virtue of the international significance of the Tasmanian
wilderness and the treaty obligations the Commonwealth has
entered into at Tasmania' s request, the Commonwealth has
clear constitutional power to act in the way it has.
We believe that the Commonwealth has the clear duty-to so
act in the interests of all Australians and the world
community.
The commonwealth's legal team will be headed by the Solicitor-
General, Sir Maurice Byers Mr. A. R. Castan Q. C. and
Ms. Susan Kenny of the Victorian Bar, and Mr. Peter Underwood
of the Tasmanian Bar.
In the preparation of its case, the Commonwealth Goverrnent has
also had the assistance of archaeologists, anthropologists and
geologists of world standing who have verified the site's
outstanding universal value.
No clear timetable has yet been resolved for the hearing of this
case by the High Court, but it is the Commonwealth's intention
to have this matter ( and any other matter that may arise as a
result of the further legislation the Government will seek to
enact early in the May session) resolved as soon as possible
and practicable.
We hope that now that the matter is clearly headed for the
High Court the Tasmanian Government will at least agree in
the meantime to proceed no further with any work that could cause
irreparable damage to the World Heritage listed area, and the
Prime Minister has written t6 Mr Gray today seeking his
co-operation in this respect.
Attached: Copy of Statement of Claim issued with the Writ.
Conv letter Prime Minister to Mr Gray 6 April 1983.
IN THE HIGH COURT OF AUSTRALIA
REGISTRY
No. of 1983
BETWEEN: THE COMMONWEALTH OF AUSTRALIA
AND THE ATTORNEY-GENERAL OF
THE COMMONWEALTH Plaintiffs
AND: THE STATE OF TASMANIA First Defendant
THE HONOURABLE ROBIN GRAY
Second Defendant
HYDRO-ELECTRIC COMMISSION
Third Defendant
STATEMENT OF CLAIM
B. J. O'Donovan
Crown Solicitor for
the Commonwealth
Administrative Building
PARKES A. C. T. 2600
Tel: 612776
IN THE HIGH COURT OF AUSTRALIA No. C& of 1983
REGISTRY BETWEEN THE COMMONWEALTH OF AUSTRALIA AND
THE ATTORNEY-GENERAL OF THE
COMMONWEALTH Plaintiffs
AND THE STATE OF TASMANIA First Defendant
THE HONOURABLE ROBIN GRAY
Second Defendant
HYDRO-ELECTRIC COMMISSION Third Defendant
STATEMENT OF CLAIM
The second defendant is the Premier of the State of
Tasmania and the Minister responsible for the administration
of the Hydro-Electric Commission Act 1944 of that State and as
such is empowered after consultation with the third defendant
to give to it any written direction that he considers to be in
the public interest with respect to the performance or exercise
by it of its functions, duties or powers under the Hydro-
Electric Commission Act 1944 or any other Act.
2. The third defendant is a body corporate incorporated
by and under the provisions of the Hydro-Electric Commission
Act 1944 ( Tas.). / 2
3. By that Act the third defendant is empowered within
the State of Tasmania to construct any works, to operate, manage,
control, and generally carry on and conduct any business
whatsoever relating to, or connected with, the generation,
reception, transmission, distribution, supply and sale of
electrical energy and to carry out in relation thereto any
purpose which it may deem desirable in the interests of that
State including, with the authority of Parliament, the construction
of any new power development.
4. On 16 November 1972 the General Conference of the
United Nations Educational, Scientific and Cultural Organization
( the Organization) adopted a multilateral Convention entitled
" Convention for the Protection of the World Cultural and
Natural Heritage" ( hereinafter called " the Convention").
On 22 August 1974 Australia deposited its instrument
of ratification of the Convention with the Secretary-General
of the Organization and on 17 December 1975 the Convention
entered into force pursuant to the provisions of Article 33
thereof. As at 16 March 1983, seventy-two countries from all
regions of the world had become parties to the Convention.
6. On 22 September 1981 the then Premier of the State
of Tasmania requested the Prime Minister to submit to the World
Heritage Committee established under the Convention the
nomination of an area described as the Western Tasmania
Wilderness National Parks. The area referred to in the
nomination comprised the Cradle Mountain Lake St Clair
National Park; the Franklin Lower Gordon Wild Rivers National
/ 3
Park and the Southwest National Park each of which was a State
reserve within the meaning of the National Parks and Wildlife
Act 1970 ( Tas.).
7. On 13 November 1981 the Australian Government
submitted a nomination substantially in accordance with the
request by the said Premier to the Secretariat of the World
Heritage Committee in accordance with paragraph 1 of Article
11 of the Convention.
8. By submitting the said nomination to the World
Heritage Committee the Commonwealth identified the said area
( hereinafter called " the property") as property forming part
of the cultural heritage and natural heritage for the purposes
and within the meaning of the Convention.
9. The property:
contains natural features consisting of physical
and biological formations, and groups of such
formations, which are of outstanding universal
value from theaesthetic and scientific points
of view;
contains geological and physiographical formations
which constitute, and is itself an area which
constitutes, the habitat of threatened species of
animals and plants of outstanding universal value
from the points of view of science and conservation;
contains natural sites, and is itself a natural
area, of outstanding universal value from the points
of view of science, conservation and natural beauty;
/ 4
contains archaeilogical sites which are of outstanding
universal value from the historical, aesthetic,
ethnological and anthropological pointsof view.
Under the Convention, Australia has the duty of
ensuring the identification, protection, conservation and
presentation of the property and its transmission to future
generations, and the duty to do all it can to that end to
the utmost of its own resources.
11. By reason of the Convention, and in the circumstances
hereinafter alleged, Australia is bound to take appropriate
legal measures necessary for the protection and conservation
of the property.
12. By the Gordon River Hydro-Electric Power Development
Act 1982 ( Tas.) which commenced on 12 July 1982 the third
defendant was authorized to construct a new power development
on land within the property.
13. On 17 August 1982 in pursuance of section 16( 1) of the
National Parks and Wildlife Act 1970 ( Tas.) the Lieutenant-
Governor declared inter alia that the areas of Crown land therein
specified which included parts of the property ceased to form
part of the State reserve known as the Franklin Lower Gordon
Wild Rivers National Park. In relation to two areas forming
part of the property the proclamation took effect on 3 September
1982 and as to a third area forming part of the property, the
proclamation will take effect on 1 July 1990.
14. Pursuant to section 35 of the Hydro-Electric
Commission Act 1944 ( Tas.) and a proclamation dated 7 September
1982, the ownership of the first two areas referred to in
paragraph 13 above vested in the third defendant on 16
September 1982 and the ownership of the third area referred to in
that paragraph will vest in the third defendant upon the said
proclamation taking effect on 2 July 1990.
The third area referred to in paragraph 13 above contains
a number of the archaedological sites on the property which are of
outstanding universal value from the historical, aesthetic,
ethnological and anthropological points of view.
16. The World Heritage Committee at its meeting in Paris
between 13 December 1982 and 17 December 1982 included the
property in the World Heritage List pursuant to the provisions
of the Convention and in relation to that inclusion made the
following statement: " The Committee is seriously concerned at the
likely effect of dam construction in the area on those
natural and cultural characteristics which make the
property of outstanding universal value.
In particular it considers that flooding of parts
of the river valleys would destroy a number of
cultural and natural features of great significance
as identified in the ICOMOS and IUCN Reports.
The Committee therefore recommends that the
Australian Authorities take all possible measures to
protect the integrity of the property. 1
6.
The Committee suggests that the Australian
authorities should ask the Committee to place the
property on the List of World Heritage in Danger
until the question of dam construction is resolved."
17. The defendants have commenced to construct and intend
to continue to construct, and to procure the construction, upon
the first two areas referred to in paragraph 13 above, the
Gordon River Power Development, Stage 2, which will consist of
a dam, a coffer dam and associated works.
18. In particular, the third defendant has, in the
course of the said construction, done or procured the
following acts: excavation works;
the erection of buildings and other substantial
structures; the killing, cutting down, damaging and/ or
removal of trees; and
the construction and establishment of roads and
vehicular tracks.
19. The works that have been carried out, and are
proposed to be carried out, have already caused irreparable
damage to the property and will cause further irreparable
damage to the property. The erection of a coffer dam will cause
the flooding and destruction of archaeological sites including
those which are located in the third area referred to in
paragraph 13 above which are of outstanding universal value
from the historical, aesthetic, ethnological and anthropological
points of view. The erection of the coffer dam and the
principal dam will each result in the permanent flooding of a
/ 7
substantial portion of the whole of the property thereby
destroying many of the features set forth in paragraph 9
above. On 30 March 1983 the Governor-General of the
Commonwealth, acting with the advice of the Federal Executive
Council, made the regulations set out in the Schedule hereto
pursuant to section 69 of the National Parks and Wildlife
Conservation Act 1975 ( Cth.).
21. The defendants threaten and intend to continue to
do acts referred to in paragraphs 17 and 18 above in contravention
of regulation 5 of the said Regulations.
22. This action is within the original jurisdiction
of the High Court because the Commonwealth is a party and
also because it is a matter arising under, or involving the
interpretation of the Constitution.
AND THE PLAINTIFFS CLAIM:
an injunction restraining the defendants from
causing or permitting the carrying out of the
works referred to in paragraphs 17 and 18 above;
a mandatory injunction requiring the second
defendant to take all steps necessary to give
a written direction to the third defendant
pursuant to section 15B of the Hydro-Electric
Commission Act 1944 ( Tas.) to refrain from
continuing the said works;
8.
a declaration that, in so far as the Hydro-
Electric Commission Act 1944 ( Tas.) and the Gordon
River Hydro-Electric Power Development Act 1982
( Tas.) purport to authorise the third defendant to
carry out the said works, they are inconsistent
with the National Parks and Wildlife Conservation
Act 1975 ( Cth.) and the Regulations made thereunder,
and are invalid.
such further or other relief as the Court may deem
meet. A. R. Castan
ii Peter G. Underwood
Susan Kenny
JKjC PRIME MINISTER CANBERRA
-6 APR 1983
My dear Premier
I refer to the actions shortly to be taken by both our
Governments to have legal issues relating to the
Gordon-below-Franklin Dam referred to the High Court
of Australia.
The Commonwealth will be seeking to expedite the
resolution of all the legal issues, but having regard
to the matters involved and to what is proposed it
could be some time before the final outcome is known.
The Commonwealth would prefer these issues to be
resolved without any unnecessary confrontation, while
preserving the rights and interests of both Governments
in the meantime. Of course you will appreciate that
unless and until the matter is resolved otherwise by
processes now under way, the law as it stands is being
breached by your proceeding with the construction of
the damn project.
In all the circumstances, I seek your assurance that,
pending the final outcome of legal proceedings,
construction on the Darn site and associated works will
be suspended in order to ensure that irreparable damage
will not be caused to any-area placed on the World
Heritage List.
May I make clear my Government's willingness to assist
those directly affected by the suspension of work on
the project by the transfer of employment from the
various contentious work sites to other appropriate
projects identified in consultation with your
Government. I would be grateful fdr your early response.
Yours sincerely
R. J. L. Hawke
Hon Robin Gray, MHA
Premier of Tasmania
HOBART TAS 7000 Printed byC . J. T ioomm^ OCo mmonwealth Government Printer. Canberra