THE FRANKLIN DAM CASE

THE  FRANKLIN  DAM  CASE

(MICHAEL   COPER)

in  general  addressing, there  are some  renowned   cases  which  fascinate  Widespread promotions have   minute enduring lawful cruciality.On the contrary pivotal for their development   of legal principal  normally attract  less promation.Howerver,The  Franklin  DAM  cases , is one of those extraordinary   cases which gained   massive

Publicity on media due to its importance as concerned to Consequences and implications legally as well as   constitutional cruciality.

The background of the case-;

The conflict of this issue of dam has celebrated background and is in any event set out in the judgment. There was a head on collision between state policy of economic development  and federal policy of environmental protection.

Under liberal premier robin gray, Tasmania authorized the construction of a dam hydro-Electric commission (the HEC) for generating electricity at minimized cost as well as to provide economic growth. A labor government was elected on 5March1983, after seven years of liberal government at the federal level.

There was an obvious commitment to stop the Gordon below Franklin scheme and to preserve the southwestern area.

Nevertheless the Hawke government’s politics of consensus.

However this case and dispute was difficult to manage and the new government actively acted in front of parliament had sat, to issue regulations udder’s 69”of the

National parks and wildlife conservation ACT 1975(CTH).

Previously there was legislation as concerned to labor government “section69” authorized regulations to give effect to particular international agreements, which also included “UNESCO” convention for the protection for the “world cultural as well as natural heritage”

Further more, to restrict the acts such as well as buildings of roads without the approval of the Minister, these regulations prohibited the construction of dam in that area.

The high court, completely rejected an agreement that the power in “S69”authorized

Regulations specifically in relation to parks reserves established under the act. The significant issue was that”S69”could constitutionally authorize to stop the project of

Construction of dam.

When parliament assembled, the government introduced legislation to supplement the national parks regulations. This was just well as concerned to common wealth because the regulations were finally held to be invalid. The legislation was the “world heritage properties conservations act1983 (cth)”, in which the  operation is recapitulated in the head note and set out completely in the judgment of chief justice.

This legislation prohibited the same clearing, excavation and building activities over a larger area without of the consent of the minister.

Along with the exception of property by which the compensation provisions in the regulations we superseded

However, the world heritage act did not directly prohibit dam construction but this

Was done by regulation, pursuant to provisions in the act which prohibited listed activities  as well as “any prescribed act”

This was form the common wealth’s point of view again because the substantive prohibitions in the  Act were consequently held either to be invalid, or for applying in a way which Tasmania may have been able by the HEC restructuring or otherwise construction of dam by a body other than a trading co-operation, to circumvent.

More ever, (those substantive restrictions and the national parks regulations)

Finally fell, not for back of power, but as a result of  short comings which were capable of being corrected

(Though may be with some political embarrassment)

By legislative amendment.

The literal importance of the decision lies in the wide view of the extent of commonwealth power taken by a large number of the justice of high court.

The Decision-:

The world heritage act depended importantly on four sources of commonwealth power the external affairs power (S.51 (xxix) of the constitution) which was also the argued basis for the national parks regulate, one, furthermore  the corporation power(S 51 (xx)) and an implied power argued to be inherent in the very existence of commonwealth as the national government and parliament

The prohibitions were consisted repeatedly in a number of markedly similar sections ,each rely on a separate source of power.

External Affairs:-

Most of the justices including mason, Murphy, Brennan and Deane jj etc

Held that commonwealth could give effect  to the convention under the external affairs power,

Although the national parks regulations were held to be invalid since Deane j thought opposing the views of the other three majority justices, that the regulations affected on acquisition of property for which  the world heritage act failed to provide just terms as required by S51(XXXi)

Of the constitution,

Prohibitions in the relevant section of the act were held to be invalid since DeanJJ and Brennan thought that they were very wide to be a proper way for affecting the conventions

These prohibitions under act was upheld under external affairs power  Dean j had found difficulties with the national parks regulations due to these prohibitions and then Brennan as well as DeanJJ  had found with the substantive prohibitions in the world heritage act

People of any race:-

A majority of justices including Mason, Murphy Brennan and dean jj held that these prohibitions which relied on the power to make laws with respect to the people of any race, were supported by the race power.

But again only dean j thought that they affected on acquisition of property otherwise than on just terms.

Similarly which relied on the external affairs power, were extended to” any prescribed act”,

The prescribed prohibitions of construction the dam was of avail here since Dean j held that this part of related section, not similar to the section which relied on external affairs power, could not be severed from invalid parts. These two sections have been treated differently in this respect, which should not be like that. the substantive prohibitions in the sections which relied on external affairs power had literally failed, in Deane J ,s opinion, for a diversified reason: they were not a proper means of implementing the convention, consequently the section which relied upon  the race power was invalid.

Corporations:-

Brennan J perceive that , as sufficient to decide that the related section was valid according to its narrower but independent and additional prohibitions of clearing, excavating when those activities were done by a trading corporation Gibbs CJ agree on this point of trading activities purpose.

However, most of justices such as Mason, Murphy, Brennan and Deane thought that the HEC was a trading corporation and that its constructions activities were carried out for the trading activities purpose. Hence the construction of dam was effective stopped due to

Regulations upheld under external affairs power and limited aspect of the section passed in reliance on the corporation’s power.

Nationhood-:

The so-called”nationhood”power was not required by Mason, Murphy and Brennan JJ,

Which power was inherent in the very existence the common wealth as the national  government  and  parliament.

Dean J did in fact hold that the prohibition  were not validly supported by this power, so that as a result an obvious majority

(Gibbs CJ, Wilson, Deane and Dawson JJ)

Held those provisions of the act which relied upon the power to be invalid

Acquisition of property:-

Deane J was impressed by the argument that there had been an acquisition of property .His view was idiosyncratic but it was  critical to finally failure of parts of the legislative scheme of the commonwealth.

Section100:-

In relation to the remaining arguments, a greater measure of agreement was attained on the express restriction in S 100 of the constitution and on an implied restriction that the commonwealth cannot be menacing to the continued existence of the states or impair their functional capacity. In   order to express   restrictions,    Tasmania

Shook   the     dust    of, s 100 and   debated that   the common   wealth had   Abridged the   right   of   Tasmania   to the reasonable use of the waters  of   Rivers  for   irrigation or   conservation Deane JJ ,Brennan,Murphy and Mason held that”S100”was not infringed, since none of the commonwealth provisions was a “law or regulations of trade or commerce, as needed by that section. It was dispensable, therefore, to consider whether Tasmania suggested hydro-electric scheme would have been appropriately expressed as a “use of the waters of rivers for conservation (let alone a reasonable utilization)

And no one described a perspective on these complicated and perplexing points.

Implied limits:-

Mason, Brennan, Deane JJ agreed, as to implied restrictions, that what’s o ever the precise restriction was, it had no application in the present  case. Murphy J even considered the argument as frivolous.

Since their honors pointed out, state functions were overridden whilst the commonwealth legislated sporadically

With state law in an area of concurrent power and the existence of the principle as Tasmania had debated for protecting states from specific kinds of interference by the commonwealth, was generally identified.

Consequently, the commonwealth successfully restricted the Gordon below Franklin scheme, and a clear majority of the justices of high court took a broad enough perspective of the powers of the common wealth to confirm and pursue of central power which has been revealed at least since the First World War .

It is suggested now, to examine the processes of reasoning by which this consequence appeared  and to perceive the implications of the decision for the future way of Australian constitutional law.