Turning Points in the High Court: Remembering the Koowarta and Tasmanian Dam Cases

Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).

By Dr Ann Genovese

2012 and 2013 mark the respective 30th anniversaries of the High Court’s decisions in Koowarta v Bjelke-Petersen [1982] HCA 27 and in Commonwealth v Tasmania [1983] HCA 21 (the Tasmanian Dam case).

Each of these cases is commonly understood to represent a turning point in Australia’s legal and political history: a shift to a different form of political engagement on complex questions about race, and the environment; and a shift in what those engagements could signify, nationally, and internationally. Cumulatively, the cases are also understood as marking a decisive jurisprudential turn, a consideration of a different engagement by the High Court of Australia with both international law and the politics of federal constitutionalism.

After 30 years, it is timely to reflect on the ongoing significance, in political and legal terms, of these two ground-breaking cases; yet also to review the complex ways in which the cases are remembered or understood as turning points. Two symposia hosted at the Melbourne Law School commemorated these anniversaries and the proceedings will be published in two special issues of the Griffith Law Review.

These symposia placed the cases into conversation with each other for the first time, opening new ways of approaching and writing about law’s authority and narratives as constitutive of an evolving Australian national identity into the 21st century.

The legal themes we explored in these symposia, and which will appear in the forthcoming issues of GLR, relate to the interaction of constitutional and international law, the growth of federal power, constitutional meaning and constitutional change and the impact of those considerations on indigenous Australians and the formation of Australian law and jurisprudence in our own time as a consequence of these developments 30 years ago.

The symposia brought together jurists, lawyers, judges, advocates, historians, activists and combined insights from legal, political, historical, and autobiographical perspectives. We also explored dimensions of those themes from other perspectives, such as how race and environment operate in relation to each other; the nature of political activism in Australia and transnationally, in the 1970s and 1980s; and how and to what extent that activism turned political questions into questions that law had to answer. We also considered how the local contexts of Tasmania and Queensland, with specific and different cultural and political histories of state authority, race and the environment, interrupt the expected historical and legal narratives of what the cases signify.

By reflecting on the Koowarta and Tasmanian Dam cases separately, we sought to capture memories of how and why these decisions assumed importance in their own time, as well as to offer counter memorialising about what the cases as legal landmarks may forget. We aimed to commemorate Koowarta and Dams by rendering complex their continued significance for Australian law and politics.

Ann Genovese is a Senior Lecturer at Melbourne Law School

AGLC3 Citation: Ann Genovese, ‘Turning Points in the High Court: Remembering the Koowarta and Tasmanian Dam Cases’ on Opinions on High (1 August 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/08/01/genovese-turning-points-koowarta-tasmanian-dam>.

The ‘Turning Points: Remembering Koowarta v Bjelke-Petersen (1982) 153 CLR 16’ was held on Friday 11 May 2012. The ‘Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1’ symposium was held on 28 June 2013. Both symposia were convened by Dr Ann Genovese at Melbourne Law School and were co-hosted by the Institute for International Law and the Humanities (IILAH), the Centre for Comparative Constitutional Studies (CCCS), and the Centre for Resources Energy and Environmental Law (CREEL).

http://blogs.unimelb.edu.au/opinionsonhigh/2013/08/01/

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About Ann Genovese

Ann Genovese is a Senior Lecturer and Programme Director of the Australian Legal Histories research programme at the Institute for International Law and the Humanities at Melbourne Law School. Ann is an interdisciplinary scholar with degrees in both law and history, and her PhD in History, The Battered Body (1998) focused on the interrelationships between these disciplines. Her research since that time has continued to interrogate in different ways the history and theory of the relationship between Australian law, the State and political culture.