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Thursday, 17 May 1973
Page: 2305


Mr N H Bowen (PARRAMATTA, NEW SOUTH WALES) - This Bill combines 2 quite separate and distinct objectives. In Part II it sets out to assert a claim by the Commonwealth against the States to the territorial sea, the continental shelf and certain internal waters. In Part III, on the assumption that its claims in Part II are correct, it proceeds to lay down unilaterally a mining code covering reconnaissance authorities, exploration permits and production licences in respect of petroleum anywhere in the claimed area. Petroleum is defined in such a way as to cover hydrocarbons whether in a gaseous, liquid or solid state. While Part II is designed to be a vehicle for testing, if necessary in the courts, the conflicting claims to sovereignty, if the Commonwealth's claims are not upheld in full the, system in Part III will be thrown into utter confusion and will no doubt have to be withdrawn and redrafted. For example, if the decision is that the States have sovereignty over a 3-mile territorial sea it is obvious that any meaningful mining code off-shore could only be arrived at in consultation with the States.

The Minister for Minerals and Energy (Mr Connor) in his second reading speech has in effect invited the States to make a legal challenge to Part II. Commonsense would seem lo dictate that Part III should not be in this Bill. In fact, even if the States made a legal challenge to Part II which was unsuccessful - that is, even if the Commonwealth claims which are set forth in Part II were proved to be correct - State co-operation in any really workable off-shore mining regime would be essential. Off-shore mining inevitably requires substantial on-shore installations and the use of port facilities, just to mention 2 items. It is, I suggest, a completely authoritarian and even a dictatorial way to proceed as the Government is doing in this Bill. The Opposition recognises that the Prime Minister (Mr Whitlam) in his policy speech referred to the territorial claim and reference to it was also included in the Governor-General's Speech.

We believe that this House should condemn the way in which the Government has sought to implement its announced policy. It is clearly a matter involving important State interests. It is, in regard to Part III - that is, the mining code off-shore - clearly a matter where State co-operation wm be needed. Yet, the Government is following a course which is becoming usual with it, of treating the States and their rights with complete disregard. It is with these matters in mind that I now move an amendment to the motion for the second reading of this Bill in the following terms:

That all words after 'That' be omitted with a view to inserting the following words in place thereof: 'this House, while not declining to give the Bill a second reading and accepting that the question of sovereignty should be determined, (a) deplores the method adopted by the Government of proceeding without consultation with the States especially in relation to the code which is contained in Part III of the Bill, and (b) is of opinion that consultations with the States for a co-operative regime for controlling the exploitation of the resources and generous royalty distribution to the States should commence forthwith.'.

Coming to the Bill itself, I shall address my remarks principally to Part II which deals with the Commonwealth's claim to sovereignty in this area. My colleague, the honourable member for Farrer (Mr Fairbairn) who was Minister for National Development in the former Government and is now Opposition spokesman on mineral matters, will be speaking later in this debate and he will deal particularly with Part III which covers the mining regime. Part II of this Bill is very similar to a provision in an earlier Bill which was introduced in this House by the previous Government. That particular Bill was the Territorial Sea and Continental Shelf Bill. It was debated in this House on 18th October last year but was not proceeded with at that time for reasons which I then stated in the House. The then Government was in the course of consulting with the States. I will not repeat what 1 said at that time. However, I remind the House that in the middle of last year a series of consultations took place between officials and Ministers of the Commonwealth and the States on this matter. It was discussed at the meeting of the Australian Minerals Council, which consists of the Mines Ministers of the States and the Minister for National Development of the Commonwealth. It was discussed also at a meeting of the Standing Committee of Attorneys-General.

On 10th August last year, with the then Minister for National Development I met in

Canberra with ministerial representatives appointed by the Premiers of all States to discuss this whole matter. In the communique which was issued at the end of that meeting it was stated, among other things, that the Commonwealth emphasised the desirability of removing legal uncertainties as to where sovereignty lay. It was also stated that while this was recognised by the States they all took the view that a possible series of legal cases was not a satisfactory method. One proposal put forward was that a preferable method in the long term would be to determine the question by constitutional amendment. It was suggested that this might be one of the matters to be brought before the Constitutional Review Convention. In the communique was also recorded a series of suggestions put forward by the States. Those suggestions indicated that the States strongly favoured a joint examination of other ways of dealing with the question apart from that particular legislation to be followed by a test case.

The communique recorded 3 points which I will recall to the memory of honourable members. Firstly, the states suggested a solution of the problem of off-shore minerals by means of complementary State and Commonwealth legislation. That is the immediate problem of mining. Secondly, they suggested a resolution of legal questions surrounding control of the territorial sea and the continental shelf by means of Commonwealth-State co-operation. That, of course, did not restrict the means which might be explored. One of those could be a test case and another could be by constitutional amendment. Thirdly, the communique suggested defining the internal waters of the States and the baseline from which the territorial sea is measured by means of consultation between the Commonwealth and the States.

The Commonwealth was, of course, in no way bound by these suggestions. But it was then apparent that it would be well worth while to confer at Prime Minister and Premier level to explore the possibility of securing agreement on the way in which this question of sovereignty was to be determined and the way in which the off-shore mining code was to be determined. On 5th September last year the then Prime Minister wrote to the Premiers suggesting a summit meeting. Over a period of time favourable replies were received from all the State Premiers. Unfortunately elections supervened before that summit meeting could be held. Now we find the present Government bringing in this Bill in virtual disregard of any interest which the States have in the matter. This is something which this House should deplore, and I suggest that the House should support the amendment which I have moved.

Of course, there are some people who take a simple view of this matter. They thank that if this Bill is passed and a case is then taken to the High Court to decide whether the Commonwealth claims in the Bill are correct this will clear up everything. This is obviously the view of those who brought forward this Bill, but I believe that this is far from the truth. The experience in the United States of America and in Canada is certainly against

I am strictly limited as to time. The Government has placed a time limit on this debate and there are many honourable members on this side of the House who wish to speak to this Bil!. I will have to confine my remarks and will give one example of the kind of problem which this Bill produces but does not solve. It is not the only problem; there are many, but this will serve as an example. I refer to the way in which this Bill deals with inland waters. Inland waters are those waters included in bays, gulfs, the estuaries of rivers, in ports and in harbours. At the present time, and since Federation, these have been treated as within the jurisdic- tion of the States. State laws run as to the control of small boats, as to maritime control and in other ways in these inland waters. This Bill, with some exceptions I shall mention in a moment, claims that the Commonwealth has sovereignty over all internal waters - that is, all bays, gulfs, estuaries, ports and harbours. This is provided for in clause 10 of the Bill. What is the present position? What is the extent of the exceptions which are provided for in clause 14 of this Bill?

At the time of Federation in. 1901 the extent of bays was determined according to the common law, and under the common law there were various tests. One of these tests was that using the headlands of bays as a baseline the waters could be closed off. This was according to what the human sight could see. I think days on which there was a fog were disregarded. Another test was applied. They took the territorial sea, which was then a 3-mile limit, originally based on the length of a cannon shot, and between the heads of bays, if it were not more than 6 miles, the waters were closed off and everything inside was inland waters. This was the position in 1901. Those waters, of course, were within the jurisdiction of the States just as much as if they were dry land. Since then there have been developments in the law relating to inland waters.

In 1928-9 a codification conference was held at The Hague. Australia indicated that it was prepared to go along with a 10-mile closing line for bays instead of the former 6- mile closing line. Subsequently we adopted a 10-mile closing line and the 'States took over the inland waters with a 10-mile closing line. There were international conferences on the laws of the sea in 1958 and the closing line, of 24 miles was arrived at by agreement between the nations of the world who signed the convention, including Australia. Following that convention we adopted a 24-mile closing line for inland waters - bays, gulfs, estuaries of rivers, ports and harbours. I recall that as Attorney-General in this House on 31st October 1967 I announced the adoption of this principle by the Commonwealth Government. The. Department of National Development then prepared maps which it supplied to the States in connection with off shore oil matters showing a 24-mile closing line across bays. These maps are currently in use. The States have been administering those inland waters on that basis.

The (first point about the Bill is that it claims that these waters are under the sovereignty of the Commonwealth Government but it then it goes on to give an exception. It states in clause 14 that in effect the States will retain those waters which were inland waters of this type on l&t January 1901 and so remain at the present time. That produces a number of difficulties. The first point is that on any view it seeks to take away from the States all inland waters in the bays which they presently administer and which are outside the 1901 limit. It goes back to whatever was the position in 1901, in spite of the fact that the Commonwealth Government as recently as 1967 has declared a 24-mile base line for bays, has announced it to the States, has supplied them with maps and the States have been administering inland waters within the 24-mile rule. But worse than that. It is extremely difficult to determine now what was the position of each individual bay, gulf, estuary of a river, port or harbour in 1901.

Not only were the common rules somewhat debatable; we also lack records of where the low water mark was in 1901. In fact, low waiter mark varies from month to month and year to year. There are no records to show what was the low water mark in many of these instances in 1901. It would be necessary to have a case, perhaps in respect of many bays., ports and estuaries, in order to try to produce evidence of the position of low water mark in 1901. A river may have changed its course so that it now enters a bay at a different point. An estuary may be entirely different from what it was in 1901. All that is Commonwealth territory, and a State, although it is quite appropriate for it to be. part of the State, has that area taken away from it by this Bill.

There is a further difficulty. Supposing that a court decides that the States are entitled to a 3-mile limit. I understand that constant reference is made to the fact that in the case of Bonser v. La Macchia the Chief Justice and Mr Justice Windeyer expressed the opinion obiter that the Commonwealth had sovereignty from low water mark. Again and again people fail to refer to the fact that other justices expressed a somewhat different view. For example, Mr Justice Kitto took a different view. Nobody ever troubles to refer to that fact. Suppose, for the sake of argument, as a possibility that the High Court decides that the States are entitled to a 3-mile limit. Com monwealth laws will be applying from low water mark across the 3-mile limit out on to the continental shelf. I hope and expect that the High Court will hold that the continental shelf is within the jurisdiction of the Commonwealth. Under this Bill the Commonwealth will still have sovereignty over all the odd bits and pieces around every bay, port, harbour and river estuary in Australia. This is a ridiculous situation and I seriously suggest to the Government that it is inappropriate to make this claim in respect of inland waters prior to determination of the base line for the territorial sea and continental shelf.

Because of the short time left to me and the desire to give other speakers an opportunity to take part in this debate I have had to confine my remarks to that one example. It is typical of the way in which this Bill would operate in disregard of State rules and to produce a ridiculous situation. The Opposition will be denied an opportunity of moving amendments because the guillotine will come down if the speakers on the list take their full time. Other honourable members are trying to get their names on to the list. We will be denied an opportunity to move amendments to remedy such defects. In fact, it will require considerable thought to draft appropriate amendments. This Bill was introduced last Thursday. Now the Government is seeking to rush it through this House with limited debate. We can say only that by the time this measure reaches the Senate it is to be hoped that there will be time for such appropriate amendments and that in the Senate, if the Government has not had second thoughts on some of these matters, such as that relating to inland waters, time will be given for debate at least of possible amendments that introduce a sensible and rational scheme into the legislation. I commend the amendment which I have moved to the motion for the second reading of the Bill.

Mr DEPUTY SPEAKER (Mr Armitage)Order!Is the amendment seconded?


Mr Street - I second the amendment and reserve my right to speak.







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