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Friday, 15 May 1970


Dr MACKAY (Evans) - On 31st October last a quotation appeared in the national Press-


Mr Calwell - What is going on here?


Dr MACKAY - The right honourable member for Melbourne has arrived at last. As 1 was saying when the honourable member interjected, having just arrived, I made a statement on 31st October last at the time when the then Minister for National Development, the honourable member for Farrer (Mr Fairbairn), had indicated what was to me a staggering bombshell regarding his political future. L was quoted in the Press as having said this:

When a man of the integrity and experience of Mr Fairbairn makes such a statement it commands the attention and respect of the whole Party.

I believe what I said then to be true now. The honourable member for Farrer is a man of great integrity. He is a person of great experience. 1 believe that what I have said will bear any scrutiny if one considers the debate which has been going on in this House for the last few hours and the comments and discussions that have occurred in the last few days. Nevertheless, what others on this side of the House have said also indicates that the honourable member for Chisholm (Sir Wilfrid Kent Hughes) was correct in saying that there is a possibility of considerable difference of opinion regarding the same circumstances and the same words. What has been said about the honourable member for Farrer I believe can be said across the whole nation with regard to the Minister for Education and Science (Mr N. H. Bowen). His integrity is beyond dispute. He is a trained Queen's Counsel who was present at these same meetings and who has made statements to this House that were, without any kind of equivocation or desire to hide behind words, statements coming straight from his own depth of experience.

He said that as one who had been present at these meetings he had read and re-read the records with anxious care - not anxious in the petty way that the Leader of the Opposition (Mr Whitlam) suggested, that is anxious to find excuses, but anxious to discover whether, in the words that the honourable member for Farrer was using, there was not an interpretation that thus far had escaped him. His conclusion was: I cannot recall anything or find anything in the records to justify changing my opinion that no kind of commitment had been entered into on behalf of the Commonwealth by the then Minister for National Development that would justify the kind of censure motion that stands before us today in the name of the Opposition.

We have listened to some very intelligent and very capable debating and we have listened also to some arrant nonsense. The last speech that was heard from the honourable member for Grayndler (Mr Daly) made us aware of the deep concern that he has at the flight of the Government, of this once great Party, as he put it. Personally, however, I would prefer his anger, vituperation and scorn to the broad grins of bis bereavement, the sally of his sorrows and the giggles of his grief. So let us get back to the facts that have been put before us in this argument. First of all the Leader of the Opposition came in and tried to make a debating point without mentioning dates, saying that an undertaking had been entered into. He quoted words from the minutes of a meeting to indicate that the then Minister for National Development had undertaken to the State Ministers that there would be consultations before this legislation was brought down. He did not mention that the date of that meeting was 3rd March last year. He said that there was an undertaking in the words that he read. But as one studies the circumstances that follow this, not only were there consultations that did take place discharging such an undertaking subsequently, but also there was some correspondence between the Minister and the Prime Minister (Mr Gorton). The correspondence that took place several months - 4 months - later was to do with this particular point of whether or not the Minister in subsequent discussions should enter into any kind of undertaking. The Prime Minister urged that the Minister, if at all possible, should avoid doing so.

If the circumstances are these, how could it possibly be, if there was a binding undertaking entered into on 3rd March that was not to be discharged by the meeting about to take place, that the Minister was under any conception or misconception that in going to this meeting he was going there to avoid entering into any kind of commitment? It is my suggestion that he went to that meeting knowing perfectly well what the Prime Minister required, what the desire of the Leader of the Government was, and in this meeting he saw no reason whatever to inform the others that anything that had been said at the meeting of 3rd March was now to be vetoed or abrogated. The reason was, I believe, that he did not at that time understand there to be this continuing commitment that before the legislation was brought down there would be fundamental rediscussion of certain issues. That certain issues would be discussed it is admitted was agreed and they were actually subsequently discussed and this particular commitment was discharged. So I suggest that if the Leader of the Opposition had made the dates clear the point that he brings up. which in his presentation was one of his major issues, would indeed have disappeared.

We then heard from the honourable member for Cunningham (Mr Connor). He told us that 2 of the bench of 5 of the High Court made comments at the time of a judgment in the case of Bonser v. La Macchia. This judgment did not extend to the entire court. Three of the judges did not comment but the Chief Judge did. He indicated that in his opinion the Commonwealth had sovereignty from the low water mark out to the end of (he continental shelf. The argument that is brought forward by the honourable member for Cunningham is that the Chief Judge having thus spoken a new factor now emerges. The honourable member concludes that thus there had to be negotiations. 1 suggest that while the honourable member may come to such a conclusion - and he is skilled in these matters - it is equally possible for others to come to a very different conclusion.

I suggest that it is possible that the Chief Judge having said such things and in the midst of all these discussions between the Commonwealth and the States, that is that in his opinion and in the opinion of one of his brother judges the Commonwealth had sovereignty from everything below the low water mark, this brought a new dimension into this matter. This could equally well have meant that the discussions or negotiations - to use the honourable member's words - ought to halt at that point because there had now to be another decision made, a decision which the Commonwealth is seeking in this legislation, the final and irrevocable decision to be made by the whole bench of the High Court which is the supreme authority to determine who has the sovereignty over these territorial waters. So I suggest that there is indeed a different interpretation possible on this issue from that arrived at by the honourable member for Cunningham.

I do not want to take much more time in this debate but I must say one or two things. I believe that there are 2 sets of issues. Firstly, there are the issues of what was done in the circumstances, and - equally important in my book - how these things were done. In terms of what was done, I have presented in the last few minutes my view that the Commonwealth is under an obligation to have the High Court decide the sovereignty over this area. I believe it is proper in so proceeding. Personally I would like to have seen this achieved in harmony and goodwill with the States, with perhaps the Commonwealth paying the expenses of the court case because it is not possible under our Constitution, as I understand it, for there to be any kind of hypothetical judgment or hypothetical case presented for judgment by the High Court, and some kind of actual litigation must proceed. I would like to have seen every bit of skill brought to bear on the situation to bring about an amicable approach whereby the Commonwealth and the States would have agreed not to go as belligerent contenders but as honest seekers after the actuality. I am very sorry that it was not done in this way. Of course, these 2 issues are now past but there are other sets of issues.

The other matters we are discussing today also fall under 2 heads. There is first what the Government understood to be taking place. There is, as I see it, a distinct case to be made that in the mind of the Prime Minister (Mr Gorton), as he presented the matter to us today, there was his own consistent attitude through it all. Let us consider the circumstances. A Prime Minister is always busy with all the affairs of a vast number of portfolios. This was particularly so because of the advent of the elections and the political upheaval of the time. It is quite conceivable and I am going to give the Prime Minister the benefit of any doubt of this situation anyway. In this case he gave his instructions to the Minister for National Development to go as hard as he possibly could to avoid making commitments. He expected that this would be the situation - the actuality. He was informed of nothing to the contrary and indeed any ordinary examination of the transcripts reveal nothing to the contrary. So there is every justification in my mind for the Prime Minister to retain the attitude that no commitment had been entered into.

But on the other hand, of course, there is the position of the State Mines Ministers. The Australian Minerals Council at that time could have had a different understanding of the question, from the tone of conversations, the kind of asides that were made and the state of mind or, if you like, the atmosphere of the meeting. But, of course, one has to take into account the fact that the Minister for Education and Science was present at the meeting. He is a trained counsel, and he has informed this House - and I believe with great certainty and sincerity - that the meeting did not arrive at any such conclusion. But, nevertheless, there were also many incentives for the State Mines Ministers and their advisers to be of one mind, for their being interested parties in this whole affair. They were, indeed, fighting together for a status quo that was under challenge. They were fighting together for the whole quest:on of sovereignty which overlay the situation. Therefore, I believe that there is every reason to accept the view that there could be honest differences of opinion, and this is how I personally interpret the question.

One or two others matters have been brought up by way of criticism, concerning the method and the timing of this matter. For instance, it has been stated that there was no issue of urgency, so why could nol the question have waited for some months when the new government was in office and the whole thing could be negotiated at a more leisurely pace. Do not let us forget the circumstances applying in Australia at that time. There was a mineral boom. Company after company was beginning to talk about off-shore exploration. Advances had been made in technology in this field. Articles had been written and experiments had been made, for example, of actually bulldozing with diesel power under the waters of the continental shelf. Advances had been made in off-shore drilling and off-shore seismic and geophysical work. The situation was developing rapidly, and indeed the minutes of the meeting indicate that those taking part in the discussion expected increasing numbers of applications to be made for permits to explore for minerals off-shore. So there was a pressure of time to arrive at a conclusion. I set aside, therefore, the criticism that there was no need to proceed with expediency in this situation.

But one of the areas where criticism is valid and is also, I believe, possible of exaggeration is in the way in which each individual member of the Minerals Council was informed of the Government's decision. There has been criticism of the Prime Minister's statement that each individual member had been informed of the decision prior to the Governor-General's Speech. We are told that a telegram was sent to each member of the Council on the day before the Government's decision was announced. Was the receipt or non-receipt of that telegram a matter of great moment or consideration? In some circumstances in business affairs today the evidence that something has been posted is held to be evidence of the notice having been properly given. In other cases receipt of a registered letter is held to be proof of delivery. But what about a Minister of State? Surely a Minister of State, by virtue of his office, his equipment, his whole staff and all the rest, is the kind of person for whom a telegram sent to his official office should be adequate notice

Then, of course, there is criticism of the fact that a telegram was sent only the day before the decision was announced. This criticism is on stronger ground, but do not let us forget that this happened at an unusual time. It was a time of election. It was a time of the formation of a new Government. It was a time of considerable political stress. I believe that the more relevant question is: If there had been earlier notice, would it have achieved any purpose whatsoever? I think it was known that the matter was already decided, and that there was indeed to be a presentation of legislation on this point. It was not a matter therefore where there was the possibility of further negotiations. An offer had been made and then there was a counter offer, but the counter offer was rejected. It was then simply a matter of courtesy to inform the State Ministers prior to their hearing it from the official source of the Attorney-General's Speech. I think this was discharged, although personally, in hindsight, one would have wished it to be done perhaps a little more graciously, a little earlier.

Much has been made about discussions between the Commonwealth and the States on the 3-mile limit, the authority beyond the 3-mile limit and the entire continental shelf below the low water mark. How vital is this consideration? There was to be a new type of legislation for minerals as distinct from petroleum. Sovereignty had been asserted by the Commonwealth over part of the shelf in any case. There was no question in this whole business - I will conclude on this point because I want to stress it - of the Commonwealth depriving the States of their right to administer the whole of the continental shelf as always. There was no question of the Commonwealth depriving the States of their right to collect royalties as always. What then was at stake? The only issue in the final result was that of sovereignty over the first 3 miles. This was the legal issue. It was not in the matter of administration or income; it was a matter which concerned only ultimate legal sovereignty.

I conclude by saying that this matter has not achieved the great storm that many of our opponents would like to have seen in perspective and in proportion. It has been opposed by the States for reasons that are easy to understand. The States, as we all know in these days of an advancing and growing Australia, with tremendous developments taking place in this very field of mineral development, have deep emotional feelings with regard to their own sovereignty. But my proposal is that there should be a joint approach to this litigation. I think we should have done this before. I hope the Commonwealth will see its way clear to establish an inquiry into what royalties the States might have expected and their right to administer them, so as to guarantee an economic return to the States. All this should take place within certain natural and agreed guidelines that have the national interest as a whole at heart. This amendment expressing want of confidence in the Government is totally unjustified. While 1 continue to have deep respect for, and I hope a continuing friendship with, the honourable member for Farrer, on this occasion I know that he will not resent the fact that we disagree over interpretation.







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