PQLITICAL GEOGRAPHY QUARTERLY, Vol. 4, No. 2, April 1985,91-110

Australia’s Constitution, federalism and the ‘Tasmanian Dam Case’

DAVID MERCER

ABSTRACT. By their very nature, all federal systems of government are subject to a number of different forms of political conflict. These vary in intensity from nation to nation and from one time period to another. The various forms of conflict are first outlined in this paper. Then a closer look is taken at recent developments in the evolution of Australian federalism and the debate over the country’s Constitution.

Specifically, the article discusses the landmark High Court decision of 1 July 1983, when it was decided that the commonweal had the power to override the Tasmanian state govemm~t on an energy question. The issue concerned the construction of a new dam for hydra-power on the Lower Cordon River and subsequently became the most bitterly fought conservation battie in Australia’s history. The background to this important case and the implications for Australian federalism are both discussed.

While the implications of resource scarcity and competition in the international arena have

been fairly thoroughly analysed and debated in the economics and political science literature (e.g. Connelly and Perlman, 1975; Hueting, 1980), by no means the same level of interest has been demonstrated with respeci to the domestic sector of modern economies. Accordingly, in a recent paper, Fi~terbu~h (1983: 59> addressed himself to the ambitious question: ‘What will be the consequences of increasing scarcity on countries that have a measure of affluence?‘. The writer defined scarcity as ‘increasing real costs for raw materials and productive land’ (p.59) and in the course of his discussion developed an elaborate, speculative framework of continuous and discontinuous change based around this central question. In summary, Finsterbusch (1983: 60) concluded that scarcity:

. . directly or indirectly increases seven unpopular characteristics of countries: disintegration, disturbances, repression, inequality, centralization, and national and international conflict; and it decreases three popular characteristics: so+ economic development, democracy and legitimacy.

Leaving aside the vexed issue of how such value-laden concepts as ‘democracy’ or ‘socio- economic’ development are, or should be, o~ration~ized, it could be argued that by their very nature federal systems of gove~ment are especially vulnerable to ‘disintegration’,

0260-9827/85/02 0091-20 SOS.00 0 1985 Butterworth & Co (Publishers) Ltd

92 Constitution and~edera[is~ in A~st~a~~

‘disturbance’ and ‘conflict’, and it is not uncommon for them to be characterized as ‘fragile’, or ‘prone to breakdown’. ‘Federalism’ is a somewhat difficult concept to define precisely. Paddison (1983) notes, for instance, that in addition to the unambiguous ‘classic’ constitutionalfederations such as Canada, Australia or Switzerland, there are also a number of states exhibiting important ‘federal qualities’. Italy and the United Kingdom are clearly

representative examples here. Despite the difficulties of deciding precisely where to draw the line between countries that are ‘more’ or ‘less’ federal, Sawer (1967: 1) argues that all genuine federal arrangements have three essential core elements:

I . first, the existence in a geographic area of several governmental units, one having competence over the whole area, the others over defined parts of it, and sharing between them power to govern; second, a relation between the governing units such that each has a reasonable degree of autonomy within its prescribed competence; third, an inability of any one unit to destroy at will the autonomy of the others.

The key word in this passage is ‘autonomy’. In any given federal jurisdiction, those bureaucrats, commentators and political strategists pressing for strong central planning and control frequently invoke the rhetoric of ‘collapse’ when confronted by intermittent pressures for greater political and economic autonomy from subordinate state or provincial administratons. Likewise, overly enthusiastic centralist tendencies are invariably condemned by those urging the advantages of devolution and the decentralization of power and decision-making. Above all, it is frequently asserted that, by comparison with the :entral administration, subnational levels of government are more ‘sensitive’ and can respond much more quickly to community needs. The growing influence of private corporations-particularly transnational companies-has recently added a complicating factor to the picture in many countries. In what he terms the ‘triangular contest’ for the attraction of international capital and the control of resource profits, Stevenson (1976: 2) points out that in any given federal setting three political ‘alliances’ are possible at different times: ‘both levels of government combining against business, business and central government combining against subnational government, [or] business and subnational government combining against central government’.

The defensive stance taken by one level of government against another-sometimes called ‘verticai’ conflict-is only one of the forms of intergovernmental stress that are common to all federations. The others are ‘~uri~~nta~ and ideological conflicts (Stevenson, 1976). Ideological tensions arise when different political parties are simultaneously in power at the national and subnational levels. Currently in Australia, for example, the Australian Labor Party is in power nationally and in four states. Conservative parties, on the other hand, are in government in Queensland and Tasmania. ‘Horizontal’ conflict refers to the situation where peripheral regions frequently feel disadvantaged by comparison with the more populous urban centres. In its extreme form this can give rise to ‘new states ‘or secession movements which have characterized all federal systems to varying degrees of intensity from time to time. Paddison (1983: 140), for example, documents the nine separate new state movements that have surfaced intermittently-though without success -in Australia since the mid-19th century. Cultural and language differences can some- times add a further dimension to horizontal conflict. The example of Quebec is so well known that it scarcely needs ampli~cation here. Less widely pubhcized is Garreau’s (1981) masterly exposition of the stresses currently building up within the United States federation as ‘Mexamerica’ takes on a quite distinct identity based largely around ethnic and language differences.

DAVID MERCER 93

Historically, countries such as Canada and Australia have gradually redirected their ‘external’ political and trade allegiances in line with market shifts and the continually changing international demands for new resources. In turn, these changes inevitably have

given rise to quite new regional power alignments and intergovernmental conflicts within the nations concerned. Galligan (198 1) and others have pointed out that in some countries the initial conditions of regional heterogeneity may well have warranted a kind of federalist solution but that subsequent radical changes have made the concept virtually irrelevant to contemporary economic and political realities. In the Canadian context, for example, Lithwick argues that ‘phony regionalism’ can sometimes be used as a powerful propaganda device to fragment oppositional forces and ‘direct attention from more basic cleavages’ (1980: 62).

If there are two overriding characteristics of federalism they must surely be, first, its dynamism and, second, its seemingly infinite variety. Descriptors such as ‘new’, ‘integral’,

‘polyvalent’, ‘adaptive’ or ‘multidimensional’ are commonly used in the literature in conjunction with ‘federalism’. Similarly, commentators inevitably approach the topic from their own ideological perspective. Political theoreticians such as James Madison-the leading architect of the American Constitution-subscribed strongly to a Lockean-liberal view of society, passionately believed in private enterprise and consistently argued for strict limitations on the interventionist activities of government (Riker, 1964). More recently, the influential liberal economist F. A. Hayek (1949) further reinforced this ideological position. When emphasizing the need for limited government powers at both the national and lower levels, he argued that ‘an essentially liberal economic regime is a necessary con&ion for the success of any interstate federation’ (p.269; emphasis added). Such views are of course at complete variance with the stance taken, for example, by the European socialist federalist theoreticians such as Alexandre Marc (1979).

Through time all federal systems exhibit dynamic fluctuations between the extremes of centralism and what is often perceived to be a more ‘democratic’ system of decision-making. Moreover, in their origins one can discern a pronounced national preference for a greater or

lesser degree of planning and control ‘from the centre’. For example, some 80 years after the formation of the US federal system the architects of the Canadian confederation were clearly of the opinion that the American Constitution gave far too much power to the states. In Sections 91 and 92 of the British North America Act (1867) they thus reversed the distribution of powers operating in the United States, thereby giving considerably more control to Ottawa. By comparison, the Australian federal system-which, historically, was the fifth of the world’s federations-rejected the Canadian model and was aligned much more closely with the American Constitution in terms of the distribution of powers, the terminology adopted and the range of concurrent jurisdictions enumerated.

Australia: The Constitutional Debate

However, as Livingston (1968: 100) rightly points out, ‘A federal constitution tends to be what the judges, rather than what the founding fathers say it is’, and this is as true of the Australian Commonwealth as it is of any other federal administration. Indeed Head (1983) opens a recent discussion on the ‘crisis’ of Australian federalism with the basic proposition that political (i.e. legal) conflict is at the very heart of all federal systems. Unlike Britain, Australia has a written constitution, but historically that has not stopped intense debate concerning the precise locus of sovereign power. Under a federal system there are bound to be ambiguities which are not always necessarily clarified by the constitution. And of course, in reality, constantly changing commonwealth-state relations are strongly interactive and

94 Constitution and federalism in Australia

interdependent. Commenting on recent developments in Australia, for example, Marsh (1983: 438) notes that ‘Relationships of interdependence between federal and state governments have been established that would have been inconceivable pre-war’.

Since the new federal Labor government was elected to office on 5 March 1983, these topics have been at the forefront of political and constitutional legal argument in Australia, at least partly because of the serious stresses and strains that had begun to appear as a result of the austere policies promoted by the previous (Fraser) government in Canberra. Under the Liberal/National Party coalition there had been a concerted attack on the states for their purported ‘extravagant’ spending. Without prior consultation, commonwealth payments to the second tier of government were reduced dramatically in the financial year, 198 1 - 198 2. The federal government’s heavy financial burden was largely transferred to the states. These were now required to take a much greater degree of responsibility for raising their own finances and to play a vastly expanded role in the provision of health, welfare and educational services. Added to these problems was the derivation-after a rigorous two-year inquiry-of a new relativity formula by the Grants Commission, in June 198 1. This is the body charged with assessing the level of federal funding that should be accorded each state. Under the old formula, distant ‘outlying’ states such as Western Australia and Tasmania, with small populations and a narrow resource-oriented economic base, were accorded extraordinary financial advantages. Under the new arrangement these states plus the Northern Territory had their generous subsidies considerably reduced, though the full implementation of this did not take place until the 1982-1983 fiscal year. Even so, in 1982-1983 Tasmania still received a net payment from the commonwealth of almost $1600 per head of population by comparison with Victoria’s $916 per person (Davidson,

1983a). Of particular relevance to the present discussion is the fact that infrastructure loan funds

for major public works projects such as dams, power stations and water-supply schemes were radically cut at Loan Council meetings in 1980 and 1981. This placed enormous pressure on the long-term development plans of states such as Tasmania where large public works schemes had always been seen as important symbols of ‘progress’ and major employers of labour. In short, there emerged a fundamental and seemingly irreconcilable contradiction between monetarism at the national level and developmentalism at the subnational level (Head, 1983). The states were forced into a situation of bitter confrontation, both with each other and with the federal government, leading the New

South Wales state premier-Mr Wran-to assert that federal-state relations were at their lowest ebb for some 40 years (The Australian, 3 June 1981).

In an attempt to build a more cooperative working relationship between the commonwalth and the states, one of the first initiatives of the Hawke government, after its election, was to hold a wide-ranging Constitutional Convention in April 1983. Not surprisingly, after the constitutional crisis of 1975 when the then Labor Prime Minister, Gough Whitlam, was forced to resign by the Governor-General, it is the Australian Labor Party (ALP) which has the strongest interest in constitutional reform (Howard, 1976). Questions of the following form are central to the ALP’s agenda: After some 80 years, does the constitution have any relevance for late 20th.century Australia? And is the system an obstacle to effective government?

The 1983 Constitutional Convention coincided with the publication of a number of polemical texts focusing on the nature of the Constitution and the future of Australian federalism. Of these, Australia’s Constitution: Time for Change? (McMillan et al., 1983), Australian Federalism: Future Tense (Patience and Scott, 1983) and Aldred and Wilkes’ (1983) book, A Fractured Federation?, are among the best known. Although these issues

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have particular currency at the moment, this is by no means the first time in Australia’s history that the constitution and federalism have been the subject of intense public debate. Greenwood’s classic, The Future of Australian Federalism, for example, was first published in 1946. This was at the height of the debate surrounding the Uniform Tax Scheme. A single tax scheme had been introduced at the start of the Second World War, replacing the six separate state taxation systems which operated prior to 1942. After the war, con- siderable controversy was aroused by the ‘centralist’ decision to retain the single, common- wealth-wide scheme (Else-Mitchell, 1983). Then, again, 1959 saw the publication of the non-partisan Report of the Joint Committee on Constitutional Review; and during the 1972-1975 period of Labor administration, Whitlam’s so-called ‘new federalism’ was

widely discussed and analysed (see, for example, Richardson, 1973; Mathews, 1974; Peachment and Reid, 1977).

Geographers have had a long-standing interest in federalism and the manner in which it is

related to the discipline’s central concept of regionalism (Dikshit, 1975; Lithwick, 1980). Robinson (1961: 2), for example, has described a federation as ‘the most geographically expressive of all political systems’. Following in this tradition, the present essay outlines some of the more salient features of the current debate surrounding the nature of federalism and the Constitution in Australia. Even though the essay is concerned specifically with Australia, many of the issues touched upon are relevant to other constitutional federations.. These include the relative power of central and state governments, the special problems posed by resource-rich and resource-poor regions and the thorny questions of legal constitutional interpretation (see, for example, Price, 1982). Particular attention here is focused on the changing locus of commonwealth/state power with respect to the environmental policy arena. This is accomplished primarily through an examination of the background and reactions to the now famous High Court decision of 1 July 1983 (The Commonwealth of Australia v. The State of Tasmania, High Court of Australia, Action no. C12, 1983). This was a landmark historical judgement handed down by a majority of the full bench of the Australian High Court, sitting in Brisbane. It has been described as ‘one of the most important constitutional cases to have arisen since federation’ (Coper, 1983: 1). Both the case and the subsequent decision received unprecedented media coverage in Australia and generated a considerable debate in the legal literature (Goldring, 1983; Lane, 1983; Somarajah, 1983).

Intense legal battles are frequently excellent pointers to the kinds of ‘disturbances’ alluded to by Finsterbusch (1983) and of all the contemporary ‘scarcity’ questions, few give rise to such heated conflict-both nationally and internationally-as energy issues (Thur, 1981). These are epecially vehement in Australia because of the role in which the country is being cast in the rapidly evolving US-Japanese economic strategy for the Pacific Rim. As a result of this reorganization, Australia-together with Canada and New Zealand- increasingly is being called upon to act as a supplier of cheap raw materials and energy for Japanese and American transnational corporations (Crough and Wheelwright, 1983). As a consequence, the country has experienced massive deindustrialization over the last 20 years or so. Manufacturing industries have been closing down at an alarming rate, and unemployment levels are now among the highest for the OECD nations. Tasmania, Victoria and South Australia have been particularly badly affected.

One effect of these tendencies has been for large resource and energy projects to be seen in some circles as a ‘salvation’ for economic ills. This ‘boomtown’ mentality is constantly promoted by the major transnational mining, mineral processing, timber and investment companies. They have the wealth, power and expertise to present the benefits of their operations in the best possible light and continually seek the most favourable least-cost

96 Constitution and federalism in Australiu

international locations for their ventures. Inevitably this leads to the ‘playing off’ of one region, state or nation against another as different administrations vie with each other ‘for the privilege of being “struck by the lightning’ ’ of outside capital’ (Walker, 1978: 32). Thus while, as we shall see, there are undoubtedly pronounced centrip& forces at work in the legal-political arena in federal countries like Australia, the reorganization of inter- national capitalism works just as vigorously in the opposite direction and leads to the increasing ‘disarticulation’ of national economies. Stilwell (1983) suggests that this is the main source of current tensions in the Australian federal system.

Paradoxically, the combined transnational corporation/state level government emphasis on what might be called ‘large project developmentalism’ has coincided with what many

political analysts have recognized as a profound recent shift in popular values and attitudes among Western publics. In his influential book The Silent Revolution, Inglehart (1977)

sketches the contours and implications of the new cluster of ‘post-materialist’ values which emphasize participation and decentralization, and exhibit a universal disdain for traditional authority relationships. The rise to prominence of post-materialist values has radically transformed the political environment and led to a growing recognition of the environmentally disruptive nature of many large-scale mining and engineering ventures. Well-organized opposition in the form of mass protest and demonstration is becoming increasingly common around the world. These protests are a logical response to the

frustration many people feel at their apparent exclusion from the decision-making process in liberal democracies.

As disillusionment with the traditional political parties and voting procedures deepens, single- and multiple-issue mass movements aimed at ‘democratizing’ the state have grown considerably in numbers and influence (Warhurst, 1983). Both O’Connor (1978) and Marsh (1983) regard these direct popular interventions in such aras as land-use planning, transport, workers’ health and energy development as now one of the main forms of political expression in contemporary Western societies. One apparent effect of the proliferation of a wide range of interest groups is what has been termed ‘pluralistic stagnation’ (Beer, 1982). Simplifying greatly, what this means is that as the traditional parties decline in political significance the polity fragments into so many separate factions that the government, of whatever political persuasion, loses its ability to mobilize consent and carry out its policies. There is, literally, ‘too much’ pluralism (see also deleon, 1983). No longer is it possible to say, because a particular party or coalition has been voted into office, that that necessarily confers on that party the authority to carry out a wide range of policies. Networks of special interest groups now form to fight particular issues and can dissolve just as quickly. Unusual alliances are also commonplace, as for example between trade unionists and middle-class residents in the case of Australia’s ‘green bans’ (Hardiman and Manning, 1975). In other words ‘the political agenda has been widened at the same time as the political process has been weakened’ (Marsh, 1983: 442).

Environmental activism and the ‘Tasmanian Dam Case’

The case that was considered by the seven High Court judges in Brisbane related to a significant ‘geographical’ conflict, though the actual setting for the legal and political drama lay some 2000 miles to the south, in the island state of Tasmania. Quite simply, the ‘problem’ was whether Tasmania’s state Hydro-Electric Commission had the legal right to build a new dam on the Lower Gordon River near the junction with the Franklin River in order to provide an additional 180 megawatts of electricity, or whether the federal government in Canberra had the constitutional power to override the state on this particular

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question. The case received unprecedented press coverage, at least partly because of well-

supported and highly publicized demonstrations across the country against the proposed new dam, culminating in a large blockade at the construction site in the summer of 1982-1983 (McQueen, 1983).

Mention has already been made of Inglehart’s (1977) identification of an apparent recent shift from ‘materialism’ to ‘post-materialism’ in advanced Western societies. Other researchers have since verified this phenomenon through empirical surveys (Cotgrove and Duff, 1981). Needless to add, the rise to prominence of environmental activism in the 1960s and 1970s is one of the most visible indicators of this trend and reflects earlier, recognizable surges of environmental concern in the 1890s the late 1920s and towards the end of the 1950s. All these periods were times of sustained economic growth and rapid environmental change. What tends to differentiate the post-war phase from the earlier ones is that here, governments have been the main direct and indirect promoters of large projects having an environmental impact and thus have been the main target of organized political

pressure (Lowe and Goyder, 1983). Typically in Australia, conservation groups have tended to adopt one, or a combination of

four major tactics (Davis, 1980). First, they have engaged in a variety of lobbying activities. Second, they have sought to challenge project methodologies (for example, the assumptions behind various demand forecasts). Third, they have attempted to use one level of government to place pressure on another. And finally-though generally with little success to date-they have resorted to legal processes. Direct, though non-violent, confrontation is a, relatively recent arrival on the Australian conservation scene and is a characteristic strategy of what Lowe and Goyder (1983: 177) refer to as promotional as opposed to the more moderate emphasis environmentalist groups. Its prolonged use in the present issue paralleled the tactics adopted in the similar campaign against the Alta hydro-electric scheme in Arctic Norway (Mathiesen, 1983). The blockade resulted in well over 1000 arrests and the short-term imprisonment of many environmentalists, including the British television

personality, David Bellamy (Warner, 1983). It was by far the most intense conservation battle in Australia’s history (Mercer and

Peterson, 1983) and a convincing case has been made for the argument that the environ- mental lobby was a crucial force in the election of the Labor government in March 1983 (Carr, 1983). Certainly, in the weeks prior to the National Election in January and February 1983, the then Leader of the Labor opposition-Robert Hawke-threw his full support behind the Tasmanian Wilderness Society’s ‘No Dams’ campaign. With some 70 active branches across the country, plus offices in England and the United States, this organization was numerically very strong and wealthy, had a high media profile and attracted its membership from a wide cross-section of the Australian community. By 1983 the society had been in existence for seven years. Together with sympathetic ancillary groups, it was estimated that at the time of the 1983 General Election the Tasmanian Wilderness Society had at least 500000 supporters nationwide and an annual turnover of between $(A)750000 and $(A)1 million (Milliken, 1983), making it the most powerful voluntary lobby organization in Australia’s history. Just prior to the election the society worked actively on behalf of the Australian Labor Party in 12 of the country’s most marginal electorates.

But it was not only the media-attracting events of the summer of 1982-1983 which focused the attention of Australians on a little-known river in remote southern Tasmania. This was simply one dramatic phase towards the end of a seven-year-long controversy which, among other things, had resulted in a state of:

parliamentary deadlock, a ministerial resignation, the toppling of a Premier, a

98 Constitution and federalism in Australia

referendum in which a third of the votes were informal, the prorogation of Parliament, the defeat of the government on a no-confidence motion, acts of civil disobedience and constitutional conflict (Kellow, 1983: 263).

One would be hard pressed to find a better contemporary example than this of Beer’s (1982) ‘pluralistic stagnation’. For some years the seemingly straightfo~ard decision to construct a new dam polarized the Tasmanian community and made the state virtually ungovernable. It was not until the intervention of the new commonwealth gove~ent and the High Court between March and July 1983 that the conflict was finally resolved.

The proposed dam site lay in the rugged, temperate wilderness of South-West Tasmania, a region which-in December 1982-became only the 30th natural area to be formally added to the World Heritage List by the World Heritage Committee. This, then, was another reason why this particular environmental issue attracted so much publicity both in Australia and elsewhere; for in many ways it was a controversy of international concern. The conflict is now widely referred to in Australian legal and media circles as the ‘Tasmanian Dam Case’. In brief, the High Court ruled that Canberra indeed had the power to dictate that dam construction should not proceed. ~evitably this provoked a storm of protest, both from angry Tasmanians and people in other parts of Australia, that the states themselves should be allowed the final say on large-scale energy development projects deemed essential for sustained economic growth. For example, a former conservative premier of Western Australia-Sir Charles Court wrote in the following outraged terms to the A~stra~~~ Fj~~~~~ Review on 12 July 1983:

The High Court Tasmanian dam decision was a black day in the constitutional history of Australia . . . It strikes at the very heart of the political integrity, stability and security of Australia . . One shudders at an Australia wholly administered from Canberra. It woufd grind to a halt.

Such a response was by no means unexpected. Historically, leading conservative politicians in the three ‘peripheral’ states of Western Australia, Queensland and Tasmania have always tended to be the most outspoken advocates of ‘states’ rights’. (It should be remembered that on 8 April 193 3 a referendum in Western Australia voted 2 : 1 in favour of secession. Forty years later the Westralian Secessionist movement re-emerged briefly.) Moreover, Court was clearly giving voice to the fears of many Liberal and National Party ideologues that the new prime minister had plans to curtail sharply the powers of the states. Hawke’s views on this matter are well known. For instance, in the first of the nationally broadcast 1979 Boyer Lectures he made the following forthright observation:

I believe the logical implication of this analysis is that Australians would be better served by the elimination of the second tier of government-that is the States-which no longer serve their original purpose and act as a positive impediment to achieving good government in our current community (Hawke, 1979, pp. 18-19).

In saying this, Hawke proposed a considerable strengthening of the third administrative tier-local government-and echoed many of the sentiments of the Joint Committee report published 20 years earlier. Surprisingly, given its timing at the height of post-war affluence in the ‘Lucky Country’ and the all-party make-up of the committee, this latter document bemoaned the relative lack of economic powers vested in the commonw~lth through the Constitution. It was stated that political fragmentation could be a major drawback in times of war or during a serious economic recession. in the Canadian context, too, Lithwick (1980) has argued forcefully that provinces are ‘fossilized’ and largely irrelevant spatial entities, too extensive to be sensitive to local requirements and bearing little relationship to the current geographical reaiities of the Canadian economy.

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Environmental legislation: The expansion of commonwealth responsibility

Central to the logic of any federal system is the notion that there exists a range of national issues which are best dealt with by the highest level of government and a subsidiary residue of essentially local problems which should be the primary concern of the regional authorities. In Australia-as in the United States-the Constitutional Conventions of the the 1890s which led up to the final version of the Constitution in 1900 were conducted by men who were staunch supporters of states’ rights. Hence the Constitution granted the central government in Canberra only a minimum of powers over a restricted number of areas such as immigration, defence and external affairs. Control over the large residue of other matters was lodged firmly with the states. Moreover, the structure of the original Commonwealth Parliament was deliberately designed to protect states’ interests. As well as

a Lower House, provision was also made for there to be an Upper House (or Senate) with equal representation from each of the six states. This was to ensure that the four smaller states were neither disadvantaged financially nor had policies ‘imposed’ on them against their will by the richer and more populous states of Victoria and New South Wales.

Under Section 107 of the original Constitution the states alone were granted full legislative responsibility for energy provision, water, mining and that vaguely defined area known as ‘the environment’. Thus, over a period of some 80 years, the six states evolved rather different energy and environmental policies. In the early 1970s Victoria, New South Wales and South Australia, for example, pioneered what was-for Australia-quite strong environmental protection legislation. On the other hand, a succession of governments in the remaining states-particularly Tasmania-clearly saw such legislation as being generally detrimental to the economic well-being of their citizenry, and consistently opposed its introduction. However, while the interests of the individual states were, in large measure, protected by the original Constitution, it is important to recognize that listed under Section 51 of the Australian Constitution are a number of specifically commonwealth powers which, if used in particular ways, have the potential to promote a wide range of environmental goals. Of these, three are especially important: external affairs, trade and commerce, and taxation (Bates, 1983). In this context, too, special mention has to be made of Section 96 of the Constitution. Under this section the commonwealth was given the power to attach special conditions to state grants. Over the years this power has been used increasingly by a succession of federal governments as a means of bringing the states ‘into line’ on various policy issues. In this sense, 1942 was a crucial turning-point in federal/state relations. Not only was the commonwealth granted full taxation powers but, if it so wished, it could disburse its revenues with conditions attached. The 1972-1975 Whitlam government made considerable use of the Section 96 powers in its attempt to give practical effect to the Commonwealth Solicitor-General’s 1944 prognosis:

The logic of the Uniform Tax Plan is that the states should eventually move with a simplified political structure into the position primarily of administrative agencies, the main level of policy in all major matters being nationally determined (Bailey, 1944: 188).

Finally, Section 109 of the Constitution also provides the commonwealth with potentially very strong legislative powers should it ever wish to exercise them. This is known as the ‘inconsistency rule’, and holds that where state ,and commonwealth laws are inconsistent the latter shall prevail and the former shall be deemed invalid.

Writing some 20 years ago Schattschneider (1960) noted perceptjvely that interest group demands that are constantly frustrated at one level are likely to re-surface sooner or later in another political arena. There are certainly indications that this has occurred in the

100 Constitution and jedera/ism in Australia

Australian environmental field where the country has tended to follow the American example, though with a slight time lag (Grunbaum and Wenner, 1980). It is still far too early to speak of anything even vaguely resembling a ‘national’ environmental policy in Australia but, as in the United States, what we can discern over the last 10 years or so is a faltering shift towards a situation where the central government gradually assumes a much greater degree of responsibility for such matters as wilderness preservation and pollution control. This was precisely the course predicted for the country in 1904 by Alfred Deakin, the country’s second Prime Minister, when he envisaged a steady expansion of commonwealth powers at the expense of the states (La Nauze, 1965).

The major impetus for greatly increased federal involvement came in the 1972-1975 term of Labor administration under the prime ministership of E. G. Whitlam. In that period four new important statutes were introduced, giving the commonwealth much greater powers in the environmental sphere. These measures followed some five years behind the example set by the National Environmental Policy Act (NEPA) in the United States, in 1969, and were as follows:

Environmental Protection (Impact of Proposals) Act, 1974 Australian Heritage Commission Act, 1975

National Parks and Wildlife Conservation Act, 1975 Great Barrier Reef Marine Park Act, 1975

More or less explicitly, the rationale behind all these statutes was that the time had come for Australians (as opposed to, for example, ‘Queenslanders’ or ‘Tasmanians’) to start recognizing that many of the country’s unique natural and cultural resources are, above all, of national-and in many instances of international-significance. By extension, the unquestioned assumption was that under certain circumstances preservation and conservation should take clear precedence as management goals over ‘development’ and that it should be the commonwealth government’s role to arbitrate in cases where there was a serious conflict of interest.

The first real test of the new legislation came in 1976 when the commonwealth government refused to grant the company of Dillingham/Murphyores a licence to export mineral sands from Fraser Island, the unique sand-mass national park off the Queensland coast (Gilpin, 1980). In so doing the government invoked the provisions of the Environ- mental Protection (Impact of Proposals) Act, 1974, and also used its constitutional powers to regulate overseas trade. The High Court rejected Dillingham’s challenge to this ruling and, in December 1976, mining operations ceased. The second time the commonwealth used its powers in connection with a major environmental issue came seven years later-on 1 July 1983-when it intervened in the Tasmanian Dam Case. Let us now turn to a closer examination of this particular conflict.

The ‘Tasmanian Dam Case’

First it is necessary to sketch out, albeit very briefly, some background detail on the Tasmanian state economy and administration.

Tasmania ‘s economy and bydro-industrialization

Like Scotland, Norway or Newfoundland, Tasmania is a classic example of a Western industrialized ‘peripheral’ region (Taplin and Tighe, 1982). As such, it has not developed the diverse commercial structure of Australia’s Victoria/New South Wales ‘core’ region,

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and economically has been hit disproportionately hard by the current recession (Wilde, 198 1). At the present time about 17 per cent of Tasmania’s 400 000 population are totally dependent on welfare, the highest figure for any state (Altman, 1983). The rugged and heavily forested island is separated by some 200 miles from mainland Australia by Bass Strait. As with other peripheral regions, for most of the 20th century its small economy has been grounded almost exclusively in a limited range of resource-based industries. Timber, agriculture, mining, tourism, fishing and energy-intensive mineral processing have always

represented the basic staple of Tasmania’s narrow economic base, and traditionally there has been a strong emphasis on hydro-industrial development (Crabb, 1982). In common with its latitudinal counterparts-Chile and the South Island of New Zealand-the state has a high average rainfall, mountainous terrain in the west and many lakes and fast-flowing rivers. The topography is thus seen to be ideally suited to the development of hydro-projects, and for the last 70 years or so ‘hydro-industrialization’ has been synonymous with the island’s economy. With only 3 per cent of Australia’s population, Tasmania generates almost 10 per cent of the country’s total electricity output. One plant alone-the Bell Bay aluminium smelter-uses more electricity in a year than the entire state of Western Australia; and internationally, on a per capita basis, only Norway exceeds Tasmania in terms of electricity consumption.

Earlier in the paper, reference was made to the importance in Australian political and economic life of Loan Council grants from the commonwealth government to the states. Traditionally, Tasmania has always spent the major portion of this allocation on hydro- projects at the expense of such things as housing, public transport, hospitals and schools. In 1954, 70 per cent of these funds was spent on electricity schemes. By 1970 the figure had dropped slightly to 54 per cent, at which approximate level it has remained ever since. Nevertheless, this is still far in excess of the 18 per cent average for the mainland states and demonstrates the enormous political power of the state’s Hydro-Electric Commission (Commonwealth Year Book, 1972). By 1980 the hydro-construction budget had risen to $102 million and the projection for financial needs for 1981-1982 was set at $140 million. Considerable agitation was created in the state in June 198 1, when the commonwealth capital works loan fund allocation to Tasmania was effectively cut by 10 per cent and frozen at $92 million (Thompson, 1981).

In line with the philosophy enthusiastically adopted in the past by Norway, Sweden, Newfoundland and British Columbia, until very recently it has been an unquestioned assumption that hydro-power is ‘cheap’ and ‘clean’ and that harnessing the state’s hydro potential inevitably will lead to the attraction of further industry and employment growth. To be critical of this fundamental belief in the island state-as was the Tasmanian Wilderness Society from the early 1970s onwards-is tantamount to sacrilege. Altman (1983: 8) makes this point forcefully when he argues that ‘the attack on the Franklin/Gordon scheme was an attack on the basic economic policies of post-war Tasmania . . . When the High Court overruled the dam . . . a psychic shock ran through the whole island’. At a time when Tasmania had the highest level of unemployment of all the states (about 19000 people, or 10 per cent of the workforce, in September 1982) a new dam on the Lower Gordon River was regarded by leading Tasmanian politicians and bureaucrats as a vital job-creating economic saviour for the ailing economy. In the rhetoric of the ruling ideology, to oppose the project was to condemn people to unemployment (Nazis and Grossman, 1982).

In the affluent post-war ‘long-boom’ decades of the 1950s and 1960s the hydro- industrialization policy seemed to work quite well. Wilde (1981) notes that peripheral regions typically compete with each other and with less-developed countries to attract

102 Constitution andfederalism in Australia

industry. This can be done in many different ways, including the granting by the state of special subsidies and concessions, the provision of basic infrastructure, and the like. In Tasmania’s case, the cheapest power in Australia was used as the principal bait. Twenty-five hydro-electric schemes were progressively built by the state’s Hydro-Electric Commission over a 68.year period and 19 largely overseas-owned major energy-using industries set up their operations in Tasmania. Of these, pulp and paper manufacturing, aluminium and zinc processing are the main concerns. Companies such as Comalco, Temco, Electrolytic Zinc and Australian Paper Mills Ltd have taken advantage of the extremely generous energy tariff rates offered to bulk purchasers of electricity. Accordingly, while large users pay less than 1 cent per unit of power (below the marginal cost of generation and distribution), household consumers are charged five times that amount. This has led to charges that the average Tasmanian household subsidizes the small number of bulk users to the tune of some $(A)50 per quarter, that the major energy-using industries are capital rather than labour intensive, and that mineral-processing jobs are disproportionately expensive to initiate and sustain by comparison with other kinds of employment (Jobs for Tasmanians Committee, 1983).

Critics of hydro-industrialization have been quick to expose and destroy the myth that there is necessarily a link between energy use and employment generation (Grossman and Daneker, 1979). For example, in both the metal-processing and paper products sectors of the Tasmanian economy electricity use expanded markedly between 1969 and 1978 (by 25 and 99 per cent, respectively), yet total employment declined (by 20 per cent and 5 per cent) in these two areas in the same time period (Jobs for Tasmanians Committee, 1983). Moreover, while a relatively small number of energy-intensive industries consume about two-thirds of the electricity produced on the island, only about 6 per cent of the state’s workforce is now engaged in block energy-using operations (Senate Select Committee on South-West Tasmania, 1982). A further criticism is that the main industries that have been attracted to Tasmania in the past because of its cheap electricity are in fact ‘sunset’ industries with a doubtful long-term future. Internationally, zinc prices in 1983 were at their lowest level for many years and the large processing operation in Tasmania could not be said to be economically competitive. Paper-making appears set for steady contraction in the world of the paperless office and electronic communication; and the aluminium industry is currently undergoing extensive rationalization in the face of falling prices and potentially disastrous competition from some of the new rosin epoxies (Davidson, 1983b).

Opposition to hydra-industrialization

Traditionally, all power development schemes that have been proposed by the influential technocrats in the state’s Hydro-Electric Commission have been simply rubber-stamped by the state parliament in keeping with the dominant hydro-industrialization ideology (Herr and Davis, 1982). But in July 1980-for the first time ever-the government of the day rejected the HEC’s recommendation for the Gordon-below-Franklin Dam and opted instead for a marginally less environmentally damaging compromise scheme known as the ‘Gordon-above-Olga’. The House of Assembly duly passed a bill giving effect to this decision but the members of the conservative Upper House (the Legislative Council) favoured the original HEC suggestion of a new dam on the Gordon River below the junction with the Franklin, and refused to pass the bill. A parliamentary deadlock ensued for some months and, on 12 December 198 1, Tasmanians were asked to vote on a referendum as to which of the two schemes they would prefer. Interestingly, they were not given the option of voting for neither of the two projects. At the final count 5 5 per cent of the votes cast were in favour of one or other of the hydro-schemes (47 per cent for Gordon-below-Franklin and 8

DAVID MERCER 103

per cent for Gordon-above-Olga) but-in an unparalleled show of civil disobedience-45 per cent of the votes were ‘informal’. Almost a third of all the ballot papers (84 5 14 votes) were

endorsed with ‘no dams’ (McQueen, 1983). Notwi~stan~ng the unprecedented size of the informal vote and the fact that 53 per cent of voters did not vote for the favoured engineering project, the Hydro-Electric Commission saw this result as a popular endorsement of its original plans and its guardianship of the Tasmanian ‘public interest’. The state parliament was then promptly prorogued until March 1982. As a consequence of elections held in May 1982, the state government changed to a Liberal administration under a new, strongly ‘pro- dam’ premier, Robin Gray. The former Labor leader, Doug Lowe, was elected as an Independent, and Bob Brown-the charismatic leader of the powerful Tasmanian Wilderness Society-narrowly missed election. Finally, on 16 June 1982, a bill was passed by the House of Assembly giving full assent to the Gordon-below-Franklin scheme. The vote was a convincing 29:2 with the former premier, Lowe, being one of the dissenters. This created widespread outrage as many people argued that the Tasmanian electorate had never been given the opportunity to vote in a referendum on whether or not they supported any dam construction on the Lower Gordon River.

Given the size of the informal vote, it is clear that over the years a significant number of adult Tasmanians had radically changed their views concerning the alleged benefits of hydro-industrialization. A large part of the explanation for this dramatic shift lies in the kind of physical environment into which the HEC was now moving. South-West Tasmania is an extensive, mainly uninhabited, wilderness environment occupying about a quarter of the island state. Parts of the area remained unexplored until the early 1960s. Together with Tierra de1 Fuego and the South Island of New Zealand, this is one of the few remaining wet temperate wilderness regions in the world. Its scientific and aesthetic values are thus immense. From 1963 onwards, with the help of commonwealth funds, the Hydroelectric Commission started building roads and dams in the south-west wilderness region, as Stage One of the Gordon River Power Scheme. Strong public opposition to these incursions into the pristine wilderness gradually built up to a crescendo, but by 1972 construction work was well advanced. Then, in 1973 under pressure the newly appointed federal Labor government instituted a belated enquiry into the Gordon River project. This was the first hint that the environmental values of South-West Tasmania were an issue of national concern and represented a complete break with past practices. The Lake Pedder Committee of Enquiry finally released its report in April 1974 with a r~ommendation that the scheme be modified to take account of conservation arguments and that ample compensation should be paid to Tasmania from the commonwealth coffers. Both the Hydro-Electric Commission and the Tasmanian state government of the day totally rejected the committee’s recom- mendations and the first stage of the Gordon Power Scheme was duly completed (Davis, 1980).

By the time the Whitlam national Labor government was elected to office in 1972 there was no doubt that South-West Tasmania was considered by many Australians to have very special conservation status. There were mounting pressures for control of the area to be taken out of the hands of the narrowly parochial Hydra-Electric Commission and the Tasmanian government and passed to Canberra. This rising tide of public opinion began to spread widely throughout Australia in 1980 and 1981 with the result that finally-in September 1981-the federal Senate appointed a six-man committee to investigate:

(a) The natural values of South-West Tasmania to Australia and the world; and (b) Federal r~~nsi~~ity in assisting Tasmania to preserve its wilderness areas of national

and international importance, including appropriate financial assistance consistent

104 ~~~s~i~~t~o~ a~d~~dera~~~ in Ai4s~ra~~

with the State’s energy requirements (Senate Select Committee on South-West Tasmania, 1982: 4)

The committee held open hearings in Hobart, Canberra, Melbourne and Sydney and also received 746 written submissions on the issue. One measure of the level of national interest is that no fewer than 606 of the submissions were from parts of Australia other than Tasmania. The committee looked particularly critically at the official HEC energy projections and needs for the state and concluded that they were unrealistically high. In any case it was felt that a range of alternative energy options could well be employed, thus obviating the need to proceed with the disruptive Gordon-below-Franklin Scheme. These included the possibility of a thermal power station, interconnection with the Victorian grid across Bass Strait and the implementation of energy conservation measures.

The Senate report also made mention of the existence of unique aboriginal archaeological sites near the Franklin River and drew attention to the mass of evidence supporting the area’s natural values. The committee concluded presciently that ‘The Commonwealth may well be obliged to act to preserve the area and has a considerable number of powers and options open to it to enable it to meet that responsibility’ (Senate Select Committee on South-West Tasmania, 1982: 223).

International obligations: The World Heritage Convention

The opening of the Senate Committee of Enquiry coincided with the unfolding of what turned out to be a crucial series of events, this time in the international arena. In November 198 1, at the suggestion of Tasmania’s then premier Mr Doug Lowe, a portion of South- West Tasmania was nominated by the federal government for inclusion on the World Heritage List, The area nominated was already reserved in the form of three major national parks and, in total, represented about 11 per cent of Tasmania. The World Heritage List was initiated by the World Heritage Convention. This was adopted by Unesco in I975 following the UN Conference on the Human Environment, held in Stockholm three years earlier. The convention-formally known as the Convention for the Protection of the World Cultural and Natural Heritage-was established as a result of mounting international concern at the rapid deterioration of many natural and cultural sites around the world. The agreement was ratified by Australia in 1975 and currently has some 72 signatory nations. Endorsement of the convention obviously signifies a serious commitment to heritage conservation. A core of 21 countries comprises the World Heritage Committee of which Australia has been a continuous member since 1976. An Australian chaired the committee in 1981-82 and 1982-83.

As noted earlier in the discussion, in December 1982 a large tract of South-West Tasmania finally joined such famous sites as the Great Barrier Reef, the Grand Canyon and the Serengeti National Park to become only the 30th natural area to be formally added to the World Heritage List. By implication, the Australian national government became the trustee of that heritage. The review process prior to inclusion is an exhaustive one. In the case of natural areas the investigation and analysis is carried out by the International Union for the Conservation of Nature and Natural Resources. In order to qualify, a site has to satisfy at least one of four major criteria and to be judged of ‘outstanding universal value’. In the case of South-West Tasmania, all four criteria were easily met. Similarly, it was judged to meet at least three of the six criteria necessary for inclusion as a unique cultural site (Slatyer, 1983).

However, in considering whether or not to nominate South-West Tasmania for inclusion on the World Heritage List, the committee was placed in an extremely difficult position. In

DAVID MERCER 105

1982, legislation had been enacted in the Tasmanian Parliament authorizing the con- struction of the Cordon-below-Franklin dam. This was known as the Gordon River Hydro-

Electric Power Development Act, 1982 (Tas.). Quite clearly, this statute was in direct conflict with the spirit and purpose of the World Heritage Convention to which the commonwealth government was a signatory. Throughout 1982-this time under a new premier-the Tasmanian government made persistent representations to have the region removed from the symbolic’world heritage agenda. Moreover, the construction of access roads and preliminary works was already well advanced at the Lower Cordon River Dam site by late 1982. Accordingly, the World Heritage body suggested 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’ (Slatyer, 1983: 7). In effect this was a strongly worded statement to the federal government of the day reminding Australia of its obligations under the convention and recommending that dam construction should

cease immediately. There was also the embarrassing possibility that Australia could face expulsion from the World Heritage Convention. The Prime Minister, Mr Malcolm Fraser,

responded in early 1983 by offering the Tasmanian government $500 million in common- wealth compensation to not proceed with the project, but this was summarily rejected by the Tasmanian premier. The grounds for refusal were that the Cordon-below-Franklin Scheme

represented only a small part of the untapped resource potential of South-West Tasmania, which also included five additional hydro sites and some significant timber and mineral resources. The compensation assessment of the Tasmanian government at the time was

closer to a staggering $2500 million (The Age, Melbourne, 15 February 1983). Just what were Australia’s obligations and responsibilities under the World Heritage

Convention? This became a fiercely debated legal question. A former Liberal attorney- general, for example, argued that the convention was nothing more than a ‘watered down statement of political accord’ (The Age, Melbourne, 1 June 1983). This was by no means the first time that the subject of international treaties had become a contentious legal issue in Australia. Connell (1983) has pointed out that the power to implement treaties is always problematic in federal jurisdictions. Under such circumstances, unless it has the full cooperation of the states, the central government has to rely on whatever powers it can muster under the constitution in order to impose its will on ‘recalcitrant’ states.

The High Court decision

On 1 July 1983, by the small margin of four votes to three, the Australian High Court announced to an expectant public what has been called ‘the most momentous environ- mental decision since Federation’ (Cohen, 1983: 664). The High Court judgement confirmed the commonwealth’s powers to preserve the South-West Tasmanian wilderness against the developmentalist wishes of the state government and ended what was arguably the most protracted and bitter federal/state conflict in the country’s history. Although the decision was indeed momentous from the point of view of Australian environmental policy, rather than representing a complete break with the past it was merely the most recent of a long series of judicial interpretations of the Constitution which had consistently favoured an expansive, rather than a narrow view of the commonwealth’s powers. The long and reasoned arguments of the seven justices make fascinating reading, the differences of opinion underscoring the vagueness and opaqueness of an 80.year-old written constitution when applied to the modern world.

This is not the place to outline the complexities and details of the various judgements, but briefly the commonwealth claimed four separate and powerful constitutional justifications

106 Constitution and federalism in Australia

for its dominance over Tasmania in this particular case. These were: (i) the corporations

power [Section 5 l(20) of the Constitution]; (ii) the power to make special laws in relation to ‘the people of any race’ [Section 51(26)]; (iii) the external uffuirs power [Section 51(29)]; and finally, (iv) the ‘inherent’ or ‘nationhood’ power. Of these four, only the last is not specifically spelled out in detail in the Constitution but came to prominence in the Off-shore Sovereignty Case in 1975 [New South Wales v Commonwealth (1975)] when there was a conflict relating to the commonwealth’s sovereignty over offshore waters. Potentially this is very strong and has been described as ‘the power to deal with ‘ ‘national’ ’ questions that necessarily follows from the Commonwealth’s national and international identity’ (McMillan et al, 1983: 61).

Of the four constitutional powers invoked, the external affairs power [Section 5 1(29)] received by far the most concentrated attention on the part of the seven justices and was central to the debate over the Tasmanian dam, both before and after the High Court decision. Howard (1983: 17) puts it succinctly when he argues simply that today this section of the constitution,

is intended to allow the Commonwealth parliament to implement by legislation, where necessary, the obligations entered into in the international sphere by the Australian govenment on behalf of Australia as an independent nation.

A majority of the justices decided that the commonwealth indeed had a strong responsibility to the World Heritage Convention and that two specific pieces of legislation were relevant to this issue and had validity under the external affairs power. These were the National Parks and Wildlife Conservation Act (1975) and the World Heritage Properties Conservation Act (1983). It was argued that under these acts construction of the dam was unlawful unless a commonwealth minister first gave consent. Section 109 of the Constitution was also invoked with respect to the conflicting Tasmanian statute-the Gordon River Hydro-Electric Power Development Act (1982). As we have already noted above, under this section, if there is an inconsistency between commonwealth and state legislation, then the commonwealth law is deemed to have superior force.

By the time the High Court decision was finally made, the construction of an approach road and operations base was already well advanced. Premier Gray made immediate claims for financial compensation on behalf of Tasmania to the commonwealth government, and at the time of writing the final compensation amount appears to be around $280 million (The Age, Melbourne, 7 April 1984). This figure was arrived at after months of protracted negotiations over the cost of work already completed, long-term job losses and Tasmania’s future electricity needs. It is interesting to note that the sum is considerably lower than the $500 million compensation offered Tasmania in 1983 by the previous Commonwealth Prime Minister, Malcolm Fraser, as an inducement to abandon the scheme altogether prior to the national election.

Conclusion

Historically, all federal systems have exhibited tensions between favoured national policies and more parochial regional interests. Since the international energy crisis of 1973, in particular, rising energy prices worldwide have exacerbated these conflicts in such federal countries as Australia, the United States and Canada. Internally, within nations, the gap between energy- and resource-rich regions and their less well-endowed counterparts is becoming much more apparent (see, for example, Mitchell, 1981; Price, 1982). Inevitably this raises complex questions relating to such issues as national and state sovereignty,

DAVID MERCER 107

equity, and interregional wealth transfers. Fears have been expressed in some quarters that such countries as Canada and Australia are rapidly becoming ‘fractured federations’, consisting of a loose network of ‘disarticulated’ economies and being ‘nations’ in name

only. The evidence of the landmark legal case study discussed in this paper is that such fears are almost certainly unwarranted with respect to contemporary Australia.

The point has often been made that Australia is a deeply conservative society, exhibiting an extremely low level of political interest or involvement (Altman, 1979). For instance, since Federation, Australians have been asked to vote on 16 constitutional amendments, involving 36 separate questions. Of these, close to 80 per cent were rejected. This record has led Professor Geoffrey Sawer to remark that ‘constitutionally speaking, Australia is the frozen continent’ (1967: 208). However, there is little doubt that Australia’s Constitution was never intended by its originators to be a ‘hard and fast’ document. Even though formal constitutional amendment by and large has ‘failed’ over the years, judicial interpretation has consistently favoured an expansion of commonwealth powers into areas originally earmarked for state control. In Australia-as in the United States-both ‘energy’ and ‘environment’ are two such areas. As Wilcox (1983: 34) stresses:

The legal lesson of the dam case is that the Commonwealth can implement national policies on national environmental issues. The political lesson of the dam campaign is that the electorate expects it to do so (emphasis added).

It is still too early to assess the full implications of the Tasmanian Dam Case decision, but all the indications so far suggest that they are far-reaching. Since Federation Labor governments in Canberra have invariably found that their reformist objectives have been constantly thwarted by the Constitution and the manner in which it has been interpreted by a conservative High Court. But in July 1983 the High Court narrowly decided in favour of a policy strongly promoted by a new Labor Prime Minister at the beginning of his term of office. In effect this decision rewrote the Constitution, as it w&e ‘by the back door’ (Galligan, 1983) and paved the way for possible future extensions of commonwealth power, for example over companies and public corporations. It seems likely, too, that a bill of rights will be introduced since Australia is a signatory to the International Covenant on Civil and Political Rights.

Political geography is vitally concerned with analysing the spatial allocation of power and the processes and mechanisms through which change is effected. Since July 1983 this has been fundamentally modified in Australia by four non-elected judges. The enormity of this transformation was underscored by an editorial in the sober Australian Financial Review for 4 July 1983:

There is no doubt that the decision of the High Court with respect to the Tasmanian dam issue is the most important change to the balance of power within the Australian Federation since the uniform taxation decision of 1942. That decision established the financial and economic hegemony of the Commonwealth. Last Friday’s decision has now extended Commonwealth hegemony virtually without limit.

The obvious question now is: where does that leave the states? Perhaps today they are closer than they have ever been to being fossilized administrative entities, autonomous in name only.

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