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Focus question 4: How are disputes between State and Federal governments resolved?

Teaching and learning activities

Activity 1: Anti the anti-dammers ESL Activity 1
Activity 2: Interview with pro-dammers ESL Activity 2
Activity 3: The Constitution and state and federal governments ESL Activity 3
Activity 4: The High Court ESL Activity 4
Activity 5: Understanding arguments for and against the High Court decision ESL Activity 5
Unit assessment task ESL Assessment task
Assessment criteria  

Introduction

For Source 1 refer to page 195 of Commonwealth of Australia 1998, Discovering Democracy Middle Secondary Units, Curriculum Corporation, Melbourne.

Activity 1: Anti the anti-dammers

1a Which group do you think wrote the slogan?

1b What is its purpose - what does the writer want to achieve?

1c What methods is the writer using to achieve the purpose?

1d What picture does the slogan paint about the anti-dam protesters?

1e The slogan mentions 'anti-Tasmania Society' and 'mainlanders'. Why is this distinction made?

1f How would you describe the feeling or mood of this piece of writing? Why might the writer have felt this way?

For Source 2 refer to page 196 of Commonwealth of Australia 1998, Discovering Democracy Middle Secondary Units, Curriculum Corporation, Melbourne.

Source 3

Queenstown is the home of most of the workers of the now silent Gordon-below-Franklin dam site ... [Mr B's] reaction to the fact that a High Court decision had removed, at least temporarily, his livelihood, was one of anger. 'We will fight,' he said. 'We will keep on working and the greenies will have to send in an army to move us.'...

Early yesterday representatives of the Organisation for Tasmanian Development, a pro-dam lobby group, arrived in Queenstown to await the decision.

The chairman of the pro-dam lobby group [Mr McCoy], said the group would now fight for guarantees of work for 10 years for the hundreds employed on the dam.

Dwyer, Peter 1983. 'The bell tolls for stricken Queenstown', © The Australian, 2 July, p.6.
Reproduced with permission of Peter Dwyer.

Activity 2: Interview with pro-dammers

Draw on your knowledge of the media from Section 3 of this unit to complete this task.

Situation

Mr L (Source 2), having written his letter to the paper, is contacted by two television stations - one in Hobart, the other on the mainland. He is given a golden opportunity to present his point of view to audiences in his home State and on the mainland.

Mr B's (Source 3) comments also interest the television stations and he is invited to be interviewed with Mr L.

2a Divide the class in two. One half is to present interviews for the Hobart television station to be broadcast to Tasmanian viewers. The other half is to present interviews for the Melbourne television station to be broadcast nation-wide. The Melbourne journalist puts a national 'spin' on the interview, and takes a viewpoint that protection of the wilderness area will be good for the nation.

2b In groups of three, one of you should take the role of the television journalist and the others take the roles of Mr L and Mr B. Write a script for a 1-minute interview. Before beginning your script, work out the main message that Mr L and Mr B would want to give to Tasmanian audiences who would largely agree with their points of view and what main message they would want to give to mainland audiences who would largely not agree with their points of view.

2c Present your 'live' broadcast to your class.

2d As a class, discuss any conclusions you can draw from this role-play about the differences in how Tasmanians and mainlanders may have viewed the dispute.

Tasmania and the Commonwealth lock horns

The dams case was a dramatic and emotional one. On one side the desire of many Australians to ensure the preservation of rivers and wilderness areas with rainforests, old Huon pines and an Aboriginal archaeological site. On the other was the right of a government to encourage industrial and business development, and the provision of new jobs for the people of that State.

As the dams case moved from being a Tasmanian dispute to a national and international issue, the arguments changed too. The issue became no longer just the environment versus development, but also whether a State had control over its own territory and the power to provide for the economic future of its citizens, or whether the Commonwealth did.

You have seen that when the Labor Government came to power in 1983, it acted on its election promise to stop the dam by passing a law through parliament - the World Heritage Properties Conservation Act (1983).

This law gave the Federal Government control over all World Heritage listed areas. The approval of a Commonwealth Minister would be necessary for work in a World Heritage area - and permission for a dam in south-west Tasmania would not be given!

You have also seen that the Tasmanian Liberal Government came to power firmly promising to proceed with the dam and that opinion polls taken in late 1982 showed that 69 per cent of Tasmanians approved the building of the dam.

With an elected Federal Government committed to stopping the building of the dam and an elected State Government committed to building it, what was to be done?

The Tasmanian Government continued work on the dam. At one point Premier Robin Gray threatened to secede from the Commonwealth - to make Tasmania a separate country.

The federal government took the Tasmanian Government to the High Court to have the Hydro-Electric Commission workers ordered from the site.

The Tasmanian Government challenged the Federal Government's World Heritage Properties Conservation Act, saying that it did not have the constitutional power to intervene in a state matter.

Australia: A federation of states

Australia is a federation of states. Before the States agreed to join together, or federate, and become one country in 1901, Australia was six separate colonies, like six different countries, each with their own laws and parliaments.

A federation is a joining together of states which agree to retain the power to make local laws about some things, and to give power to a federal government to make laws about other things which affect the nation as a whole, like defence.

In some federations like Australia, the powers of the federal government are listed and all the rest remain with the states.

The Australian Constitution came into force at the time of Federation in 1901. It makes no mention, of course, of many of the aspects of Australian life which have become of great interest to both governments and citizens since then. An obvious example is the environment. In 1901, the notion that environments were fragile and finite, and may need protection through legislation, was understood by very few people, if at all. Since the environment was not listed as a commonwealth power, it was left as a state power.

One of the law-making powers given to the Commonwealth at the time of Federation, was power over external affairs. This means the power to pass laws to implement international treaties entered into by the Government.

Activity 3: The Constitution and State and Federal governments

3a Write an explanation of the following in your own words:

  • a federation of states
  • how power is divided between state and federal governments
  • what the Australian Constitution is.

3b As a class create a list of some examples of state and federal areas of law-making. Create another list of some examples of where power is shared between state and federal governments.

3c Download Sections 51 and 52 of the Constitution and check how accurate your class list is.

3d Why might the power of the Commonwealth to make laws about external affairs have been important in the Franklin dam case?

Resolving disputes between State and Federal governments

The makers of Australia's Constitution foresaw that there were likely to be disputes amongst the various governments over powers and areas of responsibility.

The High Court was established to resolve disputes that involve interpreting the Constitution.

When there is a dispute about which government has power in a particular situation, the Commonwealth or State government can appeal to the High Court. The High Court decides what the words in the Constitution mean, and makes a final decision.

There are seven judges on the High Court appointed by the Commonwealth Government. There is no requirement that there be a judge from each State.

The role of the High Court in Constitutional disputes

Here are what two of the founding fathers of the Constitution saw as one of the roles of the High Court:

[The High Court might have to decide] a question of validity of a law which may affect ... the interests of a state and the Commonwealth, and may at any time become a matter of heated controversy between a state and the Commonwealth.

O'Connor, R 1898, Federal Convention Debates, vol 1, p 356.

[The role of the court is to] decide between the states and the federation and upon encroachments by the federation upon the states.

Higgins, E 1897, Federal Convention Debates, vol 1, p 953.

Activity 4: The High Court

4a In your own words describe the role of the High Court in resolving disputes between state and federal governments.

The High Court and the Franklin dam case

In the Franklin dam case, the Tasmanian Government asked the High Court if the Constitution gave the Federal Government the right to pass a law which would affect the way the State ran its affairs.

In other words, was the law passed by the Federal Government valid or legal according to the Constitution?

This is what Chief Justice Gibbs, one of the judges deciding on the case, said in his judgement:

No lawyer will need to be told that in these proceedings the court is not called upon to decide whether the Gordon below Franklin Scheme ought to proceed. It is not for the court to weigh the economic needs of Tasmania against the possible damage that will be caused to the archaeological sites and the wilderness area if the construction of the dam proceeds. The wisdom and expediency of the two competing courses are matters of policy for the Governments to consider, and not for the court. We are concerned with a strictly legal question - whether the Commonwealth regulations and the Commonwealth statute [law passed by parliament] are within constitutional power.

46 Australian Law Reports, 633-78.

4b Why does Chief Justice Gibbs say that it was not the job of the court to decide whether the environmental or economic arguments of the competing parties were the more important for Australia? Whose role was it?

4c If that was not the role of the High Court in this case, what was its role?

Power of governments

The High Court decided that because this case involved an external agreement (World Heritage listing with UNESCO), the Federal Government could indeed pass such laws. It was a narrow victory for the Federal Government with four judges deciding the federal government did have the power and three judges deciding that they did not have the power to make that law.

This was the end of the matter, because the High Court has the final say in interpreting the meaning and intention of the Constitution.

But it was not the end of the debate about the role of the Federal and State governments and, with this decision, a new argument arose about the role of the High Court.

The power of the Commonwealth Government following the Franklin dam case had been shown to be greater than it had been thought by many experts, and the role of the state governments correspondingly less.

4d What was the importance of World Heritage listing in the High Court's decision?

Arguments against the High Court decision

Source 1

By narrowest or margins, four judges from a Bench of seven have wrought [made] the most fundamental change to the Australian Constitution since 1901 ... The delicate balance of powers between the Commonwealth and the states ... has been fundamentally changed for all time.

The Mercury, 4/7/1983.
Davies Brothers The Mercury.

Source 2

Four judges out of seven have brought about a massive change to our Constitution. A group of men - appointed, not elected - has radically changed the principles whereby our country is governed without the people as a whole being given any voice whatsoever.

'The Constitution belongs to the people!' © The Australian, 7/7/1983.

Source 3

There is almost no area of life which under modern conditions may not be the subject of an international agreement, and therefore the possible subject of commonwealth legislative power ... The division of powers between the Commonwealth and the States which the constitution effects could be rendered quite meaningless ...

Chief Justice Gibbs, cited in Sornarajah, M (ed) 1983, The South-West Dam Dispute: The Legal and Political Issues, Law School, University of Tasmania, p 115.

Source 4

'Liberals seek poll on powers'

Federal and State conservative leaders are to be asked to seek a referendum to restore the balance of power between the Commonwealth and the States to what it was before last Friday's High Court decision on the Gordon-below-Franklin dam ...

Mr Gray said ... 'That opens up the way for the Commonwealth to intervene right across the board, in areas like resources, education, health and agriculture ...'

[The Queensland Attorney-General said] ... he wanted the referendum to define the Federal Government's external powers, [and] to make High Court appointments subject to approval by the States ...

Canberra Times, 10/7/1983.

Source 5

[Chief Justice] Gibbs ... took the narrow view that only a matter affecting a foreign nation could be considered an external affair. In relation to environmental concerns, he was of the view that only pollution which escapes from Australia and causes damage to a neighbouring state could be considered an external affair.

Sornarajah, M 1983, 'International law and the South-West dams case', in Sornarajah, M (ed) The South-West Dam Dispute: The Legal and Political Issues, Law School, University of Tasmania, p 29.

Activity 5: Understanding arguments for and against the High Court decision

5a Match the arguments presented below, with the Source item that presents that view. The same argument may be presented in more than one source. Complete Source 5 for yourself.

Source Argument
  Only four out of seven judges agreed on such an important decision.
  Because there are international agreements about almost everything these days, the Commonwealth will be able to intervene in a State's affairs in almost every area of life.
  The judges who made such a fundamental change to the way we are governed are not elected.
  The powers that the States and the Commonwealth have had since 1901 have been dramatically changed.
Source 5  

Arguments in favour of the High Court decision

There were no planes in 1901 when the Constitution was created. The world has become a global village with countries closely related though their economies, technology, trade and travel.

The Constitution must be applied to the times in which we live now, not that of 1901. The areas covered by 'external affairs' have changed with the times; the High Court decision merely recognises a change in the real world.

It is the job of the High Court to interpret the Constitution. The decisions it makes will sometimes have a major effect on the way we are governed. More recent examples of such decisions are those made by the High Court in the Mabo and Wik cases.

5b Summarise the arguments in favour of the High Court decision in your own words.

5c Discuss with the class whether you think an international treaty should have allowed the Commonwealth Government to intervene in a state matter which it could be argued was not going to affect any other countries.

Unit assessment task

You are responsible for writing a report on how well democracy in Australia operated to resolve the dispute over the damming of the Franklin River. Your question is:

Despite both the Labor and Liberal governments in Tasmania wanting to dam the Franklin, the river runs free today. How did this happen and was it in the best interests of the country?

Decide what is meant by 'best interests of the country'. You may wish to discuss this as a class first.

Your report should be 600 to 800 words long.

Stories of Democracy You can find additional information for your report on the Stories of Democracy CD ROM. The Canberra Times (9 July 1983) source and the Sydney Morning Herald (16 December 1981) source, are of particular assistance.

You should structure your report according to the four focus questions that head each section of this unit, with an additional section, a conclusion. The following structure and questions will help with your report.

Focus question 1: How can Australian citizens influence government action?

  • Who were the key groups and individuals and what were their views?
  • What were some of the actions that were taken by the interest groups in the dispute?

Focus question 2: How do governments and political parties respond to new issues?

  • Why did Tasmanian state governments support the dam?
  • How did the environmentalists and the parties' supporters affect the actions of the Liberal and Labor governments in Tasmania?
  • Why did governments at the national level oppose the dam?
  • What was the reason for the federal Labor Party deciding to oppose the building of the dam?

Focus question 3: How can Australian citizens influence the media and how does the media influence governments and political parties?

  • How was the media used to influence public opinion and government action?
  • Was the achievement of the will of the people helped by the media coverage of the event?

Focus question 4: How are disputes between the state and federal governments resolved?

  • What role did the High Court play in the resolution of the conflict between a state and the federal government?
  • What was the importance of World Heritage listing in the High Court's decision?
  • What role did the High Court decision about the World Heritage Properties Conservation Act (1983) mean for the balance of power between federal and state governments?
  • Was the decision of the High Court a fair and just decision?

Conclusion

Provide your judgement of how well the system of government worked to get things done fairly and democratically in the best interests of the country. Some questions you might consider are:

  • Should an international treaty have allowed the Commonwealth Government to intervene in a state matter?
  • Was the possible damming of the Franklin a matter of such significance to the whole world that it was more important than the views of the people in one State of a comparatively wealthy country?
  • If democracy is the expression of the will of the people, which people's will was expressed in the resolution of this dispute, and was this fair?

Assessment criteria

Your work will be assessed on:

  • how well you have described the roles of political institutions and special interest groups in making and changing laws
  • how well you have interpreted and explained the motives and actions of the various participants in the dispute
  • showing an understanding of the way conflict over a public issue was resolved
  • providing a reasoned and informed view of what is meant by the 'best interests of the country'
  • providing a reasoned and informed opinion of whether the 'best interests of the country' were served in the way that the Franklin dam dispute was resolved.

ESL activities

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