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Friday, 15 May 1970

Mr HUGHES (Berowra) (AttorneyGeneral) - To anyone with even the slightest sense of history this is a momentous occasion in the annals of this Parliament, because for the first time in a generation a government is subjected to a censure motion in circumstances where the result is perhaps not entirely clear. So it is an occasion to be approached with due solemnity. On the whole I think it has been approached with solemnity by the House since this debate began at 11 o'clock this morning. With very few exceptions - if one says there are exceptions it is only a matter of subjective impression, anyway - the standard of the debate has been high and with very few exceptions the debate has been characterised with a proper sense of dispassion. I hope in the remarks I propose to contribute to the discussion, to keep to those standards.

I would like to preface what I say by asserting, as I think every honourable member who has spoken in this debate has, that I do not for one moment doubt the integrity or the sincerity of the beliefs held by my friend the honourable member for Farrer (Mr Fairbairn) - I hope I can call him my friend both now and hereafter - which he expressed last Friday and today. While I find myself in profound disagreement with him I do not for one moment doubt that what he has said he has said from a sense of full conviction. However, I would like to draw the attention of the House, if I may as it were draw the strings together, and examine just what it is precisely that is involved in this debate. It is essential to the case that is being made against the Government today firstly that there should be shown to have been a commitment given on behalf of the Government at the meeting held on 26th September 1969 that the incoming Government, assuming it were the same Government in political colour, coming into office after the election, agreed that it would not introduce unilaterally legislation with respect of off-shore minerals without, as a necessary pre-condition of introducing that legislation, first consulting with the States. That is the first leg of the case that has to be made, if any case is to be made against the Government this afternoon.

Mr Whitlam - What did the honourable member for Lilley say to you?

Mr HUGHES - I did not hear. The second leg of the case - and this, I think, is the leg of the case upon which the House, if it wishes to view this whole problem with any degree of impartiality ought to fasten its attention - is whether, on the assumption that such a commitment was given by the honourable member for Farrer when he was Minister for National Development, it was deliberately and in breach of faith dishonoured by the incoming Government.

The view I want to put to the House is first that on a fair reading of the transcript, although a different interpretation has been offered, one could not, I suggest, conclude that as a matter of reasonable probability, let alone certainty - and certainty would be needed on this issue if the Government is to fall - an undertaking such as is asserted was ever given. But more importantly than that, if one is to look at the second part of the case made against the Government, those who seek to press this attack must demonstrate, and demonstrate according to a pretty heavy burden of proof - because this is, as everybody agrees, a serious charge - that those members who took office in the Government after the general election of October 1969 knew that the honourable member for Farrer when a Minister had given this commitment, but proceeded to disregard it before, and at any time up to, the point when the Cabinet made its decision, I think in late January, to legislate.

For the purpose of examining this part of the problem I want to repeat, if the House will bear with me, the concluding words of the statement made by the Prime Minister this morning. This statement is contained in the very last paragraph of his speech. I then wish to go on to something that the honourable member for Farrer said in the opening parts of his speech in this debate today. The Prime Minister's concluding words, in his statement, were as follows: 1 do not doubt that the former Minister has given his interpretation with sincerity. I hope that he will believe the same of the Government.

I ask the House to note that last sentence because, with the commendable forthrightness that we have come to expect from my friend the honourable member for Farrer, he - and I was listening to him intently as he spoke - opened his speech by saying that he accepted the sincerity with which the Prime Minister had put his interpretation upon the events. I think that is - and I hope the honourable member will agree with me - a correct repetition, in substance, of what he said this morning.

Mr Fairbairn - Yes.

Mr HUGHES - I have the benefit of the approbation of the honourable member for Farrer in what I have just put to the House. May I ask the House to examine with some care the consequences of the very frank concession of the honourable member for Farrer. May I ask the House to examine those consequences bearing in mind that in the House today the interpretation which, by concession, the Prime Minister put upon the relevant facts and events was that the Government never at any stage before deciding to introduce this legislation or, for that matter, since that time, took the view - whatever other view may be open, and other views have been expressed here today - that the Government had been committed by the words of the honourable member for Farrer when he was Minister for National Development at the September meeting.

We are dealing with a charge of bad faith, and if bad faith is to be asserted, it has not only to be asserted but also proved, because that is the essential question. It is always easy to assert bad faith, as the honourable member for Grayndler (Mr Daly) does. Allegations drip off his tongue. The honourable member for Farrer makes allegations, I know, with sincerity and upon consideration. But what I want to point out to the House is that if the honourable member for Farrer agrees that the Prime Minister's interpretation of the events is a sincerely held and sincerely believed interpretation, it disposes, I suggest, once and for all of any suggestion that the Government, which came into office in November 1969, deliberately - for that is what is involved in bad faith in this context - ignored or overrode or broke an undertaking, because essential to the proof of bad faith in this context is that the Government appreciated and believed that an undertaking had been given.

The next matter which I think ought to be mentioned in this part of the whole argument is that the gentlemen with whom the honourable member for Farrer was negotiating at the meeting held on 26th September 1969 were not - and I say this in no sense disparagingly - political babes in the wood. They were experienced, practising politicians used to negotiations, used to hard bargaining and versed in the art of negotiating on an inter-governmental level. It is very significant, I think, to compare the words that were used in the March 1969 conference. This has been referred to, but it is important in assessing whether a commitment has been given and, if given, broken. The words used by Mr Fife in the March 1969 conference were words in which that gentleman specifically requested of my friend the honourable member for Farrer an assurance that the Commonwealth would not legislate unilaterally until a further discussion had been held. It was apparently considered in July and August, when the correspondence took place between the honourable member for Farrer and the Prime Minister (Mr Gorton), that it was not an appropriate time to have another meeting with the State Mines Ministers, having regard to the busy programme in connection with the Budget and the forthcoming general election. So the honourable gentleman wrote to the Prime Minister and suggested that there be a letter sent. The honourable gentleman sought authority to say in the letter that the Government would not propose to legislate unilaterally until a further discussion had been held. The Prime Minister, as the House knows, put a very strong caveat or qualification upon that suggestion. The honourable member for Farrer very properly has not taken any issue with that caveat or qualification in his presentation of his case to the House.

The point is that when we come to the September meeting we find that there is conversation about other discussions being held. If these experienced Ministers from the States had wanted to insist upon a requirement or an undertaking being given by the Commonwealth that there should be no unilateral legislation until a further discussion had taken place, one would think that the request for such an undertaking would have been conveyed in the same plain and unequivocal words in which it had been conveyed during the course of the March discussions. I do not want to go through the transcript again. It has been gone through a fair bit during this debate. The transcript is innocent of any such proposal being put by the State Ministers. So the truth of the matter is that the undertaking given in March that there would be no unilateral Commonwealth legislation without further discussions was honoured in September.

I referred to the fact that these negotiations were conducted by experienced people. Honourable members know that at the end of a negotiation of this kind a communique or a Press release is usually issued. This case was no exception. One would venture to think that if the State Mines Ministers had really thought at the time, on 26th September 1969, that they had extracted, as it were - 'extracted' would be the right word to use in this context having regard to the Ministerial correspondence - an undertaking from the honourable member for Farrer that unilateral Commonwealth legislation would not be introduced without further discussion as a precondition, one would expect to find that in cold print in the Press release; because the other matter - we say the only matter that had been agreed upon firmly - was in the Press release, namely, that the Ministers representing the Commonwealth had undertaken to take the State Minister's point of view or counter proposal - call it what you would - to the Cabinet.

There is one other critically important matter which I ought to mention to the House. Honourable members have heard today a clear assertion by my colleague, the Minister for Education and Science (Mr N. H. Bowen) that at the time he did not understand that a commitment had been given on 26th September 1969 of the sort that the honourable member for Farrer believes was given. I am sure that the honourable member for Farrer himself would be the first to agree that my colleague, the Minister for Education and Science, would not make that assertion if he did not firmly and sincerely believe in it. The conclusion to which I have come, reading the transcript for myself with a great deal of anxious care, is the same as that of my colleague the Minister for Education and Science. The facts to which I have referred in relation to my colleague the Minister for Education and Science, I suggest, dispose of any suggestion that he has been guilty of a breach of faith in this matter.

The facts alleged today by the Minister for National Development and not contradicted prove, if they are believed - I believe them, and I think the House will believe them - that he was not guilty of any breach of good faith in agreeing to go along with the idea that Commonwealth legislation of a unilateral character should be introduced without a further full discussion with the States. Nobody on the Opposition side of the House has asserted that the Minister for National Development has acted in any way dishonestly or trickily in this transaction or in the whole series of transactions. They are 2 Ministers who must stand acquitted of any breach of faith in this matter. Against what other Minister can the allegation of want of good faith conceivably be alleged? I understand that the allegation is made against the Prime Minister. I stand here to refute it, and I refute it upon the simple ground that during the whole of this debate - when I say 'this debate' I include that of last Friday when the honourable member for Farrer first raised this question - the honourable member for Farrer has not asserted - and, I am sure, with complete truth he has not asserted - that he ever told the Prime Minister before the Cabinet discussions at which this decision now complained of was made that he had bound the Commonwealth or thought he had bound the Commonwealth by giving the commitment of the kind he now alleges.

This cannot but be a crucially relevant fact if we are to attempt any dispassionate survey of the history of this case. The only 3 Ministers against whom, on any even wild view, a charge of bad faith could possibly be levelled do not have it levelled against them. If those Ministers are, as I have shown, free of any taint of bad faith - and

I include the Prime Minister - who else? Nobody has suggested who else. I suggest, therefore, that on a dispassionate view of the whole of the evidence the Government ought to stand acquitted of the very serious allegation that is made against it in this House today.

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