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The Background Politics of the Tasmanian Dam Case

Remarks by Professor the Hon Gareth Evans AC QC Opening ANU College of Law Tasmanian Dam Case Symposium, Canberra, 22 August 2013

Of all the constitutional law adventures in which I was engaged in the course of my career as an academic, agitator, advocate and rather hyper-active Attorney-General, the one that made probably the most impact on law and policy, but that I would probably also most like to forget, is the Tasmanian Dam Case.

Since I have forgotten nearly all the constitutional law I ever knew and  used to teach forty years ago at Melbourne University, I will leave it to the highly distinguished cast of speakers due to follow me through the course of today’s symposium to draw out the legal implications of the High Court’s decision for the external affairs power, the corporations power, the trade and commerce power, the race power, the just terms constraint on property acquisition, and even the implied prohibition doctrine with which I used to torture my poor students in Advanced Con Law.   

I’ll also leave it to others to draw out the wider policy implications – for Australian federalism,  the use of international law in domestic policymaking generally, for environmental protection, and for human rights – which were really very substantial indeed but will get a comprehensive airing during the course of the day. 

What I’ve been asked to do is, rather, to set the scene for today’s discussion by describing the background politics of the Dam case and how it came to be litigated, since I was rather intimately involved in that process –  to give you, as it were, the view from the cockpit.  I really had rather hoped that neither I nor anyone else would ever want to talk about some of this stuff again – there’s a limit even to my masochism – but I guess it will give me the opportunity to set straight at least that part of the story which seems to have been growing in the telling ever since.

The controversy over the Tasmanian Government’s decision to build a dam on the Gordon River below its junction with the Franklin River had been long in the making.  The State Hydro-Electric Commission had never in its long history even conceived of a dam it didn’t like, and developmental concerns still trumped environmental ones for most members of the State parliament, on both sides.  But the environmental movement had been growing apace, and there had been huge national controversy about the flooding of the beautiful and unique Lake Pedder in 1973, which was the first stage of the HEC’s plan for the Gordon development.

When plans were announced in 1979 to build the Gordon-below-Franklin dam, which involved flooding the lower reaches of the wild and scenically spectacular Franklin, another huge controversy erupted – inside and outside the Federal and State parliaments, with continuous demonstrations in the streets and on the ground in the wilderness area – and that pretty much remained the situation all the way through to the High Court’s decision in July 1983 that the Federal government had the power to block the dam.

Events in the Tasmanian Parliament took their usual labyrinthine course – with the argument being more about where precisely the dam would be located in the wilderness area, rather than not being built at all – and eventually resulted in Premier Doug Lowe losing his head, and Labor losing the 1982 election to Robin Gray’s Liberals, who were firmly in favour of the Gordon-below-Franklin scheme.  That left the Commonwealth as the only recourse for opponents, but while Malcolm Fraser said that he disapproved of the scheme, he resolutely maintained right up to and through the 1983 national election campaign that this was a State matter which only the State could decide – the real issue was not the environment, but “the essential nature of the Constitution”. 

What Fraser did do, however, in 1981 was submit the nomination of the various Tasmanian national parks (including the Franklin-Lower Gordon Wild  Rivers National Park) to the World Heritage Committee for placing on the World Heritage List, as Doug Lowe had earlier requested, and declined Robin Gray’s strenuous request to withdraw that nomination. With the affirmative decision in 1982 to include the parks in the World Heritage List, and with Australia having been a party to the World Heritage Convention since the Whitlam Government in 1974, the scene was set for a full-throated constitutional confrontation. All it needed was a federal government willing to take on Mr Gray.

The Australian Labor Party went into the 1983 firmly pledged to bring the construction of the dam to an end by any means we could.  It was a popular position nationally, and contributed to the substantial swing with which we won the election in March – but ended in tears in Tasmania, with us winning not a single seat in that state.  Undeterred by the local politics, we swung into action, immediately making regulations under the National Parks and Wildlife Conservation Act to prohibit road-making, building and tree-cutting in the area without the consent of the Commonwealth Minister, and then following that up, as soon as the Parliament sat, with the passage of the World Heritage Properties Conservation Act.

Drafting that legislation, in which enterprise I was involved as the new Attorney-General, was about as much fun as a constitutional lawyer could ever have sitting down. We threw every weapon in the armoury at it, with three separate sets of provisions prohibiting essentially the same activity, based respectively on the external affairs power, the corporations power, and – in relation to sites “of particular significance to the people of the Aboriginal race” – the 51(xxvi) race power. Armed with all this authority, and just a month after our election, in April 1983, the Commonwealth brought an action to restrain Tasmania and the HEC from proceeding with the dam construction.

Tasmania made clear that it would continue work on the dam until the case was concluded, and it was in that context that the Commonwealth decided to seek an interim injunction.  It was in the context of the need to obtain evidence of the depredation of the landscape, to support that injunction in particular, as well as the whole case, that I played the role for which I seem to be most remembered, and which I would most like to forget.

What we needed was hard evidence of exactly what was being done on the ground, and at what pace. With the area sealed off, and the Tasmanian Government being deeply hostile, it was not going to be easy getting anyone in at ground level without showing our hand, and perhaps producing a confrontation which we wanted to avoid. And ground level affidavits and photos would in any event only tell part of the story. A senior officer in the A-Gs Department came up with the idea of obtaining aerial photographic evidence, with a grid pattern being clearly marked and photographs at successive intervals clearly revealing changes on the ground over time. We thought of flying over in a small plane, which would have attracted no attention, but the photographs would not be taken from high enough to get the grid perspective we wanted. 

Thus the fateful decision to see what our friends in the RAAF could do.  No problem at all, said my colleague, the Defence Minister Gordon Scholes. Training flights took place all over the country all the time and the Mirages had the kind of photographic equipment which could take the pictures we wanted. So a mission from Williamtown was organized.  But unhappily, someone down the line in Defence comprehensively misunderstood the tasking instructions, failed to tell the pilot that the object was to take the grid photos from 6,000 – 9,000 metres, attracting as little attention as possible in the process: he was told only to overfly the area and secure photographs of it. So when he found the area covered in low crowd, exercising the initiative for which Australian servicemen are justly famous, he decided he had to get his photographs at all costs – and if that meant making multiple passes at altitudes of just a few hundred metres, frightening the daylights out of every living thing in the vicinity in the process – well so be it.

All political hell, needless to say, immediately erupted. Robin Gray accused the federal government of using the ADF to “spy” on his state, and bizarre as it was, this tag stuck. The story happened to break on the eve of the National Economic Summit, which the Prime Minister had convened to bring business, unions, professional and welfare groups – and the State governments – to reach a consensus on the country’s economic problems. Bob Hawke was not amused, and I am still in awe at the vocabulary he deployed to tell me that during the Summit’s first tea break. I wasn’t even able to tell him that we had some useful evidence for the case: the strip photos taken at that altitude lacked any framing perspective and were completely useless for court purposes.

Not having learned at that stage of my political career that the secret of ministerial success was to have no sense of humour at all, and that if you did have one keep to keep it under relentlessly close wraps – particularly anything hinting of self-deprecation, which would be bound to be taken literally – I compounded my felony in two spectacular ways in the days that followed.

First, by saying to a group of journalists at a doorstop, in a misguided play on the Brer Rabbit and the briar patch theme, “whatever else you write about this, don’t call me Biggles”  – which of course led to every cartoonist in the country having a field day for years thereafter (and still leads my grandchildren to ask why all the teddy bears in our toy drawers seem to be dressed in leather flying helmets and goggles).

And second, by my line in an answer to a question from Laurie Oakes at the National Press Club a little later, when I said that I guessed I had to rely on what was known in the legal profession – or if it wasn’t, ought to be – as the “streaker’s defence”, viz. “It seemed, your worship, like a good idea at the time”.

Well I guess our aerial photographs were not a very good idea, although if the enterprise had been conducted in precisely the way it had been conceived and authorised, I think there’s a pretty fair chance that I wouldn’t have been accumulating goggled and helmeted teddy bears (from well-intentioned gift givers at functions for the next decade, each of whom thought he or she was being hilariously original, and each of whom I could cheerfully have strangled).

But what clearly was a very good idea at the time, and remains so in retrospect, was to use the legal instruments at the Commonwealth’s disposal to protect a magnificent part of our national and international heritage.   It’s one of the achievements of that government of which we are proudest, and the implications of that case, both legally and in policy terms – which you are now about to explore in this excellently conceived symposium, on which I congratulate the organizers – will resonate for a very long time to come.