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Friday, 15 May 1970

Mr N H Bowen (PARRAMATTA, NEW SOUTH WALES) - We have listened to the usual exaggerated language from the honourable member for Dawson (Dr Patterson). His speech, of course, was based upon the assumption that the undertaking was in fact given and he proceeded from there with his usual kind of slightly inaccurate diatribe that we have become accustomed to in this House. Of course, one would expect him to endeavour to screw the maximum political advantage for his Party out of this matter. But I think the House is entitled to a more objective debate on a matter of this kind. It is true that I was present at the meeting of Commonwealth and State Ministers on 26th September 1969 in my then capacity of Attorney-General. To this meeting the honourable member for Farrer (Mr Fairbairn) has asserted he gave an undertaking on behalf of the Commonwealth. He now claims that that undertaking has been dishonoured. I think the House is entitled to know my view, as one present at that meeting, as to whether such an undertaking was given. I want to say at once that 1 do not believe it was. Not only was it not my impression, but I have read and reread, with anxious care, the transcript record of what was said at that meeting and I cannot find anywhere in it any such undertaking.

It is. of course, clear that if a Commonwealth Minister dealing with State Ministers does give an undertaking on behalf of the Commonwealth within the scope of his portfolio, then the Government is bound to honour it, I do not think any Minister or any member of this Parliament would dispute that position. And of course, it is not a question of whether there is an agreement which is enforceable in the courts.That does not arise in that type of case. It is simply a question of honourable dealing between governments. So we come down to the real question - and really the only question in debate here - which is whether in fact such an undertaking was given. What is it that the honourable member for Farrer asserts as the undertaking? He says that at this meeting on 26th September 1969 - and I quote from his statement as reported at page 1897 of Hansard of 8th May 1970- he undertook that:

.   . before the Commonwealth took any action there would be further consultation with the States.

Since this matter has been raised, as I have said, I have been through the transcript to find any such undertaking, and I can find nothing in the record which could be read that way. I am not speaking in any narrow sense; I am not looking for precise words or anything of that kind. I cannot find anything in the record of that meeting, nor can I recall anything which in the circumstances and in the context in which we were talking could fairly be interpreted as giving any such undertaking. Honourable members must accept that that is my recollection and my considered view. Of course, I do not know what was in the mind of the honourable member for Farrer at the time, and I do not question that he now honestly holds the belief that he did give such an undertaking. That is apparent, I think, to all who know him. But I can say only that I myself know of nothing in the objective facts and in the record which would support that view. Indeed, quite apart from the fact that there is nothing in the record which would support that view, there arc a number of indications in the facts which point in the other direction.

Honourable members have heard the Prime Minister (Mr Gorton) record the history, to some degree, of this matter. There was the meeting of 3rd March 1969 which I did not attend but of which I have read the transcript. At that meeting the honourable member for Farrer, then the Minister for National Development, presented a written statement which is in the papers tabled, in which it was made quite clear, as the Prime Minister has pointed out, that the Commonwealth proposed to legislate, and discussion was to take place with the States on what would flow from that. At page 3 of the statement which he issued to that meeting, the honourable member for Farrer stated:

As (o off-shore minerals other than petroleum, the Commonwealth is of the view that it should proceed on the footing that it enjoys total rights outside the 3 mile limit. It proposes to legislate in pursuance of this position.

He later said - and I quote from lower down on page 3 of his statement:

However, as in petroleum, we feel that it would bc a pity to have separate administrations over territorial seabed and the outer continental shelf. We would hope that the States would be willing to administer the area beyond 3 miles from low water mark on behalf of the Commonwealth and that this administration might run concurrently with identical State legislation operating in the area from low water mark to the 3 mile limit. The competence and expertise of the State Mines Departments and their officers would be of considerable help in this matter.

He later went on to discuss the question of royalties. But the proposal put then was that the Commonwealth had decided to legislate outside the 3 mile limit. It was prepared, if the States legislated from low water mark to the 3 mile limit, to discuss the question of a regime for the administration of off-shore exploration for minerals other than petroleum, and this might take the form of a designated authority who might be a State officer deriving authority from both sets of legislation. The then Minister for National Development also said that royalties would be a matter for discussion, as with oil. The States took away that statement from the meeting of 3rd March 1969, and when they returned to the meeting of 26th September 1969, the first thing that occurred at the meeting, as honourable members will see from the transcript, was that they announced that the whole position which had been put in the statement on 3rd March was unacceptable to them. They used some quite strong language about it. They were shocked. It was unacceptable to them. The second point which they made was that they asked whether the Minister would take back to Federal Cabinet a proposal by them, a counter suggestion by them, that similar legislation should be passed by the Commonwealth and State Governments for exploration on off-shore minerals other than petroleum as had in fact been passed for petroleum.

There was some debate as to whether any undertaking would be given, whether there would be any agreement to take that back to Federal Cabinet. It is clear from the transcript that the then Minister for National Development gave such an undertaking to take it back to Cabinet. As the Prime Minister has said, that has, in fact, gone back to Cabinet, a decision has been given and the States have been notified of that decision, which was a rejection. That agreement was made and that agreement was carried out. The transcript then shows that they went on to a second matter, and that was what would happen to the grant of titles while there was no legislation of any type operating? There was a discussion, a very lengthy one which took up most of the meeting, on the procedure which would operate if the States granted titles, and, provided they referred the titles, before they granted them, to the Commonwealth, the Commonwealth stated it was prepared to agree to confirm them, whatever the regime ultimately established. That also was a matter finally agreed upon.

The rest of the meeting, one could say, was occupied to some degree by a discussion as to the date of the next meeting. We have all attended these meeting of Commonwealth Ministers with State Ministers. I have attended many meetings at which Mines Ministers were present to discuss off-shore oil legislation, meetings of Attorneys-General and meetings of Health Ministers, and I cannot recall one at which this type of discussion about the time of the next meeting did not take place. But it took place in the context rather of the machinery for getting together than in the context that there was any stipulation that nothing should be done until the next meeting time - which was then being discussed - arrived. That question was never raised. The State Minister: did not insist on it. It was never explicit. Indeed, I do not think that the honourable member for Farrer suggests that it was explicit. Rather it is his impression of the effect of talking about meeting.

I should have thought that had there been such a stipulation required by the States it would have been of some importance to them. But it is quite apparent from the record which has been tabled that the last thing which was done at that meeting on 26th September was to determine the communique. This is quite common at these meetings - to settle the communique, to be published to the Press, of what that meeting had in fact done. This took place; the communique was settled and has been published, and it is in the record of the papers tabled. The significant thing about this is that after some narrative, the communique recorded these understandings, it recorded the agreements that had been arrived at. It recorded the agreements I have mentioned and that there would be a reference back to Cabinet of the proposal of the States. It recorded the agreement for the interregnum period - because that was an agreement; it was an understanding; it was recorded.

But honourable members will see that the communique is strangely silent about this important suggested undertaking. It is not in the communique. Is this because it wai regarded as so unimportant, if it existed, that it was not worth mentioning in the communique? Is that the fact? I do not believe it. Or is it the fact that at that time, before the honourable member for Farrer had had this notion and communicated it very widely throughout the Commonwealth, that is at the end of the meeting, nobody believed that this particular undertaking had been given? It was a vitally important undertaking to the States if it was given. There is nothing expressed in the transcript suggesting that it was given. There is nothing in the communique which was prepared and published at the end of the meeting, and agreed on by the States and the Commonwealth, which contains a word of reference to it. My recollection, as 1 say, is that it was not given.

There is one other slight indication again as to the mistakenness of the honourable member for Farrer in thinking that this was given. In his statement to this House he referred to the correspondence between himself and the Prime Minister. It was made quite clear in the reply given by the Prime Minister that he did not wish if at all possible any undertaking such as has been suggested to bc given. The honourable member for Farrer perhaps thinks that he has breached those instructions. I am not suggesting that we would not be bound if he had, because the States did not know about the restriction on his authority. There was in fact this restriction on his authority. I do not believe that he did breach the instructions. Alternatively, can it be said that because there was in this instruction from the Prime Minister the words 'Do not give this undertaking if at all possible' that he was driven to the point where it no longer became possible to hold the position, so he whs compelled to give the undertaking?

If that is the position - and 1 understand from his statement in the House that it is his view of the position - I would think that somewhere in the transcript there would be a suggestion from the States that he ought to give the undertaking, that he was resisting it but finally was driven to the position where it was no longer possible to comply with the instructions. There is not one word in the transcript which suggests that he was being driven to that position. How on earth the honourable member could think that it had become impossible for him to carry out his instructions, I am completely at a loss to understand. Indeed, 1 do not believe that he did fail to carry out the instructions of the Prime Minister.

If the honourable member, who was then the Minister for National Development, did have to resile from the instructions and either because he was driven to it or considered himself driven to it then clearly this was an important matter. It was the one matter that the Prime Minister had thought was sufficiently serious to make the basis of his letter of instructions to the then Minister. I might add that the then Minister remained Minister for National Development for 1 day short of a month following this incident.

There is not the slightest suggestion that he ever told the Prime Minister that he had had to depart from the instruction or had had to give way. There is not the slightest suggestion of that in his explanation. Surely that is because, in fact, no such undertaking had been given and it was not necessary for him to tell the Prime Minister. Of course it was noi necessary. I know that after thinking about the matter the honourable member for Farrer subsequently came to his present beliefs. I repeat what I have said before: I myself believe that he honestly holds his present view. But I believe that he is entirely mistaken and I believe that this charge of dishonourable conduct against the Government is entirely without foundation.

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