Facts of the case: In 1974 Australia ratified (supported) a world wide treaty (with UNESCO) to protect sites for cultural and heritage purposes; to ‘ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage’ of monuments, buildings, sites, natural features geological formations and so on. In 1978 the Tasmanian government authorised the building of a dam in the Franklin River. There was a lot of opposition to the building of this dam; in fact it was a 5 year campaign. A lot of high profile people from various professions supported the cause. Bob Brown gained a profile as an activist from this campaign.

In November 1982 the Commonwealth Government nominated this area to be included in the World Heritage List. On 14 th December 1982 UNESCO successfully listed this area as a world Heritage site, and hence to be protected On the same day in 1982 a blockade of the dam site was organised.

In 1983 The Federal Government passed the World Heritage Properties Conservation Act Under this Act it is unlawful to carry out any excavation, drilling. building, damage, tree-felling, construction of roads or use of explosives in relation to an area that is protected by a conservation order. Building the dam would have meant excavating, drilling…) in the area and this was made unlawful by this new act,

The Dispute In 1983 The Tasmanian government took the dispute to the High Court and they challenged the validity of this act. The High Court had to determine whether the Commonwealth Parliament had the power to ban the building of a dam in Tasmania.

The Issue The matter was brought to the High Court in 1983 by the Tasmanian government. It claimed that the federal government had no powers under the Constitution to pass the World Heritage Properties Conservation Act They claimed that as the right to legislate for the environment was not named in the Constitution, and was thus a residual power held by the states, that the Act was unconstitutional.

The Finding by the High Court: The federal government, found in favour of the Commonwealth Parliament and claimed that the Act was valid. The found the Commonwealth, under S 51(xxix) 'external affairs‘, had the right to pass legislation blocking the dam's construction, as they were fulfilling their responsibilities under an international treaty (UNESCO). Since that region of the Franklin River had been listed on the World Heritage List in 1982, the Commonwealth had an obligation to protect that site.

The Impact: The High Court, by a majority of 4-3, upheld that the Act was valid and consequently the Commonwealth had the power to protect the area and prevent the building of the dam. The High Court interpreted S 51(xxix) ‘external affairs’ to mean that the Commonwealth has the power to legislate to implement treaty obligations it has entered into.

The effect on the division of powers between the state and federal parliament: was to expand the meaning of the words ‘external affairs’ to mean that the Commonwealth parliament had power to legislate in areas protected by international treaties.