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Thursday, 26 March 1987
Page: 1357


Senator CRICHTON-BROWNE(10.11) —The Lemonthyme and Southern Forests (Commission of Inquiry) Bill is but a cynical exercise in political opportunism. Its pedigree is that it was sired by broken agreements out of political expediency. As the Senate will be aware, Tasmania's forest industries went through a long and searching investigation as part of the environmental impact study required by the Commonwealth prior to the renewal of Tasmania's three woodchip export licences. Because of the integrated nature of the State's forest based industries, the EIS considered far more than just the export of woodchips. All aspects of forest management and the forest resources were canvassed in the EIS and in the public comment that formed part of that process.

At the Hawke Government's insistence, considerable attention was paid to the environmental and resource values of a large part of the State forest which has been entered on the Register of the National Estate. After more than two years of research and public debate, the Hawke Government decided in December of 1985 that logging should be allowed in National Estate forests, provided that the particular values of these areas were taken into account in management plans. After some months of negotiation, the Tasmanian and Commonwealth governments concluded an agreement on the consultative process which would be applied to planning in National Estate forests. That formal agreement was signed `for and on behalf of the Commonwealth' by the Minister for Primary Industry, Mr John Kerin, on 12 June 1986.

One of the reasons it took six months to reach agreement was the Tasmanian Government's insistence that the Commonwealth had no right and no power to dictate what logging operations should or should not take place unless the wood was to be exported. Clearly, that was due to the fact that the Commonwealth Government had power-perverted, as it might be, in its use and application-under the Constitution to deny export licences. In the end the State agreed to consult the Commonwealth even on domestic operations. But clause 25 of that agreement states that the Minister for Primary Industry acknowledged that it would be for the State, and the State alone, to decide the extent to which it would implement Commonwealth views on the protection of National Estate values, in relation to domestic operations. Since the extraordinary and ill-advised intervention by the Prime Minister (Mr Hawke) in November, the Tasmanian Government has declared that logging operations in the Lemonthyme State Forest and south of Farmhouse Creek are for domestic purposes. This Bill is therefore a complete, absolute and utter abrogation of a formal signed agreement which was concluded less than nine months ago. In one breath the Government is saying `We cannot tell you what to do except in relation to exports', and in the next breath it introduces legislation to take over vast areas of State crown land in the sovereign State of Tasmania.


Senator Coates —What does `sovereign State' mean?


Senator CRICHTON-BROWNE —It means that it is part of the Federation, it means it is a creature of the Constitution, it means in certain circumstances it has powers unique unto itself which are not to be overridden by the Commonwealth Government. That is the purpose and the basis of the Constitution. If the Government does not like it, I challenge it to hold a referendum to see whether it can be changed. It would see the proposal ignominiously tossed out, just like all the other centralised socialist referendum proposals that have been put to the people in the past.

The turnaround and the betrayal by the Hawke Government is even more starkly demonstrated by the fact that the very operations that this Bill attempts to stop were approved specifically by the Commonwealth for export woodchip less than one year ago. No one can deny that the Hawke Government has ratted on a written agreement and done a 180-degree turnaround on its policy on Tasmanian forests. It now claims that we must have another inquiry to decide the matter once and for all and that in the meantime a vast area of Tasmania should be effectively sterilised. Why? I suppose one could understand the Government's decision to hold an inquiry if it had come across some new information that was not previously available-some new revelation or some new facts. If that is so, no one has heard what the new information is.

Indeed, one of the real mysteries of this issue is how the Prime Minister suddenly bought into it in the first place. Certainly, there is no evidence that forestry had anything to do with the Prime Minister's conversion to a born again greenie. The obvious answer lies in the public opinion polls. The same applies to his about-face on Kakadu National Park. The Government clearly has double-checked the polling and has come to the conclusion that there are votes to be had in Victoria and New South Wales. The decision has nothing to do with the economy of Tasmania or the concerns and cares of the people of Tasmania. It is simply a cynical exercise because the Government has come to the conclusion that 10 or 12 seats on the mainland might be affected as a result of its operations, activities and conduct in Tasmania. That is what it is all about.


Senator Boswell —It is disgusting. They have sold Australia out.


Senator Sanders —Gee, you are noisy since you had your hair cut.


Senator CRICHTON-BROWNE —Senator Sanders should not have a haircut then. It is a coincidence that Mr Hawke's so-called instruction to the Tasmanian Government to cease operations in the Jackeys Marsh area occurred on the eve of his departure on a well publicised but transparently political sightseeing trip to Kakadu National Park. He was seen at Obiri Rock, Jim Jim Falls and Twin Falls-the three or four beautiful aspects of Kakadu National Park. We did not see him photographed--


Senator Sanders —Madam Acting Deputy President, I raise a point of order. I ask you to consider what bearing this has on the Bill that is before the Senate.


The ACTING DEPUTY PRESIDENT (Senator Giles) —I have been listening carefully. I think it has some marginal relevance. I ask Senator Crichton-Browne to make his point as quickly as possible.


Senator CRICHTON-BROWNE —Certainly it was not a coincidence that his statements on Jackeys Marsh were made without reference to the Minister for Primary Industry, who was overseas at the time, and without anybody bother-ing to check with the Department of Primary Industry on the rights and wrongs of the issue. That was not a coincidence; it was simply bad management and bad politics. It effectively placed the Prime Minister in a hole of monumental proportions. This Bill, which was opposed by the majority of the Cabinet, is intended to be the Prime Minister's way out of that hole. In recent times we have heard a great deal from the Prime Minister and others concerning the suggestion by the Premier of Tasmania that the constitutional convention that State parliaments merely rubber stamp the nominations of political parties in filling casual vacancies may be followed in respect of the replacement of Senator Grimes.


Senator Coates —Do you want another debate about that?


Senator CRICHTON-BROWNE —I am happy to argue that matter at any time, but the truth is that it is put to us that State governments simply should rubber-stamp because that is the convention. I shall not go into that matter at the moment because time will not allow me to do so, nor does the subject of this debate, but it is worth noting that the Bill now before the Senate does much greater harm to constitutional conventions than that which has been talked about by Premier Gray in respect of the replacement for Senator Grimes. The Bill attempts to compel a State government to provide information to a Federal inquiry. So far as I am able to determine, that has never been attempted before. It goes to the very heart of the traditional relationship between the States and the Commonwealth and the Australian system of federation. In addition, it claims a very tenuous external relations power effectively to take over control of vast tracts of Tasmania, not because they have world heritage value, but simply because it might be concluded at some time in the future that they may have. When the World Heritage Properties Conservation Act was introduced in the Parliament to stop the proposed Gordon-below-Franklin dam, the Prime Minister told the Parliament that that was a `one-off' situation because of the extraordinary importance of Tasmania's world heritage areas. Now, to get himself out of a hole, he is not only doing it again, but is extending the precedent of Federal land grabs to include areas that are not recorded on the United Nations Educational, Scientific and Cultural Organisation's World Heritage List. The whole issue is undoubtedly tainted with the mark of the Prime Minister's cynical manoeuvrings and his double standards. If his comments about constitutional conventions are to be taken seriously, this Bill should quite properly be withdrawn immediately.

My final point on the matter, which yet again amply illustrates the political cynicism and double standards of this Government on environmental and constitutional issues is that most Australians will recall attempts by the conservation movement to stop the construction of a road through the rainforest at Daintree in Queensland. At the time every pressure was put on the Hawke Government to intervene to stop the proposed road and to protect the area. To its credit, the Government chose not to be pressured in any circumstances. The reason for that decision not to intervene was set out by the Minister for Arts, Heritage and Environment (Mr Cohen) in a speech on 13 September 1984 to the National Conference on Conservation and the Economy. Mr Cohen said:

We will not act unilaterally to nominate an area for World Heritage listing.

It now appears that this Government will only recognise States where it holds Federal seats. The Prime Minister obviously has written off the 440,000 Australians who live in Tasmania. He said that the Government would stick to its commitment made at the time the World Heritage Properties Conservation Act was debated and that it would only use the Act as a last resort. How can this Bill be a last resort when the Government already has a written agreement with the Tasmanian Government concerning the management of these areas-an agreement which the Hawke Government itself has now abrogated? Nothing has changed since the signing of that agreement in June of last year, or the decision to permit the export of woodchips from National Estate forests in December 1985. The only reason why this Bill and the consequent dislocation and uncertainty are being thrust on the Tasmanian people is that it suits the Prime Minister's political purposes to go back on his word and to chase the ever-elusive conservation vote. So much for this Government's government by consensus. The Hawke Government is now into cynical government by opinion poll.

In my view this legislation is a clear, precise, unambiguous commentary upon the Australian Labor Party and its attitude towards the relative rights and responsibilities of the Australian States, the state of Australia's federation and the Commonwealth Government. It is an unequivocal statement of the ALP's position on the federal system and the ultimate role that it sees for the sovereign States. The Federal Government is seeking, by the most brutal and perverse application of the Australian Constitution, to strip the individual States of all their real power.


Senator Button —Don't be nasty, Senator; that is churlish and uncharitable from a person like you.


Senator CRICHTON-BROWNE —It may be, Senator Button. Uncharacteristic as it is coming from me, that does not detract from the fact that it is the truth.


Senator Coates —Let's see what the High Court says.


Senator CRICHTON-BROWNE —From time to time the High Court tends to change its view, depending on the appointments to it and which governments make them. I notice a change in attitude towards the Income Tax Assessment Act 1936. I notice that there has been a change of view about the Constitution in respect of the external affairs power, the corporations power and the implied national power.


Senator Button —The High Court used to license crooks under taxation. That is right; I agree with that.


Senator CRICHTON-BROWNE —Is Senator Button suggesting that judges of the High Court have licensed crooks in the past? Is that what he is saying?


Senator Button —Yes, decisions of the High Court have.


Senator CRICHTON-BROWNE —With respect, Senator Button, that is a reflection on the author of those words, not the judges of the High Court. I am very surprised to hear you say that.


Senator Coates —You won't accept the result?


Senator CRICHTON-BROWNE —I will accept any decision of the High Court.


Senator Coates —You will accept the result of this inquiry?


Senator CRICHTON-BROWNE —I have no choice but to accept what the High Court ultimately finds-unlike Senator Button, who if he does not agree with the High Court condemns in a very personal way the individual judges on it. This legislation--


Senator Sanders —The legislation, yes; let us talk about the legislation.


Senator CRICHTON-BROWNE —What would the honourable senator like to know about the legislation? Let us say this for a start: It is a naked grab by a blindly obsessed Government seeking to snatch away from the States the fundamental right to make fundamental decisions affecting the people of those States. We now have a Government which takes the view that all wisdom resides in Canberra; all knowledge, all truth, all understanding can be found in the Cabinet room of the Federal Government, and the States should simply be mendicants with no competence, no capacity and no ability to know what is good for their constituents. Only Senator Button and his colleagues know what is good for the people of Australia-not the Wran Government, not the Gray Government, not the Burke Government, not the Bjelke-Petersen Government; only the Hawke Government knows what is good for Australia. It will make sure that Australians get what is good for them, and it has ways of making them enjoy it.


Senator Button —I thought your complaint was that they didn't enjoy it.


Senator CRICHTON-BROWNE —I am saying that the Prime Minister has ways of ensuring that they enjoy it. Perhaps it is a grimace and not a smile I see. It is my view that matters such as conservation should be arrived at by co-operative federalism resulting from a spirit of good will, understanding and co-operation.


Senator Sanders —How can you say that? The Government got no good will at all from Robin Gray.


Senator CRICHTON-BROWNE —Yes, an agreement was signed between the Federal Government and the State Government. What happened to that? The Prime Minister looked at the polls and suddenly realised that there was a green vote to be had in New South Wales and Victoria. To hell with the 440,000 constituents in Tasmania; he was after mainland seats. So he ripped up the agreement. So much for the contribution by the Federal Government to government by consensus. When Hawke talks about government by consensus he means government by him, not by good will and co-operation from others.

I am reminded that the first time we saw this Government in full flight on matters touching on conservation was the introduction of the National Parks and Wildlife Conservation Act 1975 which clearly relied upon the external powers, the implied national powers, the corporations powers and the commerce and trade powers in the Constitution. Our founding fathers never intended that any of these powers should be cynically used, distorted and perverted in the way they are in respect of matters relating to conservation. Of course, one can safely assume that on this occasion the government will be relying very heavily on the external affairs power. Perhaps it would be worth quoting something that Alfred Deakin said. In many respects Senator Button might share his philosophic approach.


Senator Button —You know, it is said that the worst thing that can happen to a good cause is that some people should embrace it. Alfred Deakin was a good cause and you are about to embrace it, I gather.


Senator CRICHTON-BROWNE —I am not about to embrace it. I am simply about to quote a reflection of his cause and ask Senator Button to embrace it. In the constitutional debates prior to Federation, Alfred Deakin said:

From the first day Federation is consummated-Heaven hasten that day-

it is not a view, I suspect, that will probably be now shared-

the people will divide themselves into two parties.

He was almost right. He continued:

The instant Federation is accomplished, the two Houses will be elected on that basis. State rights and State interests, I venture to say, will never be mentioned because they will never be imperilled. Both sides, in order to secure support, will make the first plank of their platform the maintenance and defence of State interests.

Poor old Alfred Deakin would be rolling over in his grave if he could see this socialist lot doing what they are doing, prostituting as they are the Constitution of which he was one of the principal architects, moving from a position of co-operative federalism, of having the States as an intrinsic part of the Constitution, major creatures--


Senator Button —Might I interrupt the honourable senator only to enlighten the debate. I think you will find that Alfred Deakin later on said that the Senate would never work as a States House. It would divide like every other political forum in Australia into party political interests.


Senator CRICHTON-BROWNE —Alfred Deakin certainly did say that. But Alfred Deakin did not know that there was going to be a political party, a creature which does not allow its individual senators from the individual States to cross the floor to reflect the views of their States. In my case, the political party to which I belong allows me to cross the floor any time I like, as I have done, to reflect the views of my party. But in the event that somebody stands trembling and dares to venture gamely across the floor to this side of the chamber, it is axiomatic that that person is expelled from that party. What happened to Senator Georges, a man of integrity, a man of responsibility and a man of compassion and concern? I heard him described as a scab by one of his colleagues because he had the courage to speak against his party in the interests of what he believed to be right.


Senator Button —How did Andrew Peacock get on as a result of making the phone call? What happened to him.


Senator CRICHTON-BROWNE —Andrew Peacock is just having a rest from the heavy duties as shadow Minister for Foreign Affairs.


The ACTING DEPUTY PRESIDENT (Senator Giles) —I ask Senator Crichton-Browne to return to the Bill before the Senate.


Senator CRICHTON-BROWNE —Thank you, Madam Acting Deputy President. So we see the place that was intended for the States in the Constitution that was drawn up by our founding fathers.

It ought to be remembered that the smaller or less populous States entered into the Constitution on one basis and one basis alone, and that was that each State have an equal voice in this chamber. If Western Australia, for instance, had known what was going to happen to it, that State would never have entered the Federation. I am only sorry that it did not have more foresight.


Senator Coates —That is right. We are sorry too-you would not be here.


Senator Button —You would not be here.


Senator CRICHTON-BROWNE —The honourable senators are quite right-I would be doing something constructive. Of course, without question, in 1897 conservation would hardly have been high in the minds of the founding fathers. It is hardly likely that it would have been high on the agenda of issues that had to be incorporated and written into the Constitution. We can be quite certain that when the founding fathers were looking into the question of external affairs and the powers contained in section 51 (xxix), it was never their intention for a moment that one day that section would be used to prevent logging somewhere in some State. Yet we now find that the Constitution has been so perverted, so corrupted, that this obscure activity has been stopped, suspended for the time being, because of the threat of the use of that provision.

One might refer to the corporations power. As Senator Button well knows, it was never intended that the corporations power was to be applied to prevent logging in South West Tasmania or anywhere else. It was meant particularly to protect the community from the failure of companies which were involved particularly in finance and in land, and further to provide uniformity of regulation, particularly for foreign companies. The matter of banks had already been dealt with, as we know, so they were not included. But it was certainly not intended that the legislation be discriminatory or selective in the activity and operations of individual companies. Least of all was it intended to be used by the Commonwealth for ulterior reasons, such as to prevent companies or corporations under- taking activities in South West Tasmania.

I remind honourable senators of what Mr Symon said in the Constitutional Convention debate in 1897. He asked: Why not just leave the wording as `corporation'? Alfred Deakin responded by saying that they wanted to include all limited companies, because the class of companies he was speaking of dealt with lands and deposits, and they require careful regulation, especially the land and finance companies which had caused such litigation in the past. It was Barton who added that the reason for making the difference was that it had been seen that the word `corporations' as it existed covered munici-pal corporations, and so the words were changed to `trading or financial corporations'. So we see again that the corporations power was never intended to be used in the way in which it has been used by this Government, nor to have the colourful interpretation that presumably will be placed upon it by the High Court of Australia.

So we see a situation where the powers are, in my view, being quite improperly abused. Of one thing we can be absolutely certain: The external affairs power was never intended to implement domestic legislation and to apply in domestic circumstances. It was Chief Justice Gibbs, commenting in the Koowarta case, who observed that if that view was correct-he was talking about the view that the external affairs power could be used for any domestic legislation and the power existing simply because an external agreement had been signed:

The Executive could, by making an agreement, formal or informal, with another country, arrogate to the Parliament power to make laws on any subject whatsoever. It could, for example, by making an appropriate treaty, obtain for the Parliament powers to control education, to regulate the use of land, to fix the conditions of trading and employment, to censure the Press or to determine the basis of criminal responsibility-it is impossible to envisage any area of power which could not become the subject of Commonwealth legislation if the Commonwealth became a party to an appropriate international agreement. In other words, if section 51 (29) empowers the Parliament to legislate to give effect to every international agreement the Executive may choose to make, the Commonwealth would be able to acquire unlimited legislative power.

That is the effect of this interpretation of the external affairs powers. Senator Button knows that, and those on his side know it. He knows that he is using a section of the Constitution for purposes for which it was never intended. It is my view that the Government ought to have the courage, the conviction and the commitment to go to the people of Australia and have a referendum on the Constitution to allow the Government to do overtly the sorts of things that it wants to do covertly, instead of using its powers in a very sinister and improper way.

The truth is that the Government knows that if it puts a proposal to the public to reduce the power of the States in the way it intends using the external affairs powers that referendum will never get through people in the States. So those opposite rely on the High Court to use a rather spirited, colourful and, I might say, quaint interpretation to allow them to override the rights and responsibilities of the States in a thoroughly improper way. There is no better example of that than what they are doing at the present time. I find it distressing in a very serious sense that the Government takes the view that all wisdom resides in Canberra and that States are not in a position to make judgments as to what is right and what is wrong or to reflect and articulate the views and attitudes of the people of the States. I find it regrettable that it is using the Constitution the way it is.


The ACTING DEPUTY PRESIDENT (Senator Giles) —Order! The honourable senator's time has expired.