Tasmanian Dams Case – 25 years on.

By Jacinta Dwyer

LAW REVIEW JOURNAL 2008

In the early 1980s, as Tasmania became embroiled in the momentous battle that culminated in the Tasmanian Dams case, a young Bryan Keon-Cohen QC was embarking on his distinguished career at the Victorian bar. His practice required him to spend many hours surrounded by law reports, textbooks and briefs, but he also enjoyed the outdoors; he was a keen hiker and white water rafter. Prior to becoming engaged to act for the Tasmanian Wilderness Society, he had serendipitously planned a rafting trip with his friends on the Franklin River. As it turned out, he was on the Franklin River just weeks before he was in Canberra before the High Court. He could see through the trees to protestors in the forest. He found the river to be wild and dangerous and exciting, a true wilderness.

The unspoilt beauty and ruggedness of the Tasmania’s west was fresh in the mind of Keon-Cohen when he found himself amongst a cast of eminent and formidable lawyers - Sir Maurice Byers, QC SG; AR Castan QC; RJ Ellicott QC; MG Gaudron QC; DJ Habersberger, J Spigelman, and M Black QC (as they then were) – amongst others. The case ran for 9 and a half days before the High Court, a long case by High Court standards. It boasted the largest number of counsel to have come before the court and was not superseded until the Wik case concerning native title and pastoral leases in 1996 and then by the recent challenge to the Commonwealth Government’s Work Choices legislation in 2007.

Mr Keon-Cohen found the Wilderness Society, headed by Bob Brown to be a determined, well organised and well informed client. He also recalls that during the hearing, the court would adjourn for lunch and he remembers going up to chambers on the 6th floor with his leader, Michael Black QC (now Chief Justice of the Federal Court of Australia). They would receive phone calls there from the Wilderness Society explaining that their people were hugging trees and “to please tell the judges that the trees are hurting.” Keon-Cohen and Black explained that they would convey that to the judges as best they could. As interveners they were only permitted to address the Court for 20 minutes at the end of the case.

The dams controversy dominated Tasmanian politics for four years. It saw a change of government in favour of the Liberal Party for the first time in half a century in Tasmania, after the parliamentary Labor Party dumped its leader and Premier, Doug Lowe in a vote of 12:9. Labor lost government in May 1982. Construction of the dam commenced two months later.

The public referendum held in Tasmania in December 1981 exemplified the predicament the state found itself in. The referendum itself had been called by Premier Doug Lowe in early 1981. By the time the date for the vote arrived, Lowe had been dumped. There was much controversy about the question to be put to the public. Ultimately, it did not include a “no dams” option. Voters were to choose between the Gordon-below-Franklin scheme and the unpopular compromise, Gordon-above-Olga scheme (which had originally been proposed by Doug Lowe in an attempt to resolve the issue in 1979.) Conservationists were urged to vote “informal”. The results were:

Gordon-above-Olga 7.94%

Gordon-below-Franklin 47.14%

Informal 44.89%

The result was inconclusive. Conservationists claimed to have majority (informal plus Gordon above Olga) Pro dammers claimed to have majority (Gordon above Olga plus Gordon below Franklin)

Amidst the failure of the major political parties to resolve the issue, Australia witnessed one of the most well organised and effectively executed grass roots political campaigns ever to occur in Australia. The protestors’ blockade began in December 1982. It was organised by the Tasmanian Wilderness Society under the directorship of Bob Brown. A total of 1272 arrests were made including the high profile arrest of internationally renowned British botanist, Professor David Bellamy. Footage of his arrest was shown in 32 countries around the world.

When renowned singer/songwriter, Shane Howard of the band Goanna reflects back on the Tasmanian dams controversy and the protestors’ blockade, which was encapsulated in his evocative song “Let the Franklin Flow”, it is the people who he remembers. “I was deeply moved by the commitment of the young people” he recalls. He was also very disturbed by the experience of going to Warners Landing and seeing the bulldozers demolish ancient trees in the pristine, virgin rainforest. But he did not want to isolate people; he was painfully aware that the Dams issue had divided a state, communities and many families. He wanted to say, “Stop and look at this beauty. Is the wealth to be gained worth the wealth you will lose?”

The impending federal election became another focal point as the conservation movement turned its attention from state to national level. The Tasmanian Dams became a central election issue. Prime Minister Malcolm Fraser, who had confirmed the nomination of the area for World Heritage listing, wound up his campaign on 3 March 1982 in Devonport, telling a cheering crowd of pro dammers that the dam was Tasmanian issue and that as prime minister he would not interfere. The Labor Party, led by Bob Hawke, campaigned strongly against the dam throughout the campaign and in Tasmania.

The majority of Tasmanian voters made it clear that they were in favour of the construction of the dam, as Tasmania defied the national trend of a 5% swing to Labor at the federal election of 1983 and registered a 3% swing to Liberal.

Amongst conservationists, it was euphoria that greeted the Hawke victory in March 1983 and an assumption that the wilderness had been saved. Shane Howard recalls the incredible disappointment that accompanied the Gray Government’s stoic persistence in constructing the dam despite Labor’s win federally. “People lost heart and assumed things would always remain the same.” They did not realise that the battle was simply shifting to a different battleground.

The case was the circuit breaker in what had become an impasse in the power balance between the state and federal governments. The Court heard the Commonwealth’s application to restrain further work on the dam and Tasmania’s application for declarations that the World Heritage (Western Tasmanian Wilderness) Regulations 1983 and the World Heritage Properties Conservation Act 1983 were invalid. The majority accepted the main Commonwealth arguments and held that the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage which established “a World Heritage List” imposed a legal obligation on Australia. The majority effectively expanded the scope of the external affairs power. The judgments examined many other issues including the scope of the corporations power and the races power in relation to the possibility of flooding caves which might have contained irreplaceable Aboriginal art and relics.

Mr Keon-Cohen recalls sitting at the bar table in the High Court registry in Brisbane on 1 July 1983 when the High Court handed down its historic decision. TheCourt wasdivided 4:3 in favour of the Commonwealth Government. He was sitting with Sue Kenny (now a justice of the Federal Court) at the packed Banco Court. They sat at the bar table drawing very complicated snakes and ladders type charts – 7 different columns for each of the separate judgments – charting the decision as it was being given. The decision was turned around in three weeks, which is a remarkably short time given the complexity of the matters before the court and the enduring significance of the case in legal terms.

Shane Howard was in Tasmania, on the Gordon River, earlier this year with his family. He recalled the sleepy village that was Strachan in the 1970s and was amazed at its transformation from that place to the thriving tourist centre that now exists. “Protestors were regarded as rabid, mad greenies with no economic credentials, but the perspective that 25 years gives is that the economic arguments of the anti dammers was actually quite sane” The preservation of the wilderness has had its own quantifiable economic benefits in terms of the tourism industry.

Howard went back to his diary of 1983. On the day that the judgment was handed down the entry in his diary read, “High Court decision this morning. Hawke Government has the authority to stop the dam. Days of Hope....”

Keon-Cohen regards the Tasmanian Dams case as a forerunner to the High Court commencing a new leadership role in the development of Australian law. In 1975, the Australia Acts were passed removing the Privy Council as final Court of review and removing the shackles to the “old country”. The subsequent amendment to the Constitution that required judges to retire at the age of 70 allowed for the retirement of Gibbs CJ. The High Court then took on a more reformist role under the guidance of Mason CJ. These developments were absolutely fundamental to that leadership role and the maturing of the workings of Australian law."