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The Tasmanian Dams Case 30 years on

By Neveshevida Balasubramanian - posted Thursday, 29 August 2013

The landmark Tasmanian Dams case celebrated its 30th anniversary in Canberra last week. This case was thought to be a triumph for human rights. International human rights can now fully be implemented in Australia, they said. Australia will soon have a bill of rights, they said. So, 30 years on, has the Tasmanian Dams case really fulfilled its promise of improving Australia's human rights protections?

The Tasmanian Dams case was a turning point for this country. The High Court of Australia held that the Federal Government had full authority to implement any international treaty that it signed on any subject matter. This was a powerful decision. It meant that Australia could fully implement international human rights treaties with no impediments from the States.

Having signed several human rights treaties, Australia has the power to establish a Bill of Rights either in legislation or within our Constitution. 30 years on from the Tasmanian Dams case, Australia has neither. We are one of the only advanced democracies in the world that do not protect fundamental human rights explicitly in our national Constitution.


Signing a treaty gives the Australian government the power to implement these obligations into legislation. For example, Australia has signed the Convention on the Elimination of All Forms of Racial Discrimination. It has turned this into Australian law through what's called the Racial Discrimination Act. This guarantees that every citizen in Australia will be treated equally and will not be subject to discrimination on the basis of race.

Or does it?

The Federal Parliament has the power to suspend any legislation including the Racial Discrimination Act whenever it likes. In fact, it has done so three times already, in order to pass legislation that is discriminatory against our Indigenous population. This has severely reduced our credibility and moral standing internationally.

The right to equality and non-discrimination is a core right in any liberal democracy. So how do we stop the Federal Government overriding human rights protections at political whim? There is only one way, and that is through entrenched Constitutional protection. The Australian people have the power to vote for amendments to change the Constitution so that it includes fundamental human rights.

Most Australians would assume that the Constitution does not allow the Federal government to pass laws that are racially discriminatory. But Australia's colonial history has meant that we still have the 'Races Power' in our Constitution. Essentially the races power allows the Federal government to pass special laws that are deemed necessary for the people of any race.

In a shocking turn of events, Australia's 1967 referendum where 90.77% of Australians voted to amend the Constitution with the intention of preventing racial discrimination against our Indigenous people has not become a reality. The real intention of voters has been ignored by some judges of the High Court. These judges have said that the Races Power gives the Federal Government unfettered power to racially discriminate against Aboriginal people and pass laws to disadvantage them. They say that the wording of the1967 amendment does not make it clear that it guarantees non-discrimination.


This tells us that so long as anything in our Constitution can be interpreted to the detriment of our own people, there is a real risk that it can be used in this way.

There is a way to change this situation. And the first step is close. All major political parties have agreed to have a referendum that recognises our Indigenous people in the Constitution. An amendment that includes a preamble recognising our Indigenous people, repeals the races power and inserts a power to pass laws only for their benefit would guarantee that the Indigenous people of Australia are given full equality and not discriminated against on the basis of race. It would also pave the way for other human rights protections to be written into our Constitution.

This is an important moment because it will mean that our Constitution will finally say that we are a country built on fundamental respect for human dignity, respect and equality for all.

Australians can finally pick up from the historic triumph that the Tasmanian Dams case represented and move forward as a country to say loudly and clearly that our fundamental human rights are too important to be left out of our national constitution.

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About the Author

Neshevida Balasubramanian is an intern at the Gilbert and Tobin Centre for Law at the University of New South Wales. The views expressed in this opinion piece are the author's own and do not necessarily represent the views of other members or affiliates of the Centre.

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