Chapter 1

The Background Politics of the Tasmanian Dam Case

The Hon Gareth Evans AC QC

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.1 Since I have forgotten nearly all the constitutional law I ever knew and used to teach 40 years ago at Melbourne University, I will leave it to others 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 Constitutional Law. I will also leave it to others to draw out the wider policy implications – for Australian federalism, the use of in domestic policy- making generally, for environmental protection and for human rights – which were really very substantial indeed but will get a comprehensive airing in other chapters in this book. What I have been asked to do is, rather, to set the scene for the other chapters by describing the background politics of the Tasmanian 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 is 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 ’s decision to build a dam on the below its junction with the had been long in the making. The State Hydro-Electric Commission (HEC) had never in its long history even conceived of a dam it did not like and developmental

1 Commonwealth v (1983) 158 CLR 1 (Tasmanian Dam Case).

11 This is a preview. Not all pages are shown.