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Tuesday, 6 April 1965

Senator McKENNA (Tasmania) (Leader of the Opposition) .- The Opposition has pleasure in supporting this Bill, which is designed to amend the measure passed in May 1960. The main purpose of the original measure was to ratify the international convention that had been entered into in 1954. The United Kingdom, being gravely concerned about the pollution of the North Sea, was the convening authority. Some 32 nations attended the conference and ultimately reached agreement upon the terms of a convention to be applied internationally. The convention was concerned with the pollution of the sea by oil, but not in all ways. As the preamble to the convention said, the Governments represented desired to take action, by common agreement, to prevent pollution of the sea by oil discharged from ships. The convention was narrowed to that one purpose. Article II stated -

The present convention shall apply to seagoing ships. . . .

Accordingly, pollution of the sea by oil from sources other than ships was not within the compass of the convention. The original arrangement, as set out in Article XV, provided that the convention should come into force 12 months after the date upon which not less than 10 governments had become parties to the convention, including five governments of countries which each had not less than half a million gross tons of tanker tonnage. So a very low standard was set for the operation of the convention.

Yet it took until 1957 to get the qualified ten to launch the agreement on a firm international basis. Accordingly, with the period of 12 months that elapsed, it was 1958 before the 1954 original Convention became really effective and it was not until two years later that Australia made its move. In 1960 the original measure to ratify the Convention was introduced. Then it took almost two years - until late in 1961 - for all the States of Australia to ratify the Convention under an application of the Convention to the territorial waters of Australia which came immediately within the competence of the States.

Australia's acceptance of the Convention was not lodged until 1962. So from the time the 32 nations first agreed to the Convention, some eight years elapsed before there was formal ratification of it by Australia. We now have amendments to the Convention before us for consideration. These amendments were effected at a Convention held in London in 1962 but they have not come before us until 1965. Again, a fairly long period has elapsed. Under the procedure adopted by the Government we now have to wait for the six States to pass complementary legislation before the Commonwealth Government proceeds to a formal acceptance of the amendments.

Senator Wright - What is the reason for that?

Senator McKENNA - I think what I am about to say might explain that partially at least. The amendments are to come into force 12 months after two-thirds of the Convention members accept the Convention. Apparently, there are 30 members of the Convention now. Three years after the amendments were settled, only 13 to date have accepted and ratified them so the amendments are still not in operation internationally.

Senator Wright - What is the province of the Australian States in this regard?

Senator McKENNA - We still have the necessity for the States to ratify the amendments as we originally had the necessity for them to ratify the main agreement in 1954.

Senator Wright - I have difficulty in seeing the reason for the States to ratify the amendments.

Senator McKENNA - Because of the provisions in relation to territorial waters. I propose to say something about that later. At the moment I am dealing with the lapse of time since the amendments were effected at a Convention in 1962. We have not moved in this matter until 1965 and even if we had been the first to ratify them, the amendments still would not be in operation as agreement by the required twothirds of the members has not been achieved. Moreover, as the Minister for Defence (Senator Paltridge) has indicated, it does not seem likely that this agreement will be achieved in the immediately foreseeable future.

Australia, of course, is one of the chief beneficiaries under this Convention and its proposed amendments. We are an island continent with an island State of Tasmania. The whole of this country is surrounded by water and so we are grievously affected if there is pollution of the sea by oil. Our ports, harbours and beaches are likely to be affected by such pollution. Our fishing vessels and gear are likely to be affected by the smearing of oil. Our marine life and bird life are also affected. These are all immensely important and I suppose there is no country in the world where the type of protection offered by this Convention will be more acceptable than it is in Australia. In our case also we have the largest extension of the terms of the Convention from our shores. Vessels of the Convention members are prohibited by their own countries from discharging oil into the waters within 150 miles of our shores except in the north from about Cape York to Port Hedland where the limit is fixed at 50 miles because of the proximity of other land masses. This is a great and mostly very adequate protection for Australia. The broad objectives of the amendments were set out by the Minister quite accurately when he stated -

The general aim of the amendments of the Convention is to improve its effectiveness by such means as extension of the types and sizes of vessels to which it applies, extension of the prohibited zones, and a total prohibition of the discharge of persistent oil in respect of new ships of over 20,000 tons gross tonnage.

The idea is that as new ships of that size are constructed, the builders should go to the expense and the trouble of installing separators which will remove the oil from matter that otherwise would be discharged into the open sea. The rest of the amendments are of a relatively machinery nature. I notice that in 1960 at the time we ratified the Convention, only about 12 nations had ratified it. At that stage, there were notable absentees among the major shipping nations. The United States of America had not ratified the Convention nor had Russia, Japan, Greece, Italy and quite a number of other countries.

In the interim, the United States has come in. According to the Australian regulations and statutory rules which listed the nations who were signatories to the Convention in 1962, the United States has since ratified the Convention but I have no knowledge whether Russia, Japan, Greece and Italy have ratified it and these are all very large shipping nations. If the Minister has the information, I should be grateful if he would inform us at some stage of the proceedings whether those four countries in particular have yet ratified the Convention. The Minister might indicate also if he can whether any and if so what, nations other than the four I have mentioned who are in the major shipping category have still abstained from ratifying the Convention.

It is exceedingly important that as many shipping nations of the world as possible should be bound by such a Convention as this which offers protection to everybody. Even countries that are not adjacent to the sea or have no boundaries contiguous with the sea are involved in the preservation of fish life. The United Nations Economic Scientific and Cultural Organisation itself played a major part in the various conventions. It has been concerned about the non-contamination of food supplies and the protection of fish in the sea. So the countries of the world at large derive a benefit from this particular Convention if it is implemented whether they have a sea border or not.

I now come to the question raised by Senator Wright a little while ago as to what should be done in implementing this Convention. I addressed myself at length to this particular subject in 1960 and had something to say about the method that I suggested might have been adopted. 1 note that Senator Kendall participated in the same debate and gave us some very interesting information on some aspects of the Convention. At this stage I should like to read two passages from what I said in 1960, because they are still applicable today and, in the light of recent High Court cases, they may be of even tighter application than they were when I spoke in 1960. On that occasion I said -

It occurs to me that perhaps the external affairs powers of the Commonwealth might have been invoked to legislate for both territorial and extraterritorial waters. That power has not been adequately explored by judicial decision. In the case of R. V. Burgess ex parte Goya Henry various views were expressed by the court, but the majority of the Court suggested a number of tests which I think this Convention might well have survived. The majority of the Court suggested the application of tests such as these: Has the subject matter sufficient international significance? I think we can answer " Yes " to that one. Has the subject matter itself an external aspect? Nothing could be truer than that the sea has a definitely external aspect and an international aspect. Does the subject matter affect the external relations of the Commonwealth? Again I answer, " Of course it does ". The pollution of the sea in the neighbourhood of any country must cause disruption of the relations between the country offended and the country offending. Finally, how many nations are concerned in the treaty? Even with the present limited subscription of twelve nations, I would say that the Convention had attained such a magnitude that our High Court might say it had sufficient prominence for this Parliament to invoke the external affairs power.

I then dealt with the other aspect to which I should now like to refer, and said -

It is interesting for me, as a member of the Constitutional Review Committee, to recall that the Committee unanimously recommended that there should be a power in the Federal Parliament over navigation and shipping concurrent with that of the States. In reaching that unanimous conclusion the Committee adverted to the difficulties that were being experienced in Australia in giving effect to International Labour Organisation conventions relating to shipping. There are some 20 of those conventions, and practically none of them has been applied in Australia, because it would be necessary for all six States to bring down legislation in each instance, and it is not easy at any time to persuade all the States to agree. Interestingly enough again, the Constitutional Review Committee in one lengthy paragraph referred to this particular Convention that we are talking about. It pointed to the delay that was being experienced in implementing such an important Convention, owing to the difficulty of getting six States to come into line on the matter.

The Minister for Shipping and Transport (Mr. Freeth), in his second reading speech, raised the question as to whether the Commonwealth should have acted unilaterally in accepting the Convention without reference to the States. The Deputy Leader of the Opposition in another place proposed that the Commonwealth should have done so.

The Minister rejected the suggestion on the basis that there had been Teal accord between the Commonwealth and all States in regard to the acceptance and policing of the Convention and that moreover in harbours and ports throughout Australia the States are in charge of the facilities that are so freely used for the purpose of preventing oil pollution. He said that it was better to carry on with their concurrence.

On that point, I merely say that it would be easy enough to arrange with the States that are co-operative that their servants or agents should become the agents of the Commonwealth. There would be no difficulty about the Commonwealth legislating to provide that, when officers of that kind acted, they did so under Commonwealth power. There would be no necessity for the States then to legislate specifically for the implementation of the terms of this Convention within territorial waters under their jurisdiction. It may have been better to have embarked upon that course at the beginning. lt was not done, and the Minister for Shipping and Transport prefers to continue as he began - with State co-operation and State legislation.

In another place, The Deputy Leader of the Opposition drew attention to the fact that the States are not quite free agents in regard to shipping laws, that they are bound by the Merchant Shipping Act of 1894, and that the validity of any legislation they pass which in any way varies the law depends upon the confirmation of the United Kingdom Parliament. I suggest to the Minister that that confirmation was not sought when the States concurred in the implementation of the 1960 legislation that we passed. If the Minister for Defence, who is in charge of the Bill in this place, is in a position to comment on that matter, I should like to have the benefit of the. Government's thinking upon it. I should like to know whether it is proposed that, when the States pass legislation that is complementary to the legislation now before us, there will bc any obligation upon them to obtain confirmation from the United Kingdom.

Senator Wright - How would this legislation affect the provisions of the Merchant Shipping Act?

Senator McKENNA - The Merchant Shipping Act applies to the registration of ships and their behaviour generally, and power is reserved to the United Kingdom to veto, if need be, any variation by the States of the laws that they have enacted. If the States vary their laws, they need that ratification. I invite the Minister for Defence to indicate whether that aspect of the matter has been considered. I put forward the argument that, if ratification by the United Kingdom is needed, it is infinitely better for the Commonwealth, if it has the power, to proceed alone.

I direct attention to the two recent civil aviation cases in which the High Court held that, relying upon the Paris Convention and I think the later Chicago Convention in relation to civil aviation, the Commonwealth has complete power in certain fields, including even intrastate activity. In other words, the Court has held very clearly that in relation to air safety the Commonwealth has complete power to legislate, irrespective of whether the traffic is intrastate, interstate or international. I should say that, in the view of the High Court, these two cases have extended the notion of the external affairs power to the point where, in a case like the one now before us - the prevention of the pollution of the sea by oil - the Commonwealth could act validly in relation to both territorial and extra-territorial waters. In my opinion, in the circumstances that is a very sound argument. It is only of relative academic interest at the moment, because the Government is seeking State cooperation. We are not opposing that procedure, with which the original Act was floated, but we draw attention to it in the belief that it is better, and of course quicker and easier, for the Commonwealth, if it is armed with power under the external affairs provision, to proceed alone. This opens up the possibility that we may well go ahead with very many other international conventions relating to shipping.

Senator Hannaford - How would the States view the suggestion?

Senator McKENNA - The Minister has indicated in his second reading speech that he has had the utmost co-operation from the States. I cannot imagine that the States would not be as concerned as the Commonwealth is about the cleanliness of the sea, or its non-pollution by oil. There need be no change in the physical conduct of the States if the Commonwealth said: " We now have the power. It is simpler, quicker and more effective and instead of your passing legislation, would you act as our agents in using your facilities and policing this law in territorial waters? " The whole thing could be done by an authority under Commonwealth power to the State instrumentalities to act.

Senator Wright - Mr. Renshaw would view that suggestion very favourably in relation to the Dubbo air service.

Senator McKENNA - As the honorable senator knows, I have a general feeling for more ample powers for the Commonwealth.

Senator Wright - I think it is the inopportune exertion of those powers that gets up the backs of the States.

Senator McKENNA - I do not think I can fly into the field of aviation in a debate on this Bill.

Senator Wright - My last interjection was not intended to be applied only to aviation.

Senator McKENNA - I do not intend to leave the sea and take to the air in a debate on this Bill.

Senator Paltridge - I think it unlikely that we would get the same measure of co-operation.

Senator McKENNA - It varies with the subject matter. We have a demonstration of, at least, no cohesion at present in the field of air services, but the reverse is true in the field of pollution of the sea by oil. The Minister had this to say -

Close collaboration between the Commonwealth and the State Governments has always existed in all matters relating to the pollution of the sea.

Senator Hannaford - And so it should.

Senator McKENNA - That is right. The Minister continued -

There has never been any difference of opinion between the States and the Commonwealth on the necessity for such legislation and the complementary nature of the legislation now enacted is of practical assistance in policing these measures because the States have much better facilities than the Commonwealth for preventing pollution within ports and harbours and within their own territorial waters.

As the Commonwealth and the States have the one common purpose, I cannot imagine that the close collaboration of the States with the Commonwealth would evaporate. If the Commonwealth, under a power which is upheld by the High Court, says: "You may proceed alone ", how can the States object to the proper exercise of Federal power, particularly when the existence of the power is now to a very high degree certified by the High Court? The analogy between safety in the air and non-pollution of the sea is, I think, very close.

Senator Wright - The States have a very direct interest in the cleanliness of their own beaches and harbours.

Senator McKENNA - Indeed they have. As I visualise the situation, I do not see that anything need to be taken out of the hands of State instrumentalities and officers. The legislation could be implemented without all the delays that are consequent upon State legislation and the need to wait until that is completed. There was a delay of almost two years after the Commonwealth passed the Pollution of the Sea by Oil Act in 1960 until all the States legislated. There is always that risk in these matters, as indeed we saw in the field of civil aviation where a State begins to diverge when different circumstances crop up in different States. An international agreement can be whittled away bit by bit. I cannot imagine a field in which there is a greater need for uniformity and for one clear authority than in the field of air safety. Although the need may not be quite so urgent in the matter of the policing of an international convention of the type we are discussing, I do see the desirability of eliminating the possibility of variation.

I shall close on the note on which I began: This Convention is concerned solely with the pollution of the sea by oil discharged from ships and, as this country and other countries are faced with the possibility of the discovery of oil in the sea, pollution may come from that quarter. I realise that I am getting outside the compass of the Convention we are discussing when I draw attention to that possibility, but the real evil to be guarded against is pollution of the sea by oil. Oil from the sea bed might be in a different category from fuel oils involved in this legislation. Different conditions may operate. A conference has been held between representatives of the Commonwealth and the States to discuss who will control oil wells discovered in the sea beyond territorial waters. I hope to be informed whether that conference addressed its mind to the question of pollution of the sea by oil coming from those wells. There may be no great problem involved. I do not know, and I am really seeking information.

If the Minister is in a position to proffer comment in that respect I certainly would be very interested to know whether that subject was discussed at the conference between the Commonwealth and the States and, if so, with what result. Is the evil at which the Convention aims likely to occur during oil search or oil discovery in the sea bed? With those comments I indicate that the Opposition quite cordially supports the Bill.

Senator O'BYRNE(Tasmania) [4.57J. - I enter this debate to make some observations which I. believe to be relevant to the important matter of pollution of the sea by oil, and also to offer my congratulations that this amending Bill has been brought forward to expand and extend the purposes of a very worthy international agreement. I have before me a resolution of the Final Act of the International Conference on Prevention of Pollution of the Sea by Oil and of the Conference of Contracting Governments to the Convention signed at London on 12th May 1954. The resolution, which followed the original Convention at the International Conference on Prevention of the Sea by Oil, reads as follows -

The Conference have noted that the coasts and coastal waters of many countries arc seriously affected by oil pollution, the results of which include great damage to coasts and beaches and consequent hindrance to healthful recreation and interference with the tourist industry, the death and destruction of birds and other wild life, and probable adverse effects on fish and the marine organisms on which they feed. There is widespread public concern in many countries about the extent and growth of this problem.

I have quoted portion of the resolution because I believe we are breaking new ground by introducing in this legislation the view that there should be total prohibition of the discharge of persistent oil in respect of new ships of gross tonnage of over 20,000 tons built in Australia. It is my view that to prescribe 150 miles as the limit within which no oil should be drained into the sea goes part of the way towards protecting our own coastline; but to extend that idea to ships of over 20,000 tons is I think the long range objective of the Convention. It should be accepted as a rule that no oil is to be discharged on any pf the marine highways or in any of the seas of the world. After all, 150 miles is a relatively small part of the width of either the Atlantic Ocean or the Pacific Ocean, yet we have read of bottles thrown from beaches or ships in one hemisphere which have drifted to and been recovered in another hemisphere. We have read of the amazing Kontiki drifting expedition and of the regularity of currents that flow across the oceans. We know that the prevailing winds which blow across the Indian Ocean to the Western Australian coast cause currents that move to the southern tip of South America and South Africa.

Eventually we may expect the various countries which are signatories to the Convention to pass legislation to prohibit the discharge of oil from ships into the sea. We know the damage that can be done when oil is deposited on water. It has been restated in the debates here and in another place. Oil and water will not emulsify. When oil is tipped into the sea, it will remain on the surface until it finds a place to which to cling, whether this be a beach, the side of a ship, or a rocky coastline. It will eventually find some place to rest, or it will float endlessly on the sea, but not necessarily 150 miles or 50 miles from the coastline. It is pleasing to see the establishment of a precedent by which Australia, as a country with wider vision on the subject, is prepared to prohibit the discharge of oil from any vessel of 20,000 tons gross tonnage built in Australia and flying the Australian flag. I understand that at present we have no ships of that tonnage. I hope that the time will come when we shall see an extension of this provision to cover all ships flying the Australian flag. This will help to show other countries the benefits that can accrue from making the discharge of oil from shipping an offence.

The use of oil as a fuel has increased tremendously in recent years. Industry would grind to a halt without oil. We have become almost completely dependent on it. Oil must be transported from places where it is plentiful to places where it is needed but where it does not occur naturally. The amount of oil being transported from place to place is also increasing. I understand that some ships under construction will be capable of carrying 150,000 tons of oil. Very close scrutiny and supervision should be maintained of the cleaning out of those ships as they visit this country. The safest way to ensure that oil will not be deposited in the sea will be the provision of some method of cleaning out the ships before they leave port after discharing cargoes. Surely it is not beyond the capacity of our scientists to find some method of cleaning out a vessel quickly to enable her to take on sea water ballast, get back to the port of loading, and discharge the sea water into the sea as clean as it was when it came out of the sea. I hope that this matter of providing a facility which will allow all vessels to observe this international code is in hand.

As a matter of courtesy, this legislation should be referred to the States in order to obtain their co-operation. I am sure that, for self-preservation and protection, the States would have no hesitation in ratifying this treaty. Everybody seems to be making a very leisurely approach. It is 11 years since the resolution was carried at the international conference. I think the original legislation was presented here in 1962. Now, three years later, we do not expect quick action on the part of the States but we expect to get their co-operation. If the States feel inclined to exercise their rights, there should be plenty of opportunity for them to decide at their leisure.

A new problem arises from the possibility of oil escaping from wells that are being drilled under the sea. Initiative should be taken by the Australian Government at some level - perhaps in relation to the oil drilling subsidy - to specify some emergency measure, such as the provision of the temporary boom around a rig, to handle a sudden gusher of oil from the sea.

Senator Hannaford - Gushers can be controlled these days. Oil does not escape, usually.

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