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Wednesday, 19 September 1973
Page: 1275


Mr FAIRBAIRN (Farrer) - As the Minister for Minerals and Energy (Mr Connor) said in his second reading speech, this Bill is completely identical in all respects with the measure which he introduced on 10 May 1973 and which he tried to railroad through with insufficient time for the Opposition to study and discuss. The Senate, however, would not be railroaded. We have now had time to study the Bill properly and it is apparent that a number of aspects of this Bill are not satisfactory.

However, there is no reason why this Bill should be hurried through the House. All the minerals so far discovered off-shore are of uneconomic ore grades to warrant production; and one must remember that the cost of mining off-shore is very much greater than the cost of mining on-shore. Gravels, sands and limestones are the only items at present mined or likely to be mined in the foreseeable future in Australia's coastal shelf unless one includes coal, which I believe at one point is mined slightly off-shore from the low water mark. Perhaps in 10 years time it will be possible to mine the manganese nodules at great depth on the abyssal plain, but not yet.

The only other reason I can see for the Minister wanting to rush through this legislation is so that he can upset the petroleum products legislation, which was freely agreed to between the States and the Commonwealth, and which is working to the great advantage of the nation. But the Minister does not believe in co-operative federalism. He believes in centralism with all power residing in Canberra, even if he cannot administer it. He wants to abrogate the Petroleum (Submerged Lands) Act.

The States still believe that the wisest course would have been for a similar arrangement to have been adopted for off-shore minerals as for off-shore petroleum; that is, joint arrangements where the States administered the Act, subject to Commonwealth agreement, and where royalties were shared. The Commonwealth Government has seen fit, however, not to approach the States for discussions, but has acted as if it was the only one with any power, jurisdiction or interest below low water mark.

I would have preferred to have seen joint arrangements again. But as this is not to be, and to resolve a position which has remained unresolved for 4 years, we have decided not to oppose the passage of the first 2 parts of this Bill. This could resolve, for what it is worth, the abstract question of who has sovereign rights off-shore. But we will oppose, both here and in another place, part III of the Bill, commonly known as the mining code. It seems to be quite ludicrous to contemplate the setting up of a separate federal Mines Department to duplicate the work already being carried out by the States in this area. No one - not even the Minister - has claimed that the States are incompetent.

The mining code which a Liberal government would want to see employed if we were in office, is one which maintained the federal system. In the areas off-shore from the States the administration should be in the hands of the States. We would not want to set up large and overlapping mines departments to administer each State's off-shore mining, always presuming that the High Court ruled that the Commonwealth did have sovereignty off-shore. In the United States, where the federal Government was ruled by the Supreme Court to have sovereignty off-shore from low water mark, the United States Government returned the powers, jurisdiction and administration of the area up to the 3-mile mark to the States. We should do the same.

The decisions over the allocation of exploration permits and licences to produce could be joint decisions - as they are in the search for oil - with either government having the right to veto a decision. The Commonwealth, for its part, should insist on adequate work requirements, release of information, and it should see that miners are required to pay suitable and adequate royalties.

We believe that the States should maintain and administer their laws in the territorial waters over such matters as boating, fishing, swimming, common crimes, etc. It would be quite ludicrous if the laws of the Australian Capital Territory applied from low water mark. Difficulty could be experienced in determining whether an alleged crime was committed abo ve or below low water mark, and hence in whose jurisdiction it was committed. The Commonwealth would of course still be responsible for the exercise of its constitutional powers such as defence, navigation, customs, exports and imports, etc. Royalties could be shared on an acceptable basis, as is the case at present under the Petroleum (Submerged Lands) Acts.

One of the complaints of the States with the presently proposed act is that State boundaries revert to what they were alleged to be at Federation. Presently accepted methods of determining State boundaries as used by the Division of National Mapping show the States to have more territory than they had at Federation - mainly because of the increased closing distance now used to close off internal waters, and because some areas, such as Wollongong, Portland, etc., have been built up since then. This Bill would, quite unjustly, take this increased area from the States. As a government we would propose that the State boundaries as shown on the Petroleum (Submerged Lands) Act should be the ones used in the mining code of the Seas and Submerged Lands Bill, and we would make certain that jetties, piers, etc., built by the States since Federation, would remain State property.

Finally, an area of great concern in this Bill is the wide powers of delegation by the Minister to any public servant and the very wide powers given to the Minister to grant and refuse, to impose conditions and to cancel. I believe that there should be a re-examination of the provisions of the legislation with a view to limiting, where practicable, the areas of discretion and delegated authority. I believe that there should be a requirement for the circumstances surrounding decisions and reasons for decisions to be made public and reported to the Parliament, at least in instances where it is reasonably practicable to do so.

I believe that there should be, in as many cases as are appropriate, the insertion in the legislation of objective criteria which the Designated Authority should observe in the exercise of his discretionary powers. Provision should be made for legal redress or appeal if it is believed, on an examination of the criteria or the reasons on which the decision was based, that there is arguable ground that there has been a failure to exercise a discretion properly. The legislation should be amended to provide for a regular report to the Parliament on the working and administration of the Act. An advisory authority could be established immediately, with Commonwealth and State representation, to collate information on Australia's present and future needs of all forms of fuel and energy and power, and to act as an appeals board for appeals against decisions of designated authorities.

One cannot escape the conclusion that the discretions conferred by the mining code give the Minister enormous powers. They are capable of being mis-used and of subjecting companies which have expended vast sums pursuant to authorities, permits or licences to onerous and dictatorial conditions or to cancellation of their authorities, permits or licences. Government objectives and government control could be achieved merely by administrative procedures and without legislation. We intend, therefore, to amend the Bill by deleting Part III in its entirety. I have circulated the amendment which I will move in Committee.

The Government already knew that the Opposition intended to oppose Part III, and that as a result it would not pass the Senate. So why bring this Bill forward again? The Government already has fulfilled the conditions of the Constitution which would enable the Governor-General to grant a double dissolution, but we all know that the Government is scared to put its position to the test. Perquisites of office are very acceptable after you have been in the cold for 23 years and the only way in which the sticky fingers of the Government can be lossed is if it is dragged screaming from the tart shop. It will make no move itself to test whether it still possesses the confidence of the people.







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