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Friday, 8 May 1970


Mr FAIRBAIRN (Farrer) - by leave -I am glad that the Minister for National Development (Mr Swartz) has today, in accordance with the undertaking of the Prime Minister (Mr Gorton) of 3 weeks ago, tabled certain documents relating to Commonwealth-State negotiations on the proposed off-shore minerals legislation. I thank the Prime Minister for having made these documents available to me when I sought them from htm some weeks ago, and for having discussed the matter with me on 2 occasions. I should also like to thank the Deputy Prime Minister (Mr McEvven) for making available a considerable amount of his time to discuss this problem with me.

The 2 major documents which were tabled were the minutes of the Australian Minerals Council meetings on 3rd March 1969 and 26th September 1969. At both these meetings I represented the Commonwealth as Minister for National Development. In order to understand these minutes the House should understand the background which preceded the original meeting of 3rd March. I was authorised by Cabinet to make an offer to the States at that meeting. That offer was that the States should retain control of the mineral resources of the territorial seabed, that is, from low water mark to the 3-mile mark off-shore, while the Commonwealth legislated to take over total rights outside the 3-mile limit to the edge of the continental shelf. I made that offer. I am reducing everything to its simplest terms so as not to cause any misunderstandings. The States were not happy with this offer. They believed that the introduction of a different system in relation to off-shore minerals other than petroleum could lead to confusion in the mining industry. As a result the States came up with a counter offer that the Commonwealth should re-consider a set-up for off-shore minerals that was already operating satisfactorily, in the States' view, for off-shore petroleum. I undertook to refer this proposal back to Cabinet and also undertook that before the Commonwealth took any action there would be further consultation with the States.

Two points emerge from this. Firstly, I did not commit the Commonwealth as David Fairbairn; I committed it as the Minister for National Development, authorised and instructed by Cabinet to act as the Commonwealth's negotiator. Any commitment made within the limits of the authority I was given by the Cabinet was binding on the Cabinet and on the Government. The second point that arises from this is that the commitment was given that there would be further discussions. This commitment also was binding on the Cabinet and the Government. Thus 2 questions that must be answered arise. The first question is: Was a commitment entered into? And the second question is: If it was, was this commitment honoured? I have heard it argued that the undertaking I entered into was not legally binding on the Commonwealth. I flatly refuse to accept that argument. Has public morality in this country declined to such a degree that an agreement entered into by the Commonwealth is not binding unless it is legally enforceable? If that is the position, we have come to a pretty despicable state of affairs. Is it believed in Australia today that the word of the Commonwealth Government means nothing unless those to whom this word is given have some legal means of enforcing it? How could anyone ever trust us again if that is the position?

What is the worth of an electoral promise? The voters are not given a pledge in a legally enforceable form. They have to rely upon our honour, and if we have no honour we have nothing.

I turn to whether a commitment was made to the States by the Commonwealth. I believed that I had entered into a commitment on behalf of the Commonwealth. The official record confirms this. I ask the House to study the document entitled Commonwealth-State Meeting - Off-shore Minerals Legislation'. It is dated 26th September 1969. It flows from the meeting of 3rd March, but I am concentrating on it rather than the document of 3rd March because it is of a later date. I ask honourable members to look at page 2. This records remarks made by the Western Australian Minister for Mines and Justice, Mr Griffith. Mr Griffith, in dealing with my statement at the meeting of 3rd March, on page 2, states:

The State Ministers note that the Commonwealth proposal envisages State control of territorial waters, but the Ministers believe that a cooperative scheme extending to both territorial waters and the continental shelf and based on a pooling of legislative competence is desirable in the national interest.

This statement, of course, arose from an offer that I was authorised to make by Cabinet to the State governments. I now ask honourable members to look at page 3 of this document. I - not David Fairbairn but the Minister for National Development - accepted the proposition that there would be further discussions on this matter. The document states:

At the present moment our plans are to have a Minerals Council meeting some time in February. This would mean that we would have an opportunity of further discussions on this matter.

This is me speaking. I did not need to make it more explicit. I assumed that the State Ministers would accept me as a man of honour speaking on behalf of a government of honour. I turn to page 16. We are repeating ourselves, but politicians often repeat themselves to make things crystal clear. At the bottom of the page Mr Griffith is recorded as saying:

But if the Commonwealth would give us an assurance that we could meet soon after the election for the purpose of further discussing our difficulties, with the Commonwealth attitude not being one that it is going to take away from the States all it can as a result of the High Court predictions - if ] can call them predictions - I would feel happier about the whole thing. Because you are going to ask us to administer this, you know.

I replied to this on page 17. I drew attention to the difficulties of the timetable. Here again I was speaking as the Commonwealth negotiator. I said:

I am prepared to meet the Ministers for Mines as soon as possible after we have had an opportunity of discussing this . . .

By 'this' 1 meant the States' counter proposals. I continued: in the Cabinet but it would obviously be essential that we should have had this opportunity of some discussions and, as you know, you cannot always get an immediate decision.

I went on to say:

Perhaps we could have a meeting just before Christmas but, I don't see much chance of anything before that.

Again 1 committed the Commonwealth to prior discussions. Let me say this: 1 made that commitment within the authority conferred on me by the Prime Minister. On 30th July 1969 I wrote to the Prime Minister and said: 1 seek your guidance as to the course of action you would like me to follow. My own inclination would be to write to the State Ministers and tell them that, due to pressure of the forthcoming Budget session of Cabinet, followed by the parliamentary Budget session and the prospects of an early election, I feel unable to propose a firm date to resume these discussions in the immediate future. I will suggest that the matter be taken up at the next scheduled meeting of the Minerals Council, which is set down for February 1970. I will also reassure the States that the Commonwealth will not legislate unilaterally until there has been an opportunity to discuss fully and frankly the views which I expressed on behalf of the Commonwealth Government in my statement on March 3rd.

To this the Prime Minister replied on 18th August. He wrote:

Whilst 1 have no objections to your writing to the State Ministers in the general terms proposed in your letter, I would want to avoid, if at all possible, a situation where the Comonwealth became committed to long drawn out discussions for consultations with the States on this matter. For this reason 1 would prefer that you eliminate from your proposed letter the suggestion that the Commonwealth will not legislate unilaterally until after the completion of full and frank discussions with the States on this matter. I think we should preserve as much room for maneouvre as possible in this matter

I ask the House to note particularly the words 'if at all possible*. I construed them - and I think any sensible man would - as a position I was to maintain only if I could.

It was not an embargo on entering into such a commitment. As it happened, the attitude of the States at the 26th September meeting made it dear that I would have to give* them a commitment to consult before legislation. I entered - as I was authorised to do - into a commitment. After all, the Prime Minister had not been opposed to my telling the States - and I quote from my letter:

I will suggest that the matter be taken up at the next scheduled meeting of the Minerals Council, which is set down for February 1970.

Let me return now to the minutes of the 26th September meeting.. As these minutes show, 1, as the Commonwealth negotiator, not only accepted the commitment for further negotiations but I agreed to the date of the meeting at which the further consultations were to take place. We were talking about December. The New South Wales Minister for Mines, Mr Fife, asked me:

Would you like us to hold ourselves available for a meeting on, say, 15th, subject to events at the Commonwealth level?

The 'events at the Commonwealth level' was obviously a reference to the coming election and the possibility of some Cabinet reorganisation. The official transcript stated: Mr Fairbairn- Yes, I think that would be best.

We had reached the stage at which we had fixed the date of a future meeting. Let us turn now to page 24. Mr Griffith said:

I have pressed you to a meeting in December and with this in mind - the possibility of the status quo arrangements being continued until the Commonwealth and the States come to a 'mutual' arrangement - and I stress the word 'mutual' - I would gladly withdraw and suggest that you call the meeting when you are ready.

Are those not the words of a man who believes - as I believed - he had entered into an agreement? I now turn to page 30. In the last 2 paragraphs Mr Griffith asked:

But under this proposed legislation who would have the legal rights within the 3-mile limit?

The honourable member for Parramatta (Mr N. H. Bowen) who was then the Commonwealth Attorney-General and who attended the meeting in that capacity, replied:

Probably a designated authority who would derive his authority in the case of up to the 3-mile limit from the State legislation and outside from the Commonwealth.

This was the basis on which we were then negotiating. We had given an undertaking that there would be further discussions. As the Commonwealth has now changed its mind and intends to seek powers not from the 3-miie limit about which the Attorney-General was then speaking but from the low water mark, surely the moral obligation to consult further becomes even heavier; or does not a government undertaking entered into by its authorised negotiator count anymore? Is this a manifestation of the irresponsibility of the permissive society at governmental level?

I now turn to pages 36 and 37. Mr Griffith was meeting the Commonwealth's convenience. He said that he realised it would be difficult for the Commonwealth to arrange a meeting on 15th December. Mr Griffith said that the States would accept a later meeting. He is recorded as doing this on page 36 and at the top of page 37. I said:

All Tight. And we would have an interim meeting as soon as we are ready to discuss this particular matter, and have a later meeting in May.

If the States cannot accept those kinds of assurances, government in this country is reaching a pretty low ebb. If the Commonwealth takes the attitude that the States have no rights because the agreement, undertaking - call it what you like - is not legally enforceable, what the Commonwealth is saying is that if the Commonwealth promises something get it written into a contract immediately, and in an enforceable form, otherwise the promise is not worth anything.

So far I have dealt with the one question which, as I have said earlier, is: 'Was a commitment entered into?' I believe the commitment was entered into. The States believe, and have stated publicly, that the commitment was entered into. The key document, the report of the 26th September meeting, makes it abundantly clear that the commitment was entered into. Please do not give me this legal claptrap. It was a commitment and the Government was morally bound to honour it whether it was legally enforceable or not.

I turn now to question 2: Was this commitment honoured? There have been suggestions not, I believe, emanating from the present Minister for National Development, that it was honoured - not in a formal conference, as the States believed it would be honoured, but in individual talks between the Minister for National Development and individual State Ministers. I will return to this. Other suggestions try to say that the commitment has been honoured because the Minister for National Development has met the State Ministers after the decision to legislate unilaterally from the low water mark had been announced by the Commonwealth. I do not think anyone would take this latter argument seriously. A meeting held after the Commonwealth had decided to go it alone completely abrogates the previous understanding and can have no influence on the Commonwealth's announced policy. I return to the question of whether adequate individual talks occurred between the Minister for National Development and the State Mines Ministers. All I can do in the present circumstances, as I was not a participant in what went on, is to draw upon the minutes of a meeting of State Mines Ministers and Attorneys-General which was held in Melbourne on Friday, 1.3 th March of this year. The minutes reveal that Mr Griffith, who acted as Chairman, went around the table. He asked each of the States to give him their version of their conversations with the Minister for National Development. Mr Griffith, referring to the minister for National Development, is on record as follows:

Mr Griffith:He visited' rae and had a general conversation with me pertaining to the mineral industry in my State. I have no recollection of him mentioning anything about the waters beyond the low water mark. I do not think in my conversation with Mr Swartz that he mentioned the 3-mile limit or the continental shelf, expressly dividing one from the other. It was a general statement.

At this meeting Mr Griffith also said that, when later he heard of the Commonwealth proposals to resolve the legal question of sovereign control of the resources of the continental shelf - and I quote:

My reaction to this statement was that I thought it would be a great pity if the Commonwealth simply moved into the field of legislating in view of the undertakings which had been given us that we would have further consultation with the Commonwealth before they did legislate.

MrGriffith went on:

When I found out that the Commonwealth intended' to legislate not only in respect of the continental shelf but also to the low water mark. . .

The minutes tend to confirm what is already publicly known which is that Mr Griffith found out when he received a telegram followed by a letter from the Minister for National Development just before the Governor-General's Speech. Mr Griffith continued:

I was quite horrified to think that matters had gone this far, and 1 thought this was an abrogation of the understanding that we had wilh the previous Minister

Mr Fife,Minister for Mines in New South Wales was even more definite. The minutes report him as saying:

The Minister for National Development did call on me at about the same time as he made calls on other Ministers for Mines throughout Australia, but in our discussion this matter did not arise, and so there has been no discussion between the Minister for National Development and myself on this particular issue.

I am sorry to delay the House like this, but I feel that this matter of the Government honouring its commitments is of public concern, and that when a government gives its word that word must be honoured. However, I will be as brief as I can. Mr Balfour, the Minister for Mines in Victoria, was absent from his State when the Minister for National Development was in Victoria. The minutes report Mr Balfour as saying:

I understand that the matter of off-shore minerals was not mentioned and the main discussions which took place revolved around nuclear energy and power stations.

Dr Delamothe,the Acting Minister for Mines and Attorney-General in Queensland was unsure about whether the Minister for National Development had seen Mr Camm, the Queensland Minister for Mines, before Mr Camm went abroad. But Dr Delamothe drew the attention of the meeting to a telegram sent by the Queensland Government after 2nd March. That telegram stated:

Such proposal-

That is, for the Commonwealth to take powers from the low water mark:

.   . would negate the firm understanding by State Ministers at their last meeting that there would be a further meeting or meetings before legislation.

The South Australian Minister for Mines, Mr de Garis had this to say:

Yes, 1 had a visit from Mr Swartz. The question of off-shore minerals did not arise in the discussions until 1 raised it myself with him, and there was absolutely no doubt in my mind from that interview that the Commonwealth would legislate in relation to off-shore minerals from the low water mark.

The Tasmanian Minister for Mines. Mr Bessell, was absent from Tasmania when the Minister for National Development visited thai State. The minutes report Mr Bessell as saying:

I understand (hat if Mr Swartz discussed this matter wilh anybody, it would bc with the Premier. Mr Be thu lie, but ire h.ive no indication cither in the Mines Department or the Attorney-General's Department that any discussion look place in relation to this legislation whatsoever.

At a later stage in the minutes. Mr Fife sums up by saying:

The summary of the complaints that we have made this morning is that there has been no prior consultation.

Mr Griffithmade a remark to this effect:

Therefore it appeared thai allegations of private consultations in this matter are not correct as from the statements made around this table, he did not see us all.

But perhaps the most devastating of all statments recorded in the minutes of this meeting was made by Queensland's Dr Delamothe. He is not an Opposition backbencher trying to make political capital out of an awkward situation for the Government. He is the highly respected Deputy Leader of the Liberal Party in the Queensland Government. But he makes this claim:

There has been an arrant and. I believe, considered breach of faith on the part of the Commonwealth.

Mr Speaker,this is not a small matter. It involves the good faith of the Government and the worth of its undertakings. Please do not ask me to accept that because an agreement is legally unenforceable therefore there is not an agreement. What kind of government would rely upon that argument? How can government function honourably and decently on that basis? It seems to me that the Government has acted in the last few months as though it had a clean slate in this matter, whereas in reality 1 do not believe anyone who goes through the records and minutes could imagine for a moment that that is the case. I think the House will agree that the documents I have quoted establish two things: Firstly, the Commonwealth entered into an agreement and, secondly, that agreement has not been honoured, or should I say more accurately it has been dishonoured. It is quite wrong to say that the States had rejected the Commonwealth proposal. They have certainly not rejected it; all they had done was to suggest an alternative. They believed negotiations and discussions were still under way. After all, it took 3 years before agreement was reached on the petroleum offshore legislation. We had been negotiating on this matter for only 6 months. If there has been excessive delay in resolving this matter, the Commonwealth has probably been just as culpable as the States. It is my belief that the honouring of Government undertakings is essential, and that if this is to be described as old-fashioned morality all 1 can say is that the sooner we revert to a bit of old-fashioned morality the better it will be for Australia and for the governed as well as for those who do the governing.







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