EXTERNAL AFFAIRS AND FEDERALISM IN THE TASMANIAN DAM CASE

Abstract

As a result of Commonwealth v. Tasmania (the Tasmanian Dam case), the broad view of the Commonwealth's legislative competence to implement treaties under the external affairs power in s. 51(29) of the Constitution has been established. The members of the majority founded their argument on canons of constitutional interpretation deriving from the decision in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (The Engineers case). In their attempt to justify a more restrictive view of s. 51(29), the minority referred to general reasoning and implications arising from their conception of the federal nature of the Constitution.What this article offers is a view of the merits of the competing approaches — federal considerations contra Engineers principles — advanced with respect to the meaning of s.51(29)5.